United States v. Williams

America, STATES of UNITED

Plaintiff-Appellee, WILLIAMS, Defendant-

David

Appellant.

No. 06-2018. Appeals,

United States Court

Sixth Circuit.

Argued: March 2008.

Decided and Filed: Oct. 2008. Hall, AND R. Federal FACTUAL PROCEDURAL Bradley ARGUED: Office, Detroit, Michigan, Ap- for BACKGROUND Defender Teall, Assistant pellant. Graham Leslie Background I. The Factual Detroit, Attorney, Michigan, States United Department’s the Detroit Police Bradley BRIEF: R. Appellee. ON for (“FIT”) and Investigative Firearm Team Hall, Federal De- Epstein, Miles Jonathan Alcohol, Bureau of To- the United States Office, Detroit, Michigan, Ap- for fender bacco, (“ATF”), Firearms were en- Teall, Assistant pellant. Graham Leslie joint investigation, during in a which gaged Detroit, Attorney, Michigan, States multiple and executed they obtained Appellee. warrants for residences Detroit. SILER, MOORE, Before: Hedwig on Officers searched 5950 Street McKEAGUE, Judges. Circuit a of July which led to search July on 2004. Both Springwells Street SILER, J., opinion delivered Cosme, of locations were residences Jose McKEAGUE, J., court, joined. in which during who owned two firearms seized MOORE, 690-96), delivered a (pp. J. searches. Cosme told the officers that dissenting opinion. separate individual identified as “D-Bird” moved just two firearms from the residences be- OPINION searches, .25 namely, fore the a caliber SILER, Judge. Circuit handgun. a handgun and .45 caliber Detroit, officers Michi- told the officers that a few Cosme also at a resi- gan executed search warrant searches, prior to the “D-Bird” weeks dence, they where arrested Defendant pounds trafficker of five of robbed evidence, in- David Williams and seized marijuana using handguns. one of those cluding illegal drugs and a firearm. Based that “D-Bird” lived on reported Cosme evidence, on this Williams was indicted for Street, Michigan Tarnow Avenue of a controlled substance with possession drive, 1-94 service and that “D- possession intent to distribute and of Monte car. Bird” drove silver Carlo firearm in furtherance of a traffick- mother, Reinoso, confirmed Cosme’s Stella ing suppress crime. Williams moved Cosme’s statements to the officers. Af- drugs the seizure of the and firearm. motion, ter the district court denied that 16, 2004, July arrested Kam- On officers plea entered a conditional Jackson, ico a known associate of Cosme guilty to both crimes. “D~ and “D-Bird.” Jackson identified Bird” as Williams and showed the officers appeals

Williams now the denial of his residence. Jackson identified suppress motion to the evidence seized upper apart- Williams’s residence as the argues search. He during the Street, denying district court erred in his motion ment unit at 4900 Tarnow which the search warrant that estab- because description corroborated Cosme’s illegal handguns lished Williams’s use of substantiated address. Jackson also apartment and identified his did not state officers, to the inform- Cosme’s statements any further connection between Williams ing that he with a them also saw Williams apartment, and because the search handgun .25 caliber and a .45 caliber hand- warrant failed to establish cause gun, that drove a silver Monte “unreliable, conflicting, in that it relied on Carlo, a drug and that Williams robbed and uncorroborated information.” gunpoint preceding in the trafficker at reasons, following we AFFIRM. officers that

For weeks. Jackson also told the dence, yielded which recently arrested Williams for short-barreled shot- police had vehicle, gun and that and cocaine base. a stolen possessing in his car at the time had his arrest. Background II. Procedural 2004, 17, Darryl July Officer Stewart On Williams later indicted on charges was at 4900 Tarnow conducted surveillance óf possession of controlled substance Street, he a silver Monte Carlo. where saw distribute, with the intent to in violation of standing man next also observed a to He 841(a)(1), § possession 21 U.S.C. and of a description who fit the of the Monte Carlo shotgun short-barreled furtherance of Cosme, Reinoso, given by as and Williams crime, trafficking violation of 18 2004, 22, July Officer Stew- Jackson. On 924(c)(l)(B)(I). § U.S.C. The district Monte Carlo at 4900 again art saw the court denied motion sup- to Street, after which he searched Tarnow entered a press. Williams conditional using description of police databases guilty charges plea on both and was sen- yielded photo- That Williams. to imprisonment. tenced 130 months Williams, po- confirmed that graph of 26, 2004, for

