UNITED STATES OF AMERICA v. TYRONE DEXTER CHRISTIAN
No. 17-1799
United States Court of Appeals, Sixth Circuit
Decided and Filed: May 31, 2019
Reargued En Banc: March 20, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0111p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYRONE DEXTER CHRISTIAN,
Defendant-Appellant.
No. 17-1799
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:15-cr-00172-1—Robert J. Jonker, Chief District Judge.
Reargued En Banc: March 20, 2019
Decided and Filed: May 31, 2019
Before: COLE, Chief Judge; MOORE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges.
_________________
COUNSEL
REARGUED EN BANC: Lucille A. Jewel, UNIVERSITY OF TENNESSEE, Knoxville, Tennessee, for Appellant. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON SUPPLEMENTAL BRIEF: Lucille A. Jewel, William A. Beasley, Benjamin A. Johnson, Benjamin K.P. Merry, UNIVERSITY OF TENNESSEE, Knoxville, Tennessee, for Appellant. Jennifer L. McManus, Timothy P. Verhey, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ROGERS, J., delivered the opinion of the court in which GIBBONS, SUTTON, GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, JJ., joined, and WHITE, J., joined in the judgment. THAPAR, J. (pp. 12–19), delivered a separate concurring opinion in which NALBANDIAN, MURPHY, and READLER, JJ., joined. WHITE, J. (pg. 20), delivered a separate opinion concurring in the judgment and in
Part I of the dissent. GILMAN, J. (pp. 21–44),
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OPINION
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ROGERS, Circuit Judge. Based on a five-page-long search-warrant affidavit—which included evidence from a confidential informant and other sources, a controlled buy, and direct police-officer surveillance—a magistrate determined that there was probable cause to search 618 Grandville Avenue, Tyrone Christian’s home, for evidence of drug trafficking. That search uncovered a large amount of heroin, some cocaine and marijuana, and two loaded guns. Convicted of various drug and firearm crimes, Christian argues on appeal that the search was not supported by probable cause. Christian questions each factual assertion in the affidavit as insufficient to show probable cause, while the Government contends that a common-sense examination of the totality of the circumstances, in light of the deference that a court owes to warrant-issuing magistrates, is required by cases like Illinois v. Gates, 462 U.S. 213 (1983), and District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). For the reasons that follow, the district court properly denied Christian’s suppression motion.
I.
On September 3, 2015, Officer Thomas Bush, a law enforcement officer for the Grand Rapids Police Department, submitted an affidavit in support of a search warrant for the residence of suspected drug trаfficker Tyrone Christian at 618 Grandville Avenue in Grand Rapids, Michigan. The affidavit provided the following information in support of Officer Bush’s belief that there was probable cause to search Christian’s home: (1) Christian had a history of drug trafficking at 618 Grandville, which included drug-related arrests after two separate raids in 2009 and 2011, along with four prior felony convictions for drug-related offenses between 1996 and 2011; (2) a “credible and reliable” informant had contacted law enforcement in December 2014 to notify them that Christian was dealing drugs; (3) law enforcement successfully conducted a controlled buy from Christian in January 2015; (4) between May and September 2015, four
different subjects told law enforcement that Christian was dealing drugs and that they had personally purchased drugs from him; (5) law enforcement had established surveillance at 618 Grandville and observed a man named Rueben Thomas “walk away from the area of [the residence] and leave the area in a vehicle,” after which officers stopped Thomas and discovered heroin in his car; and (6) Thomas subsequently “admitted that he had recently been at an address on [Grandville Avenue],” but he “denied being at [Christian’s residence] contrary to observations of the law enforcement officers.”
A magistrate judge approved the warrant, and police officers conducted a drug raid at Christian’s home just after midnight on September 4, 2015. During the raid, officers seized cocaine, marijuana, over 80 grams of heroin, a cutting agent, and two loaded guns. The Government charged Christian with possession of heroin with intent to distribute, being a felon in possession of a firearm, and possession of a firearm in furtherance of drug trafficking.
Christian moved to suppress the evidence obtained from the September 3 search warrant. The district court denied the motion, determining that the affidavit provided sufficient information to establish probable cause and that in any event the Leon good-faith exception would apply regardless of the probable cause determination. A jury convicted Christian on all counts, and the district court sentenced Christian to 210 months in prison.
