Opinion
SC: 162743 COA: 349774
07-21-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus Lavell LEWIS, Defendant-Appellant.
Order
On January 11, 2023, the Court heard oral argument on the application for leave to appeal the January 21, 2021 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J. (dissenting).
The Fourth Amendment of the United States Constitution secures the right to be free from unreasonable searches and seizures. For the search of a home to be constitutionally reasonable, there must be a sufficient nexus between the criminal activity and the home. In this case there was an insufficient nexus between defendant's illegal drug activity and his residence. Therefore, the search of his home was without probable cause and thus unconstitutional. In addition, if a search warrant affidavit does not contain a minimally sufficient nexus between the illegal activity and the residence, the search warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, rendering the good-faith exception to the exclusionary rule inapplicable. I would remand this case to the Court of Appeals to consider whether the "minimally sufficient nexus" test was met here. Because the Court denies leave to appeal instead, I respectfully dissent.
I. FACTS
On July 28, 2018, two detectives with the Grand Rapids Police Department were conducting surveillance outside a party store in an area known for drug trafficking. The detectives watched one man, Shawn Osborn, get into a vehicle driven by defendant, Marcus Lewis, and then observed what the detectives believed to be a hand-to-hand drug transaction. Osborn then got back into the car he had arrived in with his companion, Brandon Jones, and the two drove away. Defendant drove away separately.
Osborn and Jones were followed to a nearby grocery store parking lot by the police, who executed a traffic stop. Osborn was in possession of crack cocaine and said that he had just purchased it for $20 from a man he knew as "Mel."
Meanwhile, the police also executed a separate traffic stop of defendant's vehicle. Defendant's vehicle and person were searched. No drugs or drug paraphernalia were discovered in the vehicle. Defendant had $81 dollars in cash in his possession. One officer called the number that Osborn had provided for "Mel" and defendant's phone rang. Officers used the Law Enforcement Information Network (LEIN) and discovered that one of defendant's known aliases was "Mel." Using LEIN, law enforcement also discovered that defendant had a criminal record, which included a conviction for possession with intent to deliver controlled substances from June 2009, a conviction for delivery or manufacture of cocaine from March 2005, and a conviction for delivery or manufacture of cocaine from July 2002. Defendant was on federal probation for the June 2009 conviction. Following the traffic stop, defendant was arrested.
The next day, Detective Ross VandenBerg swore out an affidavit as part of a request for a search warrant for defendant's home. The affidavit detailed the detective's experience in law enforcement and narcotics investigations. It provided the circumstances leading to defendant's arrest, defendant's criminal record, and the fact that he was on federal probation. Next, it provided defendant's address, noting that when defendant left the party store parking lot, he "drove north" in the direction of that address. The detective then explained the difference between "user" traffickers and "profit" traffickers. According to the detective, "profit" traffickers are capable of selling large amounts of narcotics and maintain a base of operations that generates paper trails and contains equipment to process controlled substances, such as scales and cutting and packaging materials. The detective explained that "through his training and experience," he was aware of the various ways that drug traffickers maintain records and might keep the records in "secret locations within the home[ ]" or in the control of "seemingly innocent persons located at the residence at the search location." This was also consistent "with other information about traffickers using safe houses to traffic and store their controlled substances." The detective indicated that, in his training and experience, drug dealers do not carry all their product or proceeds on their person so they "may leave [it] in a place that they believe is safe from law enforcement."
Detective VandenBerg averred that, in his training and experience, a "user" trafficker "is an individual who deals in controlled substances to support his need to obtain the controlled substance" and "can be differentiated from the individual who traffics a controlled substance for ‘profit.’ " A "user," he explained, "normally deals in smaller quantities," "traffics enough controlled substances to supply his or her personal needs," and does "not have an organized system for his/her trafficking."
On the basis of the affidavit, a magistrate issued a search warrant for defendant's apartment. In defendant's apartment, the police found and seized cocaine, heroin, plastic sandwich bags, cutting agents, and a digital scale.
Thereafter the prosecution charged defendant with delivery of a controlled substance less than 50 grams in relation to the drug transaction with Osborn. See MCL 333.7401(2)(a)(iv ). And, in a separate file, the prosecution charged defendant with two counts of possession with intent to deliver a controlled substance less than 50 grams in regard to the narcotics found in defendant's apartment. See MCL 333.7401(2)(a)(iv ). The cases were eventually consolidated. Before trial, defendant filed a motion to suppress the evidence found during the search of his home, arguing that the police "lacked probable cause to believe that defendant was a drug trafficker who had drugs and equipment at his residence." The trial court denied the motion, and the evidence was admitted at trial. Defendant was convicted as charged.