lice arrested Williams on June STANDARDS OF REVIEW carrying weapon. a concealed reviewing a district court’s When 23, 2004, July sought Officer Stewart On suppress, on a motion to must decision we a search warrant for 4900 and obtained findings factual uphold district court’s applica- In his warrant Tarnow Street. findings clearly are errone unless those (i) tion, that Williams resided in ous, and we review the district court’s apartment level at 4900 Tarnow upper legal conclusion as to the existence of (ii) Street; possessed two fire- Williams cause de novo. States v. probable United arms, handgun and a .45 .25 caliber (6th Cir.2004) Combs, 925, 937 369 F.3d (iii) prior one month handgun; caliber Hill, (citing v. 195 F.3d United States used a application, the warrant (6th Cir.1999)). reviewing the When handgun pounds to rob five of .45 caliber district court’s decision we view the evi trafficker; (iv) marijuana from a light dence in the most favorable to the carrying for a con- Williams was arrested (citing Id. v. government. (v) 26, 2004; weapon cealed on June (6th Cir.1999)). Walker, 774, 776 for recently posses- was arrested issuing to an give great We also deference sion of a stolen vehicle where cause in a judge’s finding probable of found the vehicle. application; that decision search warrant should be reversed when was arbi The officers executed the search war- 23, 2004, they trary. (quoting Id. States v. Mil July rant on when entered ler, Cir.2002)); see through open, outside the residence Laughton, hallway that led into a common also United States back door (6th Cir.2005) (“The duty shared other residents. The officers simply to ensure that up reviewing a common stairwell to Williams’s court is moved residence, magistrate had a substantial basis through where upper-level residence, they concluding probable cause existed.” open door to the saw Gates, cutting (quoting crack cocaine on a table. Illinois ar- 76 L.Ed.2d then entered the (1983))). Williams, and searched the resi- rested (internal omitted)); see place.” quotations DISCUSSION Schultz, 14 F.3d also United correctly found I. The district court (6th Cir.1994) (holding that the search warrant established cause for a warrant there is suspect- a nexus between Williams’s affidavit lacked a nexus between where the handguns possession ed and the sus the location to be searched support his residence sufficient Second, activity). pected “[t]he issuing judge’s finding proba- sought will be found belief the items ble cause. must be at the location to be searched requires The Fourth Amendment proof than facie ‘supported by prima less cause for a search warrant ” Bethal, suspicion.’ than but more mere issue, (citing at 747 Laughton, 409 F.3d Fed.Appx. (quoting 245 at 464 United IV; v. amend. United States U.S. Const. (6th 254, Johnson, F.3d 258 351 (6th Helton, Cir.2003)), 812, F.3d 819 314 Cir.2003) (quoting States v. Ben requires that a search warrant de and Cir.1990))). (6th nett, 931, 905 F.2d 934 place to be particularity scribe with issuing judge nor the re- Neither seized, and the items to be Unit searched engage line-by- in viewing courts should Bethal, 460, Fed.Appx. 464 ed States v. 245 scrutiny application’s warrant line of the decision) (6th Cir.2007) (unpublished (quot 465; v. affidavit. Id. at Const, IV). An ing issuing amend. U.S. (6th Cir.2000) Allen, 970, 211 973 F.3d may find cause to issue a judge probable Gates, 14, n. 462 at 246 103 (quoting U.S. prob is a fair search warrant when “there 2317). Rather, the courts should S.Ct. ability that contraband or evidence of totality ap- take a of the circumstances particular place.” will found in a crime be affidavit, in of the and proach their review Gates, at 747 Laughton, (quoting 409 F.3d may weight the courts afford “considerable 2317). 238, 462 U.S. at 103 S.Ct. order law en- experienced to the conclusion of determination, issuing to make this regarding officers where evi- forcement judge “practical, must undertake a com found likely dence of a crime is evaluation of “all of the cir mon sense” to draw reason- courts entitled [the are] in cumstances set forth the affidavit before inferences about where evidence is able Laughton, (quoting him.” F.3d at 747 409 likely kept, to be based on the nature of 2317). Gates, 238, 462 103 S.Ct. U.S. type (quot- crime of offense.” Id. making practical, this common sense Caicedo, ing United States v. 85 F.3d determination, issuing judge must look (6th Cir.1996) (citations 1192 and internal First, for certain criteria. the affidavit or omitted)). quotation marks request warrant “must state nexus be To his that the support tween the to be searched and the cause, Bethal, warrant lacked sought.” Fed.Appx. evidence allegations, the Williams asserts numerous (quoting at 464 United States Van Shut (6th Cir.1998) ters, applica of which that the warrant first is 163 F.3d Alix, tion did not establish a nexus between the (quoting United States (5th Cir.1996))) (internal the residence at targeted handguns and quotation Tarnow Williams cor omitted); Street. While marks see United States v. (6th Cir.2001) Greene, rectly asserts that the warrant affidavit (“Probable handguns never tied the .25 and .45 caliber cause exists where there is a residence, to the Tarnow Street he over probability, given totality fair circumstances, logical, and indeed or evidence looks the Government’s contraband correct, in that “it reason- particular legally of a crime will be found assertion is residence); Newton, criminals store United States v. suppose that some able homes, Cir.2004), crimes in their of their vacated evidence activity criminal or contra- though even part grounds, in on other Here, the war- (2005) (hold- band is observed there.” 