Christian now appeals the district court’s denial of his motion to suppress, arguing that the affidavit did not establish probable cause and that the Leon good-faith exception to the exclusionary rule should not apply. He also challenges the district court’s admission of testimony about a jail call that occurred between Thomas and Thomas’s girlfriend, Tanisha Edwards, before Christian was arrested. Edwards testified during trial that she told Thomas that Christian “got the groceries out” of their house, where the “groceries” referred to a gun and drugs. The Government introduced the testimony to help explain why law enforcement latеr found a gun and drugs buried in the backyard behind the home of Christian’s mother.
II.
A.
The search-warrant affidavit at issue here provided an ample basis for probable cause, and the question is really not even close. The affidavit first outlined Christian’s extensive history with drugs—four felony drug convictions from 1996, 2002, 2009, and 2011, at least two of which were for drug trafficking. In 2009 and 2011, search warrants executed at Christian’s home, 618 Grandville, the same place searched here, uncovered evidence of drug trafficking that each time resulted in Christian’s arrest.
The affidavit next detailed the reasons why officers believed that Christian had gone back into business. In December 2014, a “credible and reliable informant” advised Officer Bush, the affiant, that Christian was again dealing drugs. The informant also provided information about other traffickers, including “names, nicknames, phone numbers, residences utilized by the drug traffickers and information regarding specific drug transactions.” Officer Bush independently corroborated “much of the information provided” by this informant. In January 2015, under the direction of Officer Bush, the informant executed a controlled purchase of drugs from Christian. In addition, “[w]ithin the last four months” preceding the search, meaning from May to September of 2015, several other informants stated that “Tyrone Christian is a large scale drug dealer” and that “they [had] purchased large quantities of heroin and crack cocaine from Christian at [his residence] in the last four to five months.”
That brings us to September 3, 2015, the day of the search, when, according to the affidavit, officers established surveillance “at 618 Grandville Avenue.” The officers observed Rueben Thomas “walk away from the area of 618 Grandville Avenue and leave the area in a vehicle.” After stopping him for a traffic violation, officers found “approximately 20 grams of heroin” in the form of “‘chunk[s]’ that appeared to have been removed from a larger portion of heroin.” Thomas denied having been at 618 Grandville but admitted having been at another address on that street. Crucially, the affidavit recounted that Thomas’s denial was “contrary to observations of the law enforcement officers.”
Viewing the “totality of the circumstances,” Florida v. Harris, 568 U.S. 237, 244 (2013), through the “lens of common sense,” as the Supreme Court has instructed, id. at 248, the conclusion is inescapable: there was probable cause to believe that a search of 618 Grandville would uncover evidence of drug trafficking. Most
Indeed, one element of the affidavit was independently sufficient for probable cause: the surveillance of Rueben Thomas. Christian argues that there was no “nexus” between Thomas and 618 Grandville because the affidavit states merely that officers saw Thomas “walk away from the area of 618 Grandville Avenue,” rather than entering or leaving that residence. But that selective, out-of-context reading is contradicted even by other parts of the affidavit, which later states that “Rueben Thomas . . . denied being at [the residence], contrary to observations of the law enforcement officers.” (Emphasis added.) While this is not a direct statement that Thomas was seen entering or leaving 618 Grandville, the law does not require such a direct statement. Indeed, our precedents require us to eschew such a formal requirement. “Affidavits are not required to use magic words[.]” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en banc). Because our job is not to reweigh the assertions in an affidavit but to ask whether the magistrate had a substantial basis for his conclusion, United States v. Perry, 864 F.3d 412, 415 (6th Cir. 2017), the later phrase in the affidavit cannot be read out of existence. Rather, the deferential nature of our review means that we should take that later statement—i.e., that Thomas’s denying that he was at 618 Grandville was “contrary to observations of the law enforcement officers”—to reconcile any doubt about where the officers saw Thomas walk away from.