Defendant appealed, arguing that his Fourth Amendment right to be free from unreasonable searches was violated because the search warrant failed to establish a nexus between the alleged drug trafficking activity and his home. The Court of Appeals concluded that, whether there was probable cause or not, the officers who executed the search warrant acted in good-faith reliance on the search warrant and, therefore, application of the exclusionary rule was inappropriate. People v Lewis , unpublished per curiam opinion of the Court of Appeals, issued January 21, 2021, 2021 WL 220763 (Docket No. 349774). This Court ordered oral argument on the application, directing the parties to address:
Defendant also raised other arguments that were not the subject of this Court's order and that I do not address.
(1) whether the search warrant affidavit established a sufficient nexus between the alleged drug trafficking and defendant's home, see Illinois v Gates , 462 U.S. 213, 238 [103 S.Ct. 2317, 76 L.Ed.2d 527] (1983) ; compare United States v Brown , 828 F.3d 375 ([6th Cir.] 2016), with United States v White , 874 F.3d 490 ([6th Cir.] 2017), and United States v Reed , 993 F.3d 441 ([6th Cir.] 2021) ; and (2) if not, whether the officers relied on the search warrant in good faith. People v Goldston , 470 Mich. 523 (2004). [ People v Lewis , 509 Mich. 881, 881 (2022).]
II. STANDARD OF REVIEW
This Court reviews the trial court's application of Fourth Amendment principles de novo. People v Hammerlund , 504 Mich. 442, 451, 939 N.W.2d 129 (2019). A reviewing court should generally pay great deference to a magistrate's determination of probable cause. People v Russo , 439 Mich. 584, 604, 487 N.W.2d 698 (1992).
III. THE "NEXUS" REQUIREMENT
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [ U.S. Const., Am. IV.][ ]
Although defendant cites the similar provision in our state Constitution, Const. 1963, art. 1, § 11, he does not argue that the provision should be construed more broadly in this context. See People v Nash , 418 Mich. 196, 215, 341 N.W.2d 439 (1983) (holding that Article 1, § 11 can be construed more expansively than the Fourth Amendment "where there is compelling reason" to do so).
"[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v New York , 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quotation marks and citation omitted); see also Florida v Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ("[W]hen it comes to the Fourth Amendment, the home is first among equals."). The warrant procedure is intended to "minimize[ ] the danger of needless intrusions" into private areas, and especially the home. Payton , 445 U.S. at 586, 100 S.Ct. 1371.
"A magistrate shall only issue a search warrant when he or she finds that ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ " People v Franklin , 500 Mich. 92, 101, 894 N.W.2d 561 (2017), quoting Gates , 462 U.S. at 238, 103 S.Ct. 2317. The task is for the issuing magistrate to "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates , 462 U.S. at 238, 103 S.Ct. 2317. In the federal circuit courts, the requirement that there be a "fair probability" that contraband will be found in a "particular place" is often referred to as the "nexus" requirement. United States v Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) ("To justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place. There must, in other words, be a nexus between the place to be searched and the evidence sought.") (quotation marks and citations omitted). As the United States Court of Appeals for the Sixth Circuit has explained, to establish an adequate nexus, "[t]he connection between the residence and the evidence of criminal activity must be specific and concrete, not vague or generalized." Brown , 828 F.3d at 382 (quotation marks and citation omitted). If the affidavit fails to demonstrate a sufficient nexus, then a judge may not issue a search warrant. Id. Like all probable-cause determinations, "whether an affidavit establishes a proper nexus is a fact-intensive question resolved by examining the totality of circumstances presented." Id ., citing Gates , 462 U.S. at 238, 103 S.Ct. 2317. The nexus requirement is important because "[t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought." Zurcher v Stanford Daily , 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).
"The decisions of intermediate federal courts are not binding on this Court, although they may be considered for their persuasive value." People v Lucynski , 509 Mich. 618, 638 n 10, 983 N.W.2d 827 (2022).