163 L.Ed.2d 35 “continuing application rant demonstrated in ing involving drug cases traffickers activity,” firearm from illegal and related engaged “continuing operations,” judge could infer that issuing which “lack a direct known link between the handguns to the would pertaining evidence activity be- residence[] residence. be found Williams’s minimal”); Caicedo, comes 85 F.3d at 1192-93(holding may infer a nexus between there was magistrate A stated, depending suspect cause based on an affidavit that being investigated, “the of crime upon type experience, many drug the affiant’s traf- seized, the ex things the nature of fickers use their residences to conduct opportunity tent of an to conceal evi activities). drug trafficking their But cf. normal inferences dence elsewhere and the Schultz, 14 at 1097-98(holding F.3d that a likely hiding be drawn as to search warrant should not have issued Savoca, F.2d places.” United States v. 761 seeking where the officer the warrant had (6th Cir.1985); 292, 298 see United States guess more than a that nothing contraband (3d 301, F.3d 305-06 Cir. Hodge, v. 246 in or evidence of crime would be found 2001) (noting that a court “is entitled to box). drug deposit trafficker’s safe about where draw reasonable inferences Although acknowledges our the likely kept, evidence is to be based on precedents, argues issuing that an type nature of the evidence and the of judge may infer a a suspect nexus between offense,” that it reason holding suspect and his residence when the is suspected drug to infer that a dealer able trafficker, suspected drug doing and in of his crime at his keep would evidence McPhearson, so relies on United States v. (citation omitted)); residence United (6th Cir.2006). 469 518 In McPhear- F.3d Jackson, (9th 703, F.2d States v. 756 705 son, sought to arrest police officers Cir.1985) (holding that it was a reasonable simple defendant at his residence on as- keep inference that a bank robber would charges. sault Id. at 520. When the de- currency despite in his residence stolen door, at the the officers appeared fendant passage of more than two months be person, him his arrested and searched robbery the time of the and the tween pocket. in Id. finding crack cocaine search). arrest, sought and After the the officers cases, held In a recent line of we have for the defen- obtained a search warrant issuing judge may drug that an infer that the offi- relying only dant’s on drugs traffickers use their homes to store discovery drugs on the defendant’s cers’ drug further their traffick and otherwise person. Id. The officers found firearms See, Miggins, v. ing. e.g., United States crack cocaine in the defen- and additional (6th Cir.2002); see executing dant’s residence after search Gunter, also States v. 266 Fed. United Id. at 520-21. warrant. Cir.2008) (6th (unpublished Appx. affirming suppres- the district court’s decision) (noting precedents that our es cocaine, rejected the sion of the crack we that there is a nexus between a tablish that the defen- government’s drug activity dealer’s criminal residence with dant’s arrest outside his when there reliable dealer’s residence is a fair activity drugs person criminal on his established connecting evidence join other making holding, this we yield would that his residence probability held, involving in cases activity. circuits which have of criminal Id. further evidence crimes, that an issu variety suspected that in cases that estab- at 524. We noted suspect that a criminal ing judge infer suspected lished a nexus between and fruits” of keeps resi- the “instrumentalities activity suspect’s criminal in his residence. See United affidavits his crime warrants’] “the [search dence (3d Jones, F.2d permitted an additional fact contained Cir.1993) that firearms used (opining the inference that magistrate to draw “likely kept in a sus robbery be found in are wrongdoing would evidence residence”); States namely, pect’s the inde- the defendants’ homes— Anderson, Cir.1988), fact that the de- corroborated pendently denied, cert. known dealers fendants were (1989) (holding, in a case sought their 102 L.Ed.2d 973 time the silencer, involving illegal gun sale of a govern- Id. In McPhearson the homes.” magis for the that tied that was reasonable produce “[i]t ment could not evidence activity trate to believe that the defendant’s to his res- the defendant’s and silencer would be found his resi idence. Therefore, though dence. even the affida Here, however, incorrectly as- weapons contains no facts that the were vit provide the facts do not sumes trailer, reject located in the defendant’s we activity evidence of his criminal additional argument that the warrant was defec this McPhearson, required court this Steeves, tive.”); attempts to stretch our hold- and Williams (8th Cir.1975) (noting in a bank ing by arguing too far unless the robbery case that there is “little reason to dealer, suspect issuing judge is any money that ... believe of the bank’s a warrant that lacks not issue home,” would still be in the but “the same criminal linking suspect’s a activi- evidence revolver”); could not be said of the Basti case, present In the ty to his residence. Henderson, F.2d da v. affidavit set forth sufficient the warrant Cir.1973) (affirming magistrate’s finding a permit issuing judge facts to the to infer suspect’s cause to search a handguns sought link for a used in an armed residence appli- residence. The warrant robbery). informants, cation named two Cosme and Jackson, keep both of whom informed Officer Much like bank robber would possessed proceeds that two hand- and instrumentalities of his rob- Stewart Williams home, recently robbery bery to commit the in his so too could Williams be guns used marijuana expected keep the instrumentalities of from trafficker. Sev- information, activity at Fur- eral sources substantiated this his his residence. ther, given to Officer including Department Detroit Police rec- evidence Stewart police recently only ords that indicated arrested the informants seemed to indicate carrying possi- two locations where would Williams for concealed firearm. Williams pos- bly handguns: that store the his car or his Given evidence Williams recently recently residence. ar- multiple guns, sessed and had As Williams car, handguns, in activity, used them to further his criminal rested without both reasonably to conclude that issuing judge could have was reasonable Williams kept kept handguns sought inferred that at least one at least one of the Williams at at his residence.1 handgun his residence. tone, "expanded dissenting colleague charging having