Under that proper view of the affidavit, and paying the appropriate “great deference” to the magistrate’s probable-cause determination, Gates, 462 U.S. at 236, the surveillance evidence provided a substantial basis for concluding that probable cause existed. Argument to the contrary is unavailing. Any possible contradiction between “from the area of” and “contrary to observations of the officers” is more readily attributable to the “haste of a criminal investigation” under which officers often draft an affidavit supporting a search warrant. See id. at 235. Such haste was certainly present here: Officer Bush applied for and received the warrant on the same
day of thе purportedly infirm surveillance and search. To boot, police officers are mostly non-lawyers who must draft search-warrant affidavits “on the basis of nontechnical, common-sense judgments.” Id. at 235–36. With the benefit of hindsight, perhaps the affiant could have been more precise. But our precedents do not require such an exacting degree of specificity. For example, in our recent published opinion in United States v. Tagg, 886 F.3d 579 (6th Cir. 2018), we held that probable cause existed to search the defendant’s home for child pornography despite the supporting documents’ failure to state that the defendant had actually clicked on or viewed an online file containing child pornography. Id. at 585–90. In doing so, we explained that probable cause is not the same thing as proof. See id. at 589–90. Likewise, the affidavit here need not have definitively stated that Thomas was seen leaving 618 Grandville. Rather, it need only have “allege[d] facts that create a reasonable probability” that he did. See id. at 589. From there, the remaining inferences needed to connect 618 Grandville to Christian’s drug trafficking are quite straightforward, given Christian’s history of dealing drugs and the officers’ finding heroin in Thomas’s car. Under a common-sense reading of the affidavit, then, its description of the 618 Grandville surveillance easily exceeds the “degree of suspicion,” id. at 586, needed to establish probable cause.
The affidavit hardly relies alone on the Thomas surveillance, however. There is also Christian’s lengthy history of dealing drugs from 618 Grandville, the controlled purchase from 618 Grandville, and the numerous tips that Christian was recently dealing large quantities of drugs from 618 Grandville, all of which provide further evidence still that probable cause existed. When it comes to probable cause, “the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.” See Wesby, 138 S. Ct. at 588 (citing United States v. Arvizu, 534 U.S. 266, 277–78 (2002)). Even if each of these additional items would not
suffice to establish probable cause on its own, each factual allegation—whether ultimately deficient or not—is still a relevant data point in the “totality of the circumstances” constellation, rather than an independеnt thing to be lined up and shot down one by one. As in Wesby, where the Supreme Court firmly repudiated the Court of Appeals’ attempt to isolate and explain away each piece of evidence, here too “the totality of the circumstances gave the officers plenty of reasons,” 138 S. Ct. at 589, to believe that there was evidence of drug trafficking in Christian’s home.
Probable cause therefore existed, and it is not a close call. The opposite conclusion can be reached only by engaging in the kind of “hypertechnical[,] . . . line-by-line scrutiny,” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004), of the affidavit explicitly forbidden by the Supreme Court, see Gates, 462 U.S. at 235–36, 245 n.14. In Wesby, the Court explained that “this kind of divide-and-conquer approach is improper,” because “[a] factor viewed in isolation is often more ‘readily susceptible to an innocent explanation’ than one viewed as part of a totality.” 138 S. Ct. at 589 (quoting Arvizu, 534 U.S. at 274). That is the case here too, where alone some parts of the affidavit might be criticized but taken together they point clearly to one conclusion: that Christian was dealing drugs from 618 Grandville.
We are accordingly compelled to hold that there was probable cause in this case, especially given the undemanding character of the probable-cause standard and the deferential nature of our review. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Tagg, 886 F.3d at 585 (quoting Wesby, 138 S. Ct. at 586). Time and again the Supreme Court has emphasized that “[p]robable cause ‘is not a high bar’” to clear. Wesby, 138 S. Ct. at 586 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). Where, as here, a magistrate has issued a search warrant based on probable cause, we “do[] not write on a blank slate.” Tagg, 886 F.3d at 586. Rather, the magistrate’s probable-cause determination “should be paid great deference,” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)), and we overturn that
at 586 (citing Gates, 462 U.S. at 238–39; United States v. King, 227 F.3d 732, 739 (6th Cir. 2000)).
The conclusion that probable cause existed to search Christian’s home is compelled, moreover, by our recent published decision in United States v. Hines, 885 F.3d 919 (6th Cir. 2018), in which we emphasized the importance of the totality-of-the-circumstances approach: “Not all search warrant affidavits include the same ingredients,” we said before recognizing that “[i]t is the mix that courts review to decide whether evidence generated from the search may be used or must be suppressed.” Id. at 921–22. The affidavit at issue in Hines, like the one here, was substantial. Both included, among other things, recent evidence of drug-related activity: there, a confidential informant’s statement that one day earlier he had seen drugs at the subsequently searched home; here, the officers’ finding heroin in Thomas’s car after having observed his leaving 618 Grandville. But the takeaway from Hines most salient here is methodological, not analogical: Hines requires us to look holistically at what the affidavit does show, instead of focusing on what the affidavit does not contain, or the flaws of each individual component of the affidavit. Doing the former establishes probable cause here. Rejecting probable cause on the affidavit in this case would therefore fly in the face of Hines, a well-reasoned precedential decision.