See also United States v Corleto , 56 F.4th 169, 175 (1st Cir. 2022) ; United States v Lindsey , 3 F.4th 32, 39 (1st Cir. 2021) ; United States v Mora , 989 F.3d 794, 800 (10th Cir. 2021) ; United States v Johnson , 848 F.3d 872, 878 (8th Cir. 2017) ; United States v Freeman , 685 F.2d 942, 949 (5th Cir. 1982).
The federal circuit courts of appeals and, particularly, the United States Court of Appeals for the Sixth Circuit, have extensively discussed the "nexus requirement" as it pertains to searching a home for evidence of drug trafficking. To illustrate the parameters of the requirement in this context, we can look to two Sixth Circuit cases addressing the nexus requirement—one where a lack of nexus rendered a search warrant lacking in probable cause, Brown , 828 F.3d at 375 ; and one where a sufficient nexus was established, United States v Sheckles , 996 F.3d 330 (6th Cir. 2021).
First, in Brown , 828 F.3d at 378, the federal Drug Enforcement Administration (DEA) was surveilling a man named Marzell Middleton for suspected drug trafficking. A confidential informant (CI) set up a drug buy with Middleton. Id. Middleton left his house in a GMC Yukon with the defendant, Ricky Brown, as his passenger. Id. Simultaneously, another man, Steven Woods, left the house in a Chevrolet Silverado. Id. The two vehicles traveled together, and law enforcement executed a simultaneous traffic stop. Id. Inside the bed of the Silverado, the police discovered heroin. Id. No drugs or paraphernalia were recovered from the Yukon but the police recovered Middleton's cell phones, which had been used to communicate with the CI. Id. Brown also had over $4,000 on his person. Id. All three men were arrested for attempted delivery of heroin. Id. The DEA later searched Middleton's home. Id. Parked outside the home was Brown's vehicle. Id. A drug dog alerted to the presence of narcotics near the vehicle, but none were recovered. Id.
Nine days later, the police searched a phone believed to belong to Brown and found a text that indicated pricing for one ounce of cocaine. Id. The police searched Brown's criminal record, which revealed that he had been charged but ultimately acquitted of delivery or manufacture of drugs about 15 years earlier and convicted of conspiracy to distribute marijuana about 10 years earlier. Id. at 380. Finally, three weeks after the initial arrest, the DEA obtained a search warrant for Brown's home on the basis of the above information and the DEA agent's averments that, "based on his training and experience ..., drug traffickers tend to keep in their residences and vehicles the types of items for which the search warrant was requested," i.e., evidence of a conspiracy to distribute heroin. Id. at 378, 380. A search of Brown's home uncovered firearms and ammunition, marijuana, digital scales, more than $5,000 in cash, and an alleged drug ledger. Id. at 380.
After Brown was charged with various drug-related crimes, he moved to suppress the evidence seized during the search of his home. Id. The district court concluded that the affidavit was sufficient to establish probable cause. Id. On appeal, the Sixth Circuit reversed because there was no nexus between Brown's residence and the evidence sought. Id. at 384.
First, the panel noted that the search warrant affidavit contained no evidence that Brown had distributed narcotics from his home, that he used the home to store narcotics, or that any suspicious activity had taken place there. Id. at 382. Next, the panel considered whether a magistrate could "infer that evidence of drug trafficking would be found at Brown's residence because he was a known drug dealer." Id. at 383. While acknowledging that "[i]n the case of drug dealers, evidence is likely to be found where the dealers live," the panel wrote that "a suspect's status as a drug dealer, standing alone," does not "give[ ] rise to a fair probability that drugs will be found in his home." Id. at 383 (quotation marks and citations omitted). In addition to the allegation that a suspect is a drug dealer, there must be "some reliable evidence connecting the known drug dealer's ongoing criminal activity to the residence[.]" Id. This might include, for example, an informant who has observed drug deals at or around the residence. Id. In sum, "if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be found in the defendant's home—even if the defendant is a known drug dealer." Id. at 384. Because the search warrant affidavit lacked that "necessary nexus," the search warrant was not based on probable cause. Id.
In addition, the Sixth Circuit questioned whether the warrant contained sufficient allegations that Brown even was a drug dealer. Brown , 828 F.3d at 384. While some facts suggested that Brown participated in a heroin conspiracy, they were "too inconclusive to assume, for the purposes of determining probable cause to search Brown's residence, that he was a known drug dealer." Id. In a footnote, the Sixth Circuit noted that his criminal history from more than a decade earlier "hardly proves that Brown was dealing drugs at the time of his arrest." Id. at 384 n 3.