1. Our sounds an alarmist us with earlier,” correctly in found mid-June. Williams contends court II. The district application includ- that he could not have used the .45 caliber that the warrant robbery in a month before he testimony handgun suffi- and evidence ed house, issuing judge’s it from and asserts support took Cosme’s cient to that, consequently, issuing judge erred finding cause. cause to issue the war- finding probable that to his In addition rant. necessary nexus the warrant lacked incorrectly that criminal ac Williams assumes these suspected between Williams’s each other. also ar statements contradict Williams tivity and his handguns from affidavit testi Williams’s removal that Stewart’s gues Officer mid-July does not probable Cosme’s residence mony was insufficient to establish gun prior access to the speak this ar to Williams’s argument, Like his nexus cause. Indeed, that time. Cosme told Officer also fails. gument used the .45 caliber Stewart Williams cited argues that the affidavit Williams handgun to rob the traffickers a “unreliable, testimony that he conflicting” earlier, indicating month thus the district handguns, but possessed handguns had access to the be- Williams correctly found that Officer Stew- court resi- fore he removed them from Cosme’s to the hand- art’s affidavit tied Williams Moreover, dence. the affidavit shows illegal through use inter- guns and their handguns during Williams’s access to corroborating information locking and it established period time because statements from multiple from sources: that the arrested Williams on June Reinoso, Jackson; Cosme, Officer 26, 2004, carrying weapon. a concealed surveillance; Detroit own Stewart’s facts, light of these there is no contra- if to un- Department records. As Police affidavit. diction Officer Stewart’s argument, failure of his derscore the argues further the war- one incon- Williams points rant did not establish that application affidavit. sistency in Officer Stewart’s upper at the level of the statement that Williams resided contrasts Cosme’s 4900 Tarnow Street. from residence handguns removed the alleges Jackson identi- “just po- to the prior” residence Cosme’s residence, fied 4900 Tarnow Street as his mid-July with Jackson’s asser- lice raids therefore contends that the warrant used the .45 caliber tion that Williams Supreme Court “a month violated United States handgun to rob a trafficker rely damage, good on it. The affidavit is significantly if not and in faith rule” that "will destroy, protections probable of the Fourth Amend- lacking cause as not so indicia "rule,” having Far from established ment.” entire- render official belief in its existence to however, holding closely to we have tied our properly ly court unreasonable. district particular and have facts of this case therefore, concluded, alternative basis as an undertaken, do, merely obliged as we are to ruling, suppression that denial of the for its the cir- practical, common-sense evaluation of good justified pursuant motion was in the search warrant cumstances set forth v. exception recognized in United States faith issuing great to the affidavit with deference 897, 3405, Leon, 82 U.S. 104 S.Ct. 468 judge’s finding probable cause. (1984). v. Car- L.Ed.2d 677 See United States Moreover, jurists even if reasonable 591, Cir.2004) (en (6th penter, 360 F.3d 594 differ on whether the affidavit established banc) exception applicable (finding Leon sought the evidence sufficient nexus between facts, albeit insufficient to es- where affidavit searched, abundantly it is cause, vague “were not so as tablish who executed the clear that the officers conclusory meaningless”). or reasonably warrant were entitled to 690