B.
Apart from whether the affidavit contained enough to establish probable cause, Christian’s suppression motion was properly denied because of the good-faith exception of United States v. Leon, 468 U.S. 897 (1984). Under Leon, the exclusionary rule does not bar from admission “evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.” Id. at 905. If somehow the affidavit at issue here could be deemed insufficient to establish probable causе, then this is a case in the very heartland of the Leon exception. Contrary to Christian’s argument, the affidavit was not “bare bones.” We reserve that label for an affidavit that merely “states suspicions, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” United States v. Washington, 380 F.3d 236, 241 n.4 (6th Cir. 2004) (quoting United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998)). To further describe the bare-
bones standard is to show why it does not apply here. We have said that, to be considered bare bones, an affidavit must be “so lacking in indicia of probable cause” as to make an officer’s “belief in its existence [ ] objectively unreasonable.” United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005). In United States v. Williams, 224 F.3d 530 (6th Cir. 2000), we described how woefully deficient an affidavit must be before it meets this standard:
An example of a “bare bones” affidavit is found in Gates, 462 U.S. at 239, where the Court, pointing to one from Nathanson v. United States, 290 U.S. 41 (1933), said, “A sworn statement of an affiant that ‘he has cause to suspect and does believe that’ liquor illegally brought into the United States is located on certain premises will not do.” Another illustration was taken from Aguilar v. Texas, 378 U.S. 108 (1964), that “[a]n officer’s statement that ‘affiаnts have received reliable information from a credible person and believe’ that heroin is stored in a home, is likewise inadequate.” Gates, 462 U.S. at 239. Thus, a “bare bones” affidavit is similar to, if not the same as, a conclusory affidavit. It is “one which states ‘only the affiant’s belief that probable cause existed.’” United States v. Finch, 998 F.2d 349, 353 (6th Cir. 1993) (quoting United States v. Ciammitti, 720 F.2d 927, 932 (6th Cir. 1983)).
Although one can split hairs with the affidavit in this case, it is impossible to deny that it contains factual allegations, not just suspicions or conclusions. Importantly, each factual allegation, regardless of any infirmities, at least purports to link Christian to drug trafficking at 618 Grandville. An affidavit need only present “some connection, regardless of how remote it may have been,” United States v. White, 874 F.3d 490, 497 (6th Cir. 2017) (quoting Laughton, 409 F.3d at 749–50), or, in other words, establish a “minimally sufficient nexus between the illegal activity and the place to be searched,” United States v. Brown, 828 F.3d 375, 385 (6th Cir. 2016) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc)), to avoid the bare-bones designation and thus be one upon which an officer can rely in good faith. The affidavit here necessarily satisfies this low requirement. To hold otherwise would be to equate the five-page, extensively sourced affidavit here with the short, conclusory, and self-serving ones for which the bare-bones designation ought to be reserved.
Our decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006), is almost completely inapposite here. We held there that the affidavit—which recounted only a single,
undated controlled purchase—did not satisfy the good-faith exception. Id. at 486, 488–89. Although the affidavit linking 618 Grandville to drug dealing did include information about a controlled purchase that Christian contends was stale, any similarity between this case and Hython ends there. This case is like Hython only if, engaging in the methodological error forbidden by the Supreme Court in Wesby, one completely ignores most of the affidavit by discounting each item one by one. Indeed, Hython by negative inference supports the existence of good-faith reliance here by showing just how unsubstantiated an affidаvit must be to fail to qualify under Leon’s good-faith exception.
This is a particularly egregious case to misapply the good-faith exception given the utter lack of police wrongdoing. The “exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916. As the Supreme Court explained in Leon, “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 922. This balance supports the principle that, as we said in Carpenter, the good-faith exception requires “a less demanding showing than the ‘substantial basis’ threshold required to prove the existence of probable cause in the first place.” 360 F.3d at 595–96 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002) (citation omitted)). Refusing to adhere to those decisions in a case like Christian’s would unduly exalt the Fourth Amendment interest marginally served by deterring nonculpable conduct over the public interest in combatting crime—and
C.