Another relevant case, in which the Sixth Circuit reached the opposite conclusion, is Sheckles , 996 F.3d 330. The defendant, Dwayne Sheckles, had come to the attention of DEA agents when a pen register (a device that records all numbers called from a particular phone line) linked his phone to that of a known drug dealer and when a rental car leased to Sheckles was observed at a drug house. Id. at 335-336. Officers began pinging the phone number from the pen register and discovered that it was at the Terrace Creek Apartments, where Sheckles lived. Id. at 336. A few days later, officers pinged the phone again and this time it pinged at the Crescent Centre apartment complex. Id. The next day, an officer was informed of an anonymous complaint about drug dealing from a Crescent Centre apartment, which had been illegally subleased by John Murphy to two other men. Id. An officer also smelled marijuana outside the apartment. Id. As a result, officers obtained a search warrant for both the Terrace Creek apartment and the Crescent Centre apartment. Id. From the former, officers seized heroin, crystal methamphetamine, and firearms. From the latter, officers seized a firearm magazine, documents containing the name "John Murphy" as the lessee of the Crescent Centre apartment, and paperwork for a storage unit containing a "substantial amount of money." Id. at 336-337. As a result, Sheckles was indicted on several drug-related charges. Id. at 337. A district court later denied a motion to suppress the evidence seized during the search. Id.
On appeal, the Sixth Circuit concluded that the officers had probable cause to search the Crescent Centre apartment based on the anonymous tip of drug dealing and independent police investigation at the apartment. Id. at 341. However, whether there was probable cause to search the Terrace Creek apartment was "a much closer call." Id. The Sixth Circuit had to reconcile two seemingly conflicting schools of thought within its caselaw: one—as reflected in Brown , as discussed earlier—that "a defendant's status as a drug dealer, standing alone," does not amount to "a fair probability that drugs will be found in his home"; the other, that "it is well established that if there is probable cause to suspect an individual of being an ongoing drug trafficker, there is a sufficient nexus between the evidence sought and that individual's home." Id. (quotation marks and citations omitted). The Sixth Circuit concluded that these statements did not in fact conflict and had been resolved in "fact-specific ways." Id. at 342. It explained:
When we have used a drug dealer's drug activities alone to find probable cause to search the dealer's home, the dealer was engaged in "continual and ongoing operations" typically involving large amounts of drugs. United States v. McCoy , 905 F.3d 409, 418 (6th Cir. 2018) ; see Reed , 993 F.3d at 453-54 (citing cases). In one case, for example, officers stopped a "large scale [h]eroin dealer" in a car filled with some 11 kilograms of cocaine. United States v. Davis , 751 F. App'x 889, 891 (6th Cir. 2018). In another, officers learned, among other things, that a drug dealer had picked up a package containing a kilogram of cocaine. United States v Miggins , 302 F.3d 384, 393-94 (6th Cir. 2002). When, by contrast, we have found that drug distribution alone did not suffice, the police had evidence only of "a single instance of drug possession or distribution[.]" McCoy , 905 F.3d at 418 n.5 ; see Brown , 828 F.3d at 383-84. Or they lacked independently corroborated evidence that the defendant was even a drug dealer (as opposed to a drug user). See United States v McPhearson , 469 F.3d 518, 524-25 (6th Cir. 2006). [ Sheckles , 996 F.3d at 342.]
Although there is no hard and fast rule about the "amount of drug activity required to invoke [the] nexus principle," the Sixth Circuit concluded that there was a sufficient nexus in the search warrant affidavit in that case. Id. (quotation marks and citation omitted). First, there was evidence that Sheckles was connected to a "large, ongoing drug trafficking operation." Id. There was also evidence of drug trafficking out of the Crescent Centre apartment, which corroborated the ongoing nature of the enterprise. Id. Second, there was a "specific connection" between Sheckles's residence at the Terrace Creek Apartments and one of the sought-after items—the pinged phone that had been used to coordinate drug deals. Id. Accordingly, "the totality of the circumstances ... permitted the state judge to find probable cause to search this apartment." Id.