precedent, any legal authority, which holds that an officer see United States v. “may rely upon (6th Cir.1999) 556, information received Layne, 192 F.3d 566-67 informant, through upon rather than (quoting Kelsey, McPherson v. 125 F.3d observations, long his direct so as the in- (6th 989, Cir.1997)), 995-96 and because reasonably formant’s statement is corrobo- appellant “[a]n waives an issue when he rated other matters within the officer’s present fails to it in his initial before briefs States, knowledge.” Jones v. United 362 Radvansky City this court” Olmsted 257, 269-270, 725, 4 U.S. S.Ct. L.Ed.2d Falls, (6th Cir.2005) 291, 395 F.3d (1960) States, (citing Draper v. United (quoting Marks v. Group, Newcourt Credit 329, 358 U.S. 3 L.Ed.2d 327 (6th Inc., Cir.2003)) (in 342 F.3d (1959)), grounds by overruled on other omitted), quotation ternal marks we de Salvucci, States v. 100 cline argument. to address Williams’s (1980). S.Ct. 65 L.Ed.2d 619 First, This also lacks merit. CONCLUSION Jones, unlike in the warrant here named Here, Officer Stewart’s affidavit did not informants, informants, and named un- “suspicions, use mere conclu- beliefs or informants, like require confidential little sions” to link Williams to either 4900 Tar- See, e.g., corroboration. now Street or handguns. the two See (6th Cir.2002) Miller, Weaver, United States v. (finding first-time informant reliable be- (6th Cir.1996). Rather, provided informant, cause affidavit named the corroborated information from three the informant provided detailed informa- informants; thus, named it established a tion, subject and the informant was nexus that was neither “conclusory or prosecution if his information was fabricat- meaningless.” United Carpenter, ed). Second, Officer Stewart corroborated Cir.2004) (en banc). the information provided through Jackson Finally, today our decision aligns us with sources, multiple including Cosme and Rei- many circuits, of our sister which hold that noso, correctly who identified Williams’s an issuing judge may suspect infer that a block, and Officer Stewart’s own observa- keeps the instrumentalities or fruits of his tions outside Williams’s residence substan- activity criminal at his even tiated Jackson’s statements. activity when is not Finally, before district court trafficking. Accordingly, the district court Williams contended that the search war- correctly denied Williams’s motion to sup- rant did not establish cause be- press, as the search warrant sup- cause it failed to allege that Williams was ported by probable cause. prohibited from possessing firearms. The AFFIRMED. district court found that “pro- Williams authority, and the court knows vided MOORE, KAREN NELSON Circuit none, of for the implied assertion that a Judge, dissenting. search warrant application contain must I respectfully majori- dissent from the probable cause for specific the crime under ty’s conclusion that the underly- affidavit which a defendant eventually will ing not, the search warrant a charged.” however, established suffi- Williams did cient argument appeal; instead, apartment raise this on nexus between only passingly searched reply guns police alluded to it in his brief. To the sought. extent that I Williams failed would therefore hold develop or support defective, with search warrant was and the dis- 4900 Tarnow. Jackson denying apartment David court erred trict (“Williams”) suppress. report motion to confirmed that Williams Cosme’s a Monte Carlo and had robbed drove silver I. BACKGROUND gun point. trafficker at Jackson guilty reported a conditional that he had seen Williams with entered had violated charges handgun. that he on both a .25- and .45-caliber plea 841(a)(1) (Possession Intent § with U.S.C. officers that Finally, Jackson told Substance) and 18 to Distribute Controlled recently possession arrested for had been 924(c)(1)(B)® (Possession aof § U.S.C. a stolen motor vehicle and that there in Furtherance of Shotgun Barreled Short during car arrest. was a in the this Crime). Trafficking Upon sentenc- Drug day, The next Detroit Police Officer appeals now judgment, he ing and (“Stewart”) observed the Darryl Stewart sup- of his motion court’s denial district man at 4900 Tarnow. He saw a apartment these convic- the evidence on which press description standing next fitting Williams’s are based. tions to a silver Monte Carlo outside build- are drawn from the following facts car there on ing. seeing After the same the affida opinion and from district court 22, 2004, description July Stewart used warrant. underlying vit the search police to search the database. of Williams Williams, 2005 WL had ar- He discovered that Williams been 2005). (E.D.Mich. July Aug.31, On carrying 2004 for rested on June Police offi July Detroit 2004 and re- weapon. The search also concealed warrants on two resi executed search cers different addresses vealed two Detroit, at 5950 one located dences Williams, corresponded to neither of which A Springwells. at 5409 Hedwig1 and one he was on Tarnow. When apartment addresses, Jose Cosme resident of both carrying weapon, a concealed arrested for (“Cosme”), a man called officers that told as 7176 Park- gave his address guns, two one .25- “D-Bird” had taken wood, plates and the license on silver hand handgun and one .45-caliber caliber Park- registered were Monte Carlo they before were from these locations gun, wood. that D-Bird reported He also searched. applied for and July Stewart On five guns to rob had used one of these upper to search the received a warrant traffick marijuana from pounds and re- weapons Tarnow for level of 4900 D- the officers that informed er. Cosme in sup- affidavit materials. Stewart’s lated and lived drove a silver Monte Carlo Bird following port of this warrant and the 1-94 Michigan Avenue 1) mother, during had been seized weapons facts: on Tarnow. Cosme’s service drive (“Reinoso”), Hedwig Spring- confirmed and 5409 Reinoso at 5950 Stella searches 2) wells; Cosme, loca- these statements. a resident both tions, and a D-Bird had .25- said that later, July police days A few on had moved handgun that been .45-caliber (“Jackson”). Kamico Jackson arrested shortly addresses before from these real that D-Bird’s told Jackson 3) conducted; Reinoso con- searches were Williams, and identified was David name statements, and both firmed Cosme’s as on Tarnow upper-level apartment an D- police told and Reinoso address of this Cosme residence. The Williams’s lead, designate this opinion will this as their identifies this address While the affidavit 1. Hedwig. Hedwig, court and the St. the district address as 5950 5950 Hedwig. Following majority call it 5950 both II. Bird drove a silver Monte Carlo and lived ANALYSIS Michigan Tarnow between Ave and the on evaluating the denial of a motion When 4) Jackson, drive; 1-94 service when a suppress, we review the district court’s D-Bird, known associate of Cosme error, findings factual for clear and we arrested, police he that D- was informed probable its determination of review cause Williams, Rodriguez-Sua- real name was David and de novo. Bird’s United States (6th Cir.2003). zo, upper-level apart- identified an Jackson (4900 Tarnow) ment on Tarnow as Amendment, Under the Fourth a war 5) residence; also told Williams’s Jackson only probable rant can issue when there is had arrested for police Williams been cause, probability or “a fair that contra of a motor vehicle possession stolen or evidence of a crime will be found band 6) time; particular place.” in a had a car at United States v. gun (6th Miller, Cir.2002) stated that he had seen Williams Jackson (internal omitted), quotation marks cert. 7) a a handgun; with .25- and .45-caliber denied, 539 U.S. 123 S.Ct. police both Cosme and Jackson informed (2003). issuing L.Ed.2d 121 The judge that D-Bird had used .45-caliber probable determines whether there is pounds rob a dealer of five of mari- by cause applying common-sense “totali 8) surveillance, juana; through Stewart ob- ty approach.” of the circumstances Id. We fitting served a man description Williams’s an give issuing judge’s finding probable standing near a silver Monte Carlo which great cause deference and reverse was seen in front 4900 Tarnow on two “ judge when the could have had no ‘sub 9) separate days; Stewart searched the ” finding probable stantial basis’ for cause. police database and found a man named Gates, (quoting Id. at 268-69 Illinois v. David who Williams looked like the man he 213, 236, 462 U.S. 103 S.Ct. 10) by Carlo; standing saw this Monte (1983)). L.Ed.2d 527 carrying had been arrested for cause, probable In order to establish 11) 26, 2004; weapon July concealed on at affidavit must demonstrate “nexus be arrest, the time of gave this tween the to be searched and the address as 7176 Parkwood and the Monte sought.” evidence Van plates license registered Carlo’s were Shutters, Cir. 7163 Parkwood. 