Finally, it is questionable to conclude that the district court erred by admitting the challenged telephone-call evidence. In any event, we may affirm if we can say with “fair assurance” that any such error did not “substantially sway[]” the judgment. Kotteakos v. United States, 328 U.S. 750, 765 (1946). That is the case here. As explained above, the evidence obtained in accordance with the search warrant was properly admitted. Because suppression was correctly denied, the jury properly heard, for example, evidence that officers found 70 grams of heroin next to two loaded guns in Christian’s basement and cocaine and marijuana in other parts
of the house, that the DNA found on one of the guns matched Christian’s, and that Christian’s cell phone contained text messages about drug trafficking. Considering that evidence, the phone call added relatively little: it connected Thomas and Christian, which provided a basis for the jury to conclude that Christian had sold drugs to Thomas, and it linked Christian to a third gun. But even had that evidence not been admitted, no jury could have acquitted Christian on these charges. The evidence against him was too damning. Admitting the phone-call statements was therefore harmless.
III.
The judgment of the district court is affirmed.
UNITED STATES OF AMERICA v. TYRONE DEXTER CHRISTIAN
No. 17-1799
United States Court of Appeals, Sixth Circuit
Decided and Filed: May 31, 2019
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CONCURRENCE
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THAPAR, Circuit Judge, concurring. I concur in the majority opinion. There was probable cause to search Tyrone Christian’s house, and, at the very least, the officers executed that search in good faith. But because of our precedent, we must ignore critical evidence of which the officers undisputedly knew and isolate the good-faith analysis to the four corners of the affidavit. See United States v. Laughton, 409 F.3d 744, 751–52 (6th Cir. 2005). I write separately to explain why Laughton’s limit on the good-faith exception conflicts with Supreme Court precedent and should be overruled.
I.
Officer Thomas Bush’s affidavit included a number of fаcts linking Christian and his house to drug trafficking: (1) Christian had four drug-crime convictions in the past nineteen years (two of which involved conduct that occurred at his house); (2) a confidential informant had purchased drugs from Christian at his house nine months earlier; (3) within the past four months, several “subjects” told the officers that they had purchased “large quantities” of drugs from Christian at his house; and, finally, (4) on the day of the search, officers stopped Rueben Thomas after they saw him leave the “area of” Christian’s house and discovered 20 grams of heroin in Thomas’s car. R. 42-1, Pg. ID 114–15. Critically, Thomas’s heroin showed current drug dealing at Christian’s house, supplementing the older information in Bush’s affidavit. But the link between Thomas’s heroin and Christian’s house was blurry because the affidavit was vague. The affidavit did not say that the officers saw Thomas interact with Christian or that they saw Thomas inside Christian’s house—only that they saw him “walk away from the area of” Christian’s house. Id. at 115.
Still, the magistrate believed the affidavit was good enough and granted the officers’ request for a search warrant. After obtaining the warrant, the officers
controlled substance with intent to distribute, possessing a firearm in furtherance of drug trafficking, and being a felon in possession of a firearm.
Christian claims the evidence against him should have been suppressed, arguing that the officers lacked probable cause to search his house and that the good-faith exception to the exclusionary rule does not apply. Because of Laughton, the parties’ good-faith arguments are restricted to the language of the affidavit. And because that language is vague on a critical point—the link between Thomas’s heroin and Christian’s house—the parties parse through the affidavit and debate the best interpretation of its language (almost as if they were interpreting a statute).
But uncontroverted evidence shows that on the day of the search, surveilling officers twice observed Thomas interacting with Christian at Christian’s house. First, Thomas met with Christian for “approximately five minutes” in the driveway of his house. R. 152, Pg. ID 1131–32. Then, later that afternoon, Thomas returned and went inside for about two hours. After he left, the officers stopped him and discovered the heroin. These facts link Thomas and his heroin to Christian and his house. But, unfortunately, they were left out of the affidavit. The first encounter did not make it into the affidavit at all, and the second one did only in the vague terms described above.
Laughton confines us to the words of that vague affidavit in evaluating whether the good-faith exception applies. We cannоt consider the officers’ actual observations or determine the reason those observations did not make it into the affidavit.
II.
Laughton is wrong. To see why, we need to start with first principles. The Fourth Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches and seizures.”
‘self-help.’”); Gardner v. Neil, 4 N.C. 104, 104 (1814) (stating that “the action of trespass is the only proper form of action” for a Fourth Amendment violation); Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1176–78 (1991); William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1840 (2016).