IV. APPLICATION OF THE "NEXUS" REQUIREMENT
I find the Sixth Circuit's treatment of the "nexus requirement" and its application to cases involving drug trafficking to be persuasive, and I would explicitly adopt it into our Fourth Amendment framework. As evidenced by the cases discussed earlier, the probable-cause determination is fact-intensive and must be made by examining the totality of the circumstances. Gates , 462 U.S. at 238, 103 S.Ct. 2317. Requiring that law enforcement demonstrate a sufficient nexus between the illegal activity and the home when securing a warrant to search that home ensures that there is a fair probability that contraband or evidence will be found in a particular place by requiring evidence beyond the fact that "the owner of the property is suspected of crime ...." Zurcher , 436 U.S. at 556, 98 S.Ct. 1970.
This Court acknowledged the nexus requirement in passing in People v Hughes , 506 Mich. 512, 527 n 6, 958 N.W.2d 98 (2020).
Applying the sufficient-nexus test here, I conclude that the search warrant was issued without probable cause. A suspect's status as a drug dealer, standing alone, does not give rise to a fair probability that drugs will be found in the suspect's home. Brown , 828 F.3d at 383. There must be something more connecting the drug dealer's criminal activity to the residence. Id. Here, there was no such nexus. The observed drug deal took place approximately four miles away from defendant's residence. Officers did not observe any drug activity at or near the residence, nor were there any allegations that defendant sold drugs from it. There was simply nothing connecting defendant's one-time parking lot deal with his home.
That said, the lack of a direct connection between the drug deal and the residence is not necessarily fatal to the validity of the warrant. "Under th[e] continual-and-ongoing-operations theory," courts may find "a nexus between a defendant's residence and illegal drug activity with no facts indicating that the defendant was dealing drugs from his residence." McCoy , 905 F.3d at 418. Under that nexus theory, evidence that the defendant was in possession of a large quantity of narcotics or had ongoing contacts with a large-scale drug trafficking conspiracy may result in the reasonable inference that the defendant's residence is used for drug trafficking. Id. at 417-418. Here, however, there was no evidence that defendant was engaged in continual and ongoing operations involving large amounts of drugs. The facts demonstrate that defendant sold a single crack rock worth $20 and did not have drugs, paraphernalia, or a large quantity of cash on him that would indicate a large-scale operation at the time of his arrest.
The only other relevant information in the search warrant affidavit was defendant's criminal history and the officer's training and experience. Taken in turn, I do not believe that defendant's stale criminal history supports an inference that he was a large-scale drug trafficker. Generally, information is considered "stale" if it is not "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro v United States , 287 U.S. 206, 210, 53 S.Ct. 138, 77 L.Ed. 260 (1932). While the police knew that defendant had several prior drug-related convictions, the most recent conviction was almost 10 years old. While I agree that defendant's criminal record was relevant to the totality-of-circumstances probable-cause inquiry, the nearly 10-year gap should have rendered the prior convictions largely inconsequential, particularly where there was no known evidence of intervening or ongoing criminal actions. See Brown , 828 F.3d at 384 (noting that convictions more than a decade old "hardly prove" that the defendant was a drug dealer). At some point the conclusions that can be drawn from a prior conviction are too attenuated to play any meaningful role in the determination of probable cause. See United States v Scott , 818 F.3d 424, 431 (8th Cir. 2016). Otherwise, one convicted of a crime would forever be deprived of the full protections of the Fourth Amendment.
The other remaining information in the search warrant affidavit was the officer's training and experience. Law enforcement training and experience is certainly a relevant factor to the totality of the circumstances. That said, an officer's generalizations about criminal behavior based on training and experience are insufficient to establish a sufficient nexus. "The connection between the residence and the evidence of criminal activity must be specific and concrete, not vague or generalized. " Brown , 828 F.3d at 382 (emphasis added; quotation marks and citation omitted). That some drug dealers operate in a particular manner does not mean that this alleged drug dealer operates in a particular manner. There must be a connection between the generalizations and the investigation at hand; otherwise the probable-cause inquiry collapses into a mere hunch on the part of the investigating officer. See Terry v Ohio , 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("[I]n determining whether the officer acted reasonably ..., due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. ") (emphasis added); see also Commonwealth v Nicholson , 262 A.3d 1276, 1282 (Pa Super, 2021) ("Merely referring to ‘professional experience’ does not alone justify the issuance of a search warrant. Otherwise, a police officer's ‘professional experience’ could be used to justify a search of any place where drugs could possibly be kept.").