1998) (internal omitted), quotation marks denied, cert. they When executed the warrant at 4900 (1999). 1480, 143 L.Ed.2d major The Tarnow, found cocaine base and ity rejects shotgun, they short-barreled but did not underlying affidavit the search warrant handguns find either of the two mentioned apartment for the at 4900 Tarnow failed in the affidavit. However, to establish cause. search, the common-sense review called After the indicted precedent majority both reveals guilty and entered a plea conditional that, underlying because the affidavit charges possession of a controlled sub- any failed to demonstrate nexus between with pos- stance intent to distribute and handguns, 4900 Tarnow and the two shotgun session of short-barreled in fur- search warrant lacked cause. crime, therance of a drug-trafficking 841(a)(1) § violation 21of U.S.C. and 18 majority’s holding undercuts this 924(c)(l)(B)(i), § respectively. U.S.C. precedents court’s the Fourth Amend- kept that Williams two to issue so vit establishes allowing a warrant ment allegedly that the indi- which he used to rob alleges guns, affidavit one of long as the dealer, done some- investigation Hedwig has at and 5409 under vidual loca- lives in a certain criminal and thing allege The affidavit does not Springwells. a nexus based majority finds tion. The at either of these that Williams ever lived informants said the fact that two solely on both, addresses, Cosme, and a resident of robbery in a gun had used a Williams know real name. did not even Williams’s informants identified same two the saw The affidavit also asserts Jackson (although Tarnow home as 4900 not guns with at some location Williams had and one knew this address neither home, to and that be Williams’s knowledge of where only general in his car. Williams once carried lived). majority cites a list The Williams fail to only Not does this information es- circuits in cases from other of decades-old a link between 4900 Tarnow and tablish prin- the expansion of support of its broad the handguns, highlights the but also circumstances, “an issu- some ciple keep fact that was known to his Williams suspect infer that a criminal ing judge may than own home. guns in locations other his and fruits’ of keeps the ‘instrumentalities Thus, majority gov- rests on the while Maj. Op. p. crime in his residence.” his “logical, and indeed supposedly ernment’s may sometimes be a connection 688. Such correct, that it is reason- legally assertion” inferred, only connected but this affidavit keep able to infer that some criminals with a location with a crime and Williams homes, Maj. Op. p. in their 686- evidence permit- additional factors provided analyze suggests the affidavit we must guns a court to infer a nexus ting obviously un that such an inference is and that location. in this The inference reasonable case. guns kept take he that Williams would affi- A review of this A. common-sense bring acquaintance of an the home no evi- reveals that it contains davit commit- them his own home to after place a nexus between dence of rational with them is neither ting crime guns to be to be searched fact, opposite inference logical. nor sought. reasonable; inten- that Williams is more apply agreed- to majority The fails outside his resi- tionally kept guns his to totality the circumstances test upon dence, he leaving people them with even affidavit, standing determine whether not know well. did alone, between the establishes connection that it failing to establish addition searched, Tarnow, and the Williams, not a logical to conclude Instead, majority iso- guns sought. defendant, guns at kept his hypothetical sup- from the affidavit that lates the facts residence, the affidavit fails to establish his then finds a nexus port its conclusion and resi- that 4900 Tarnow was Williams’s defendants hypothetical on what based majority neglects to mention not do with evidence dence. The might might or variety in a of circumstances. informants tied their crimes fact that while two neglects view majority’s selective apartment, the Tarnow major in the affidavit. address two flaws own files linked police department’s addresses. to two different First, clear indica- the affidavit contains these other one of gave that, majority’s hypo- tions whatever about a when he was arrested addresses do with their suspects thetical criminal Stewart saw month before the search. any guns keep did not weapons, Williams apart- outside the Tarnow car residence. The affida- Williams’s possessed twice, crime, beyond just not observe ment but did tion with the fact exiting building. or entering may that the defendant have committed affidavit offers no reason to infer that The in the crime and live that location. Tarnow was Williams’s or Each case has included some additional it that if it was his residence was “plus” factor in allowing the nexus to be keep guns. he would his The affidavit Newton, ferred. United States 389 F.3d does not even contain the officer’s asser (6th Cir.2004) 631, (Moore, J., 639-42 con Williams, in experience, tion that his or in curring part dissenting part), in crimes, someone accused of similar would part grounds, vacated in on other in keep evidence of the crimes his home. (2005). 280, 126 S.Ct. L.Ed.2d 35 presence of the additional addresses Miggins, United States v. impossible reasonably makes to infer (6th Cir.2002), denied, 393-94 cert. keep that would evidence of his U.S. 155 L.Ed.2d 531 alleged any crimes at one of the three (2003), upheld this court a search warrant An guess locations. officer’s that the evi police obtained after observed two men dence would be at one of the three ad cocaine, delivery receive controlled necessary cannot dresses create the nexus. lived, they found out where and included Schultz, See regarding ongoing information the men’s (6th Cir.1994) (holding 1097-98 that a war participation in All drug trafficking. rant not should have issued where in support holding the cases cited of this anything officer “did not have more than a drug trafficking involved and the assertion guess that contraband or evidence of a drug keep dealers often evidence of crime would be found” in the defendant’s drug dealing in their homes. Id. In the boxes). deposit safe Gunter, unpublished case (6th Cir.2008) 266 Fed.Appx. majority’s opinion B. The establishes decision), (unpublished police observed the precedent that renders the nexus el- defendant, dealer, an probable-cause alleged drug stop ement of re- quirement briefly selling drugs Fourth Amend- at his house before formality. ment a mere up a confidential informant. This court agent’s held the warrant based on a state Apart ignoring from import of these experience traffickers often keep affidavit, in glaring majority flaws homes, evidence of their in crimes their expands in precedents this court’s a dis- panel but the warned that fact “[t]he mere way. turbing previous Our caselaw has that someone a drug is dealer is not alone drawn a line between in cases which inves- sufficient to tigation establish cause to complicated, ongoing revealed activity judge such that a search their home.” Id. at could 418. New ton, infer that the defendant kept evidence of the defendant was found home, activity in his and cases very large quantity marijuana, with which information a single about crime or tried to hide his from police, address an permit individual’s status did not alleged engaged and was in drug inference that there would be evidence of Caicedo, dealing. In United States v. activity further criminal in that individual’s (6th Cir.1996), F.3d 1184 the defendant home. was arrested when cocaine was found companion’s backpack, he lied about his