That changed in 1914 when the Supreme Court first excluded evidence obtained in violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383 (1914). The facts in Weeks were extreme: officers, lacking any particularized information or a warrant, broke into the defendant’s home, took incriminating documents, then returned and took even more. See id. at 386, 393–94. To deter such flagrant misconduct by law enforcement, the Supreme Court created the exclusionary rule. Id. at 393–94; see also United States v. Leon, 468 U.S. 897, 906, 908, 916–17 (1984). The underlying premise is that police are less likely to engage in misconduct if they
But the Supreme Court has recognized that suppression often comes with its own “substantial” costs—both to the criminal justice system (letting the guilty (and possibly dangerous) go free) and to the truth-seeking process. Leon, 468 U.S. at 907–08. So the Supreme Court has repeatedly reminded us that suppression should always be “our last resort, not our first impulse.” Herring v. United States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)) (internal quotation mark omitted). In turn, several principles constrain the aрplication of the exclusionary rule. First, exclusion is not an individual right but a rule aimed at deterrence. Id. at 141. Second, a Fourth Amendment violation is a necessary—but not a sufficient—ground for exclusion. Id. at 141. Third, and perhaps most importantly, the value of any future police deterrence must outweigh suppression’s “substantial social costs.” Hudson, 547 U.S. at 596.
Assuming there is a Fourth Amendment violation, how exactly should courts balance the costs versus the benefits of suppression? Again, the Supreme Court tells us: look at the misconduct. Exclusion must deter egregious misconduct—misconduct “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144. In contrast, when officers act in an objectively reasonable but mistaken manner, exclusion serves no purpose. Leon, 468 U.S. at
919. That is so even if that mistake violated a suspect’s Fourth Amendment rights. Seе Hudson, 547 U.S. at 596.
In short, the ultimate focus must be on the nature of police misconduct. That conduct must exhibit “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” to trigger the exclusionary rule. Davis v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks omitted); Herring, 555 U.S. at 144 (adding systemic negligence to the list).
III.
Of course, focusing on police misconduct does not excuse courts from looking at the affidavit. Indeed, the affidavit is where courts must start. Leon, 468 U.S. at 915. But the ultimate inquiry is whether, considering “all of the circumstances,” the officers acted reasonably when relying on the blessing of the judge. Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23). And to make this determination, “we must consider the actions of all the police officers involved.” Id. at 140 (citing Leon, 468 U.S. at 923 n.24).
This is where Laughton went astray. Laughton’s refusal to look beyond the affidavit is, in effect, a judgment that factual omissions are always culpable misconduct. To start, Leon precludes such an all-or-nothing approach to the exclusionary rule. 468 U.S. at 922 n.23, 923 n.24 (explaining that good faith depends on “all of the circumstances”). But more importantly, the underlying premise is not true—omitted faсts usually do not stem from misconduct at all but from isolated negligence or the time pressures that officers often face during investigations. Indeed, an officer would have practically no incentive to leave favorable information out of an affidavit. See Hudson, 547 U.S. at 596 (stating “the value of
Because there is no nefarious conduct to deter, the best that excluding evidence may do in this scenario is encourage more careful affidavit drafting. While that is a laudable goal, it is not worth the substantial costs of exclusion. See Herring, 555 U.S. at 141; Hudson, 547 U.S. at 596. Those costs are particularly high in an omitted-facts situation: when an officer in fact reasonably
relied on the magistrate’s warrant for a search, and that search yielded evidence proving that the defendant is in fact guilty. Under that scenario, the exclusionary rule cannot “pay its way.” Davis, 564 U.S. at 238 (quoting Leon, 468 U.S. at 919).
The Supreme Court’s instruction to focus on culpability is enough to show that the good-faith analysis must consider facts that are not included in the affidavit. But the Supreme Court has been even more explicit. In Sheppard, an officer under severe time pressure used the wrong warrant application form for his search (a form for drugs rather than murder). Massachusetts v. Sheppard, 468 U.S. 981, 986 (1984). The magistrate judge explained that edits were necessary but only made some of them; as a result, the warrant still authorized only a search for drugs. Id. at 986–87. Despite the obvious error, the Court held that the good-faith exception applied. In doing so, it rejected the argument that the officers’ reliance on a facially invalid warrant undermined good faith. Given the circumstances, “[t]he officers . . . took every step that could reasonably be expected of them.” Id. at 987–89. Among other things, they thoroughly investigated the suspect in a short amount of time, sought the advice of a district attorney, presented the warrant application to a judge, and trusted that he had fixed it. Id. at 984, 988–89. Those facts were not in the affidavit but still were relevant to the Sheppard court. Thus, Sheppard “forecloses . . . a categorical rule” that the good-faith exception depends entirely on the face of the warrant itself. United States v. Franz, 772 F.3d 134, 146 (3d Cir. 2014); accord United States v. Frazier, 423 F.3d 526, 534–35 (6th Cir. 2005). And Sheppard’s logic extends to affidavits and any other documents in a warrant application.