While I do not question the detective's training and experience, his conclusions about large-scale drug traffickers were not connected to this specific defendant. In other words, while a "profit trafficker" might keep drugs, paraphernalia, and sales records in his residence, the detective failed to explain why it was reasonable to believe that this defendant was a "profit trafficker" on the basis of a single $20 drug transaction and a decades-old criminal history. Without that link, the detective's professional experience was not probative of whether defendant was such a large-scale drug trafficker to establish there was probable cause to search defendant's home.
I note that perhaps other work could have been done to corroborate the detective's suspicion based on his training and experience concerning evidence to be found at defendant's home and transform it into probable cause required to support the warrant. But here the home was never surveilled, there were no tips from credible informants that defendant was dealing drugs from his home, and no evidence other than the officer's suspicion that evidence would be found inside defendant's home. Although the prosecution argued that defendant was driving in the direction of his home, he was several miles away from the home that was ultimately searched, and there was no evidence that any drugs came from the home or that drug activity was conducted within the home. This is insufficient to establish the sufficient nexus to the home necessary to establish probable cause.
In sum, considering the totality of the circumstances, there simply were not enough facts to support a fair probability that contraband or evidence of drug trafficking would be found at defendant's residence. Gates , 462 U.S. at 238, 103 S.Ct. 2317. Although this Court's review of a magistrate's determination of probable cause is necessarily deferential, our deference "is not boundless." United States v Leon , 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). A reviewing court must at least ensure that the magistrate possessed a "substantial basis" for the finding of probable cause. Russo , 439 Mich. at 603, 487 N.W.2d 698. A single drug deal away from the home, a stale criminal history, and an officer's generalized views about drug-dealer behavior is simply not enough to establish a sufficient nexus between the criminal activity at issue and defendant's home. Therefore, I would conclude that defendant's Fourth Amendment rights were violated by an unreasonable search of his home.
V. THE GOOD-FAITH EXCEPTION
While recognizing that there was no "direct evidence that defendant was using his apartment as a base to sell drugs, that there were drugs or drug paraphernalia in the home, that defendant ... had in his possession a quantity of drugs beyond that sold to Osborn, or that defendant was selling drugs to multiple purchasers," the Court of Appeals turned first and dispositively to the good-faith exception to the exclusionary rule. Lewis , unpub. op. at 4. "The exclusionary rule ... generally bars the introduction into evidence of materials seized and observations made during an unconstitutional search." People v Hawkins , 468 Mich. 488, 498-499, 668 N.W.2d 602 (2003). Because the exclusionary rule is not constitutionally mandated, however, a Fourth Amendment violation does not always require application of the exclusionary rule. People v Lucynski , 509 Mich. 618, 657, 983 N.W.2d 827 (2022) ; Gates , 462 U.S. at 223, 103 S.Ct. 2317. Pursuant to the good-faith exception to the exclusionary rule, if law enforcement officers act in reasonable and good-faith reliance on a search warrant, the items seized during the unconstitutional search need not be suppressed. Leon , 468 U.S. at 920-921, 104 S.Ct. 3405 ; People v Goldston , 470 Mich. 523, 541, 682 N.W.2d 479 (2004).
While courts may consider whether an officer's conduct manifested objective good faith before analyzing an underlying Fourth Amendment claim, Leon , 468 U.S. at 924-925, 104 S.Ct. 3405, I believe this practice should be used with caution. When the United States Supreme Court adopted the good-faith exception to the exclusionary rule in Leon , it emphasized that the good-faith exception should not "signal [an] unwillingness strictly to enforce the requirements of the Fourth Amendment ...." Id. at 924, 104 S.Ct. 3405. It also predicted "that application of a good-faith exception to searches conducted pursuant to warrants [would not] preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state." Id. Tellingly, the United States Supreme Court wrote:
If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers’ good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers’ good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice. [ Id. at 925, 104 S.Ct. 3405.]
The panel below fell directly into this trap, however, dodging an important Fourth Amendment question and thereby failing to inform the magistrate judge of his error or provide guidance for future law enforcement action. I urge this Court, the Court of Appeals, and our trial courts going forward to closely examine Fourth Amendment questions, particularly when cases present constitutional issues that are novel or of broad import, before turning to the issue of good faith. Failing to do so "freeze[s] the Fourth Amendment" and causes "Fourth Amendment jurisprudence [to] suffer." Id.