Cases which this court has allowed a address, and the officer nexus to be inferred between a suspect often keep his residence have all included con- traffickers evidence at their crete, specific information tying the loca- homes. Savoca, v. States to ex- 25. separately before written

I have (6th Cir.1985), caselaw de- 292, with the this court held my discomfort 294-95 press above, dangerously it “comes as cause to search probable scribed that there was drug- special a rule creating close to robbery for evidence of a a motel room warrants, un- inappropriate related search robbery had taken thou- when the Wisconsin, 520 U.S. v. der Richards away and the affidavit did sands of miles 392-95, 137 L.Ed.2d 117 S.Ct. robbery was. not how recent state (1997) ..., eliding to the distinction and the fact that a holding illustrates This an indi- cause to believe probable reading of affidavit common-sense cause of a crime guilty vidual in- that weaken an reveal “minus” factors by that individu- owned property to search above, the affi- nexus. As discussed ferred v. al, of Zurcher in contravention Stanford underlying the search of Williams’s davit n. 556-59 & Daily, 436 U.S. “minus” factors home contained these (1978) ... and L.Ed.2d 525 S.Ct. demanded “plus” without factors 752, 762-63, California, 395 U.S. Chimel McPhearson. (1969).” 2034, 23 L.Ed.2d 685 89 S.Ct. (Moore, J., Newton, at 639-40 although that our majority The holds part). dissenting concurring part required allega- prior explicitly caselaw however, goes far majority opinion, The trafficking activity ongoing drug tions of and, in precedent beyond this worrisome inferred, such a nexus could be before so, require- the nexus doing obliterates necessary. Compare are not allegations Amendment. of the Fourth ment McPhearson, 469 Maj. p. 688 with Op. are con- cases discussed above When the majority a expands The F.3d at 524-25. has in which this court with cases trasted consti- already approaching rule that was nexus, it be- to find a sufficient declined and unconstitu- limits to an absurd tutional holding has today’s that comes clear majority’s hold- degree. tional Under requirement the feeble erased even that a alleges an affidavit ing, long as as the item tying factor “plus” there be a by an individual and was committed crime be- to the location to be searched sought in a certain resi- individual lives that the will issue. Unit- proper a warrant fore dence, and a can be inferred nexus McPhearson, 469 F.3d ed States for that resi- warrant can issue search (6th Cir.2006), this court held (listing sup- Maj. Op. p. 688 dence. See on of a man arrested the fact that search allowing judge factors posed “plus” drugs on his charges uncovered assault nexus). dis- completely This rule infer a cause provide did not person requirement and with the nexus penses to search necessary for warrant war- for an arrest merges the standards noted the panel The McPhearson home. war- for a search rant with the standards “plus” factor before requirement of contrary to well- a result is rant. Such inferred, holding nexus can be caselaw. See Supreme Court established inference was found cases where an Zurcher, contained an addi- “the affidavits proper, (“The in a reasonable critical element magistrate to permitted fact that tional proper- is not that the owner search wrong- that evidence of the inference draw is but that there ty suspected of crime is in the defendants’ doing would be found specif- that the to believe reasonable cause corrob- namely, independently homes— and seized are searched for ‘things’ ic were fact the defendants orated entry is property to which located on at the time the known dealers sought.”). at 524- homes.” Id. sought to search their seizure, therefore, must, majority on cases and I relies decades-old leap respectfully sister circuits from allow- dissent.2 from our to be inferred when an ing a nexus of an presents strong evidence