Indeed, our sister circuits have applied the good-faith exception when affidavits (often prepared under time pressure) omitted a few words that were needed to establish probable cause. See, e.g., United States v. McKenzie-Gude, 671 F.3d 452, 456–57, 460 (4th Cir. 2011); United States v. Martin, 297 F.3d 1308, 1320 (11th Cir. 2002). Even the Tenth Circuit, which purportedly follows a “four corners” rule, still considers (1) additional information presented to the issuing judge, (2) “information relating to the warrant application process,” and (3) “testimony illuminating how a reasonable officer would interpret factual information contained in an affidavit.” See United States v. Knox, 883 F.3d 1262, 1272 & n.9 (10th Cir. 2018).
In addition, we already allow courts to look outside facially valid documents to see if there was a Fourth Amendment violation that compels suppression. For example, if a facially valid warrant was rooted in culpable misconduct, then the good-faith exception does not apply. See Herring, 555 U.S. at 146 (“If the police have been shown to be reckless in maintaining a warrant system, or to have
IV.
What would a world without Laughton look like in practice? No court can envision every situation in which good faith does or does not apply. But a few things are clear. Whenever an affidavit’s four corners are thorough enough to satisfy Leon, the good-faith exception applies (barring some sort of culpable misconduct by the police). Indeed, Leon is a low bar. An affidavit exceeds the Leon bar when it contains “some connection” between “the illegal activity and the place to be searched,” even if that connection is “remote” and supported by only a slight “modicum of evidence.” United States v. White, 874 F.3d 490, 496–97 (6th Cir. 2017) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc) (internal quotation marks omitted)). Too often courts raise the Leon bar, making it practically indistinguishable from the probable cause standard itself.1 Doing so effectively eliminates the
good-faith exception, or at the very least reduces it to a limited, narrow role. But when properly applied, Leon means that in most cases an affidavit will satisfy the good-faith exception. In the instances when an affidavit is vague on a critical point, however, courts must go further and ask whether the officers were objectively culpable in relying on that affidavit. To answer that question, courts must consider all the circumstances that bear on the officers’ culpability, including any time pressure that the officers were under, what facts were known to the officers but omitted from the affidavit, and how defective the affidavit was without that omitted information.
The dissent claims that this culpability-focused approach would entail a subjective “expedition into the minds of police officers.” Dissenting Op. Part II (quoting Leon, 468 U.S. at 922 n.23). Yet the Supreme Court already explained that looking at an “officer’s knowledge and experience . . . does not make the test . . . subjective.” Herring, 555 U.S. at 145–46 (emphasis added). Courts are not “inquiring into the subjective beliefs of law enforcement officers” when they consider
Indeed, this case proves the point. Surveilling officers twice observed Thomas interacting with Christian at Christian’s house. That is an uncontroverted fact, not a subjective belief. And that fact, had it been included in the affidavit, would have at the very least established good faith under Leon. A tight time constraint, not culpable conduct, is the most likely reason that this information was left out. See Majority Op. Part II.A. In contrast, if officers saw Thomas at a different house meeting with someone other than Christian, this would be a different case. In that light, the vague language in the affidavit (“the area of” Christian’s house) would objectively appear to be intentional obfuscation rather than negligent oversight.
R. 42-1, Pg. ID 115. And under those circumstances, the outside facts would support suppression. But with the facts we have, suppressing the evidenсe serves no societal purpose.