VI. APPLICATION OF THE GOOD-FAITH EXCEPTION
In the Sixth Circuit, in order for the good-faith exception to the exclusionary rule to apply, courts require a "minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good-faith belief in the warrant's validity ...." Carpenter , 360 F.3d at 596. This standard is less demanding than the "sufficient nexus" standard used in the probable-cause inquiry, requiring only "some modicum of evidence, however slight[,] ... between the criminal activity at issue and the place to be searched ...." White , 874 F.3d at 497 (quotation marks and citation omitted). That evidence might be facts demonstrating an ongoing trafficking operation, McCoy , 905 F.3d at 417, a drug deal taking place outside the home, White , 874 F.3d at 493-494, or the fact that the defendant had engaged in multiple controlled buys in the recent past, Reed , 993 F.3d at 451. Where there is no minimally sufficient nexus established in the affidavit underlying the warrant, the Sixth Circuit has held that officers "do[ ] not ‘manifest objective good faith in relying on [the] warrant’ " because it is " ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ " Brown , 828 F.3d at 385, quoting Leon , 468 U.S. at 923, 104 S.Ct. 3405. This is also known as a "bare bones" affidavit. White , 874 F.3d at 496. A bare-bones affidavit is a "conclusory affidavit," providing "nothing more than a mere guess that contraband or evidence of a crime would be found ...." Id. (quotation marks and citation omitted).
As the Sixth Circuit has explained, "[t]here must be daylight between the ‘bare-bones’ and ‘substantial basis’ standards if Leon ’s good-faith exception is to strike the desired balance between safeguarding Fourth Amendment rights and facilitating the criminal justice system's truth-seeking function." White , 874 F.3d at 497.
In this case, the Court of Appeals concluded that the police searched defendant's apartment in good-faith reliance on the search warrant. Although acknowledging it was a "close call," the panel cited these facts:
Osborn called defendant to obtain drugs; defendant then drove to the party store and participated in the drug transaction with Osborn; defendant left the store and headed in the direction of his apartment; defendant had an extensive history of trafficking in drugs; the party store transaction suggested that defendant was once again selling drugs in light of his history; defendant had an established residence in the area; and Detective VandenBerg's extensive experience led him to believe that drugs would be found at defendant's home given all of the circumstances. [ Lewis , unpub. op. at 4.]
On the basis of these considerations, the panel concluded that the affidavit was not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at 5.
I acknowledge that the Court of Appeals cited Goldston , in which this Court found that a search warrant affidavit was not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," even though the affidavit failed to connect the residence to the defendant. Goldston , 470 Mich. at 542, 682 N.W.2d 479 (quotation marks and citation omitted). The Goldston opinion, however, is light on analysis as it pertains to the application of the good-faith exception, making it hard to infer much from the decision. More importantly, this case concerns a specific body of caselaw developed around drug trafficking, something not at issue in Goldston .
Although the panel below considered the good-faith exception, it did so without the benefit of a Fourth Amendment analysis, which necessarily informs the good-faith analysis. It also did not consider whether a "minimally sufficient nexus" between defendant's criminal activity and his residence was presented in the search warrant affidavit. While the Court of Appeals may have reached the correct result, because I would adopt the minimally-sufficient-nexus test, I would vacate the decision and remand for the panel to reconsider its application of the good-faith exception to the exclusionary rule.
VII. CONCLUSION
I would adopt two tests used in the United States Court of Appeals for the Sixth Circuit. First, to establish probable cause to search a home, it must be established that there is a "sufficient nexus" between the illegal activity and the home. In the context of a drug trafficking investigation, this means that an affidavit in support of a search warrant request must include a specific connection between the home and the illegal activity or evidence that the suspect is engaged in ongoing large-scale drug trafficking. Second, in order to rely on the good-faith exception to the warrant requirement, the underlying affidavit must establish a "minimally sufficient nexus" between a person's residence and the illegal activity. I conclude that there was not a "sufficient nexus" between defendant's illegal activity and his home and, therefore, the search was unconstitutional. Whether a "minimally sufficient nexus" was demonstrated is a closer call, and I would remand to the Court of Appeals to consider this question in the first instance. Because the Court denies leave to appeal, I respectfully dissent.
Bolden, J., joins the statement of Cavanagh, J.