Opinion
CASE NO. 1:20-CR-44
06-22-2020
UNITED STATES of America, Plaintiff, v. Michael Akeem WHITE, Jr., Defendant.
Austin Jacob Hakes, U.S. Attorney, Grand Rapids, MI, for Plaintiff.
Austin Jacob Hakes, U.S. Attorney, Grand Rapids, MI, for Plaintiff.
OPINION AND ORDER
ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Defendant White seeks suppression of all evidence seized during the execution of a search warrant at his residence on January 23, 2020. (Motion to Suppress, ECF No. 15). The Court heard oral argument in open court on May 22, 2020; took the motion under advisement; and invited supplemental briefing. (ECF No. 20). Briefing is now complete. (ECF Nos. 25, 26.) This is the decision of the Court.
BACKGROUND
On January 23, 2020, Detective Schmidt sought a warrant to search a single-family residence on Leahy Street, City of Muskegon Heights, Michigan (the "Leahy residence" or the "residence"). The warrant covered not only the residence itself, but also all outbuildings on the premises; all vehicles on or parked directly in front of the premises or owned by or registered to the occupants of the residence or Michael Akeem White; and the person of Michael Akeem White. (ECF No. 15-1, PageID.37.) The warrant affidavit also requested permission to enter the residence without first knocking and announcing police presence. The affidavit reflects that Detective Schmidt has seventeen years of law enforcement experience and is an employee of the Muskegon County Sheriff's Department assigned to the West Michigan Enforcement Team ("WEMET"). (Id. ) Det. Schmidt "has investigated illegal trafficking including cocaine for several years" and based on his experience "knows cocaine to be a whitish colored powdery substance." (Id. )
Det. Schmidt avers that "[o]n or about December 11, 2019, Affiant was acting in an undercover capacity and was traveling in a vehicle with a subject identified as Jared Conkle." (Id. ) In his undercover role, Det. Schmidt "requested to purchase a quantity of cocaine from Conkle and Conkle directed Affiant to park in the rear of ___ Leahy Street." (Id. ) Mr. Conkle "stated to Affiant that the [Leahy residence] belonged to Michael White and identified White as an acquaintance of his."(Id. ) Det. Schmidt "observed Conkle exit the vehicle, enter the residence at ___ Leahy Street, and then return to Affiant." (Id. ) Mr. Conkle "then turned over to Affiant approximately three grams of a white powdery substance" that Det. Schmidt recognized as consistent with cocaine based on his training and experience. (Id. ) Det. Schmidt "later tested that substance using a TruNarc field test unit and observed a positive result for cocaine." (Id. ) The affidavit recounts a second undercover transaction taking place approximately 40 days later. Det. Schmidt avers that "[w]ithin the last 48 hours, Affiant had contact with a subject identified as Jared Conkle. Affiant requested that Conkle sell Affiant a quantity of cocaine, and Conkle directed Affiant to follow Conkle to Hume Avenue and the alley that leads north to ___ Leahy Street." (Id. ) Det. Schmidt provided Mr. Conkle with "pre-recorded WEMET buy money, and Conkle then left Affiant traveling northbound in the alley toward ___ Leahy Street." (Id. ) Mr. Conkle "returned to Affiant a short time later, at which time Conkle turned over to Affiant a quantity of white powdery substance that Affiant knows to be consistent with cocaine based on training and experience." (Id. ) As to the intervening time during which Mr. Conkle was out of Det. Schmidt's view, Det. Schmidt states he has learned that another WEMET officer, Det. Liskey, "observed Conkle leave Affiant and travel northbound in the alley to ___ Leahy Street, at which time Det. Liskey observed Conkle exit his vehicle and enter the rear of ___ Leahy Street. A short time later, Det. Liskey then observed Conkle exit the house and re-enter his vehicle. Det. Liskey observed Conkle traveling southbound in the alley in the direction of Affiant." (Id. )
Det. Schmidt attests that he "is aware, based on training and experience, that those involved in the sale of controlled substances will often store those controlled substances at residences of other individuals...." (Id. ) Det. Schmidt observes that "those individuals who acquire controlled substances for sale from the residence of other individuals that they are acquainted with are often acting as a ‘middleman’ to facilitate the sale of controlled substances for those who own or occupy said residence." (Id. , PageID.38.) He states that based on his training and experience, "Affiant knows that those involved in the sale of controlled substances will often obtain money from a buyer, travel to those residences to obtain the controlled substances for sale, and then return to the buyer to complete the delivery." (Id. )
Det. Schmidt states that he searched a police database and found that "the listed residence for Michael Akeem White ... is ___ Leahy Street. (Id. ) Det. Schmidt's search of the Michigan State database revealed that "a 1998 Nissan with registration [redacted] is registered to Michael Akeem White...." (Id. ) Det. Schmidt notes that he "has personally observed an older style