In short, courts can only apply the good-faith exception by evaluating officer conduct and can only evaluate officer conduct by looking
No. 17-1799
United States Court of Appeals, Sixth Circuit
Decided and Filed: May 31, 2019
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CONCURRING IN THE JUDGMENT
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HELENE N. WHITE, Circuit Judge, concurring in
Applying the above principles, I acknowledge that whether the good-faith standard is met in this case
The majority, in concluding otherwise, argues that our decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006), “is almost
Similarly, the affidavit in the present case primarily relies on
Moreover, this court has held that the Leon good-faith standard was not satisfied where “the ‘evidence in the affidavit connecting the crime to the residence [wa]s so vague as to be conclusory or meaningless.’” McPhearson, 469 F.3d at 527 (quoting United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005)) (finding that the Leon standard was not satisfied where the affidavit reflected that officers had arrested the defendant at his residence on an assault charge and found him in possession of cocaine, but where there was no evidence
In contrast, this court has held that an affidavit was sufficient to satisfy the Leon good-faith standard where the affidavit provided a material link between the criminal activity alleged and the residence in question at the time of the search. See United States v. White, 874 F.3d 490, 494, 498 (6th Cir. 2017) (finding the Leon good-faith standard satisfied where the affiant stated that officers received a tip that the defendant, who had an extensive criminal history involving drugs, was selling drugs from his residence, and the officers initiated, observed, and recorded a controlled buy from the defendant in the driveway of the residence less than 72 hours before the affidavit was executed); United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009) (concluding that the affidavit met the Leon good-faith standard where it stated that a named informant told officers that he had purchased drugs from the defendant’s residence earlier that day); Frazier, 423 F.3d at 536 (finding the Leon good-faith standard satisfied when the affidavit reflected that two recorded controlled buys were conducted by an informant at the defendant’s previous residence seven months before the search, that drugs were found at the defendant’s previous residence two months before the search, that a named informant reported buying two pounds of marijuana from the defendant weekly, and that phone records showed that the defendant was in constant contact with known drug dealers); Carpenter, 360 F.3d at 593 (finding the Leon standard satisfied where the affidavit supporting a warrant to search the residence alleged that a police officer conducting an aerial search spotted numerous marijuana plants directly connected by a road to the residence).
Unlike the affidavit evidence considered in White, Higgins, Frazier, and Carpenter, Christian’s criminal history and the January 2015 controlled buy do not establish a nexus between the Residence and drug activity at the time of the search. Such a nexus is required for the Leon good-faith exception to apply. See Hython, 443 F.3d at 488–89.
And although closer in time to the execution of the search, the information received from the unidentified subjects indicating that Christian was engaged in large-scale drug trafficking from the Residence was “so vague as to be conclusory or meaningless.” See Frazier, 423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596). Where statements “are heavily discounted due to their minimal trustworthiness and reliability, they add little to the probable cause determination” and, accordingly, “a reasonable officer would recognize that without more corroboration, the . . . affidavit came wеll short of establishing probable cause.” United States v. Helton, 314 F.3d 812, 825 (6th Cir. 2003).
An investigation by law-enforcement officers can corroborate tips of unknown reliability. But the observation of Thomas “walk[ing] away from the area” of the Residence before he was later found with heroin in his vehicle does not provide this additional corroboration. At best, the observation allows for only speculation that Thomas purchased the drugs from the Residence. Such speculation cannot reasonably
I also believe that my conclusion is in line with the policy behind the Leon good-faith exception to the exclusionary rule. The majority argues that “this is a case in the very heartland of the Leon exception,” and that “[t]his is a particularly egregious case to misapply the good-faith exception given the utter lack of police wrongdoing.” Maj. Op. 8, 10. I respectfully disagree. This court in United States v. McClain, 444 F.3d 556 (6th Cir. 2005), held that the Leon exception applied because “[t]here was indeed nothing more that [the officer] ‘could have or should have done under these circumstances to be sure his search would be legal.’” Id. at 566 (quoting United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985)).
In the present case, however, the officers could have and should have done a lot more. There is no evidence in the affidavit that they engaged in ongoing or repeated surveillance, arranged subsequent controlled buys, or otherwise monitored for “hallmarks of drug dealing” at the Residence. See McPhearson, 469 F.3d at 527; Hython, 443 F.3d at 486, 488–89. Suppressing the evidence in this cаse would incentivize police officers to take such actions to corroborate unreliable information and describe such actions in their search-warrant applications. Instead, the majority allows the Leon good-faith exception, which was intended to be applied only in “unique cases,” see McClain, 444 F.3d at 565, to excuse sloppy police work.
III. TELEPHONE-CALL EVIDENCE
I will now briefly discuss Christian’s challenge to the district court’s decision to admit the recorded telephone call between Thomas and Thomas’s girlfriend, Tanisha Edwards. The majority concludes that, if the district erred in admitting this evidence, the error was harmless. Maj. Op. 10–11. But the majority’s determination relies on its conclusion affirming the district court’s decision to admit the evidence obtained in accordance with the search warrant. Because I disagree and conclude that the court erred in admitting the evidence obtained pursuant to the warrant, I do not consider the court’s errоr regarding the phone-call evidence harmless.
IV. CONCULSION
In sum, considering the totality of the circumstances, I believe that the information in the affidavit fails to establish probable cause and that the Leon good-faith exception does not apply. I would therefore hold that the district court erred in denying Christian’s motion to suppress the evidence obtained pursuant to the search warrant. Accordingly, I respectfully dissent.