affidavit ongoing involvement in an

individual’s conspiracy eviscerating to the nexus entirely. pre- affidavit

requirement The here of on- allegations

sented includes no kind; activity of it does

going any include an officer’s not even assertion DAUGHERTY, Plaintiff- James reason to would be guns he has believe the Appellant, Instead, it found this location. links to and separate three addresses no link to one crime. It draws PLASTICS, INC, SAJAR any and guns the crime or the Defendant-Appellee. affidavit also these three addresses. The No. 06-4608. shows Williams tended to store his home, if away from his one of guns so even Appeals, United States Court of addresses could be chosen for a these Sixth Circuit. nexus, search, the affidavit offers no no Argued: Sept. 2007. would guns reason believe these at that residence. and Decided Filed: Oct. 2008.

I hold that this warrant would search defective because it to establish

was failed

a nexus between the items to be seized and I

the location be searched. would reverse

therefore Williams’s conviction. majority’s holding significantly

The will if not

damage, destroy, the protections

the Fourth Amendment pertains as footnote, However, portion (1984). majority quotes

2. In a Supreme as the Court Leon, charges striking exception suppres- of this sentence and with me noted in to the footnote, applies only alarmist tone.” In "an the same sion rule when "the officer’s reli- majority magistrate’s probable-cause asserts that it has not established a ance on the de- simply performed sufficiency new rule but has a com- termination and on the technical par- evaluation of the mon-sense facts this objectively of the warrant he issues rea- [is] majority case. opinion ticular The does re- Id. sonable.” It is settled law that before facts, issue, uphold view some but in order to warrant will an affidavit must establish warrant, majority expand must place nexus between to be and searched allowing Shutters, the once-limited rule finder to fact sought. thing to be Van infer a nexus between the to be F.3d at The 336-37. affidavit we consider thing sought. searched and the today guns establishes nexus between the Tarnow, majority briefly also in the same given glaring asserts this omission, footnote that even did if affidavit not the officers had "no reasonable cause, suppression grounds believing establish is an for that the warrant Leon, 922-23, inappropriate remedy properly because the offi- issued.” 468 U.S. at reasonably good cers faith relied on 104 S.Ct. 3405. I therefore dissent from Leon, warrant. See majority's ruling.” States “alternative basis its 897, 922-23, Maj. U.S. 82 L.Ed.2d Op. p. 688-89 n. 1.

Case Details

Case Name: United States v. Williams

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 16, 2008

Citation: 544 F.3d 683

Docket Number: 06-2018

Court Abbreviation: 6th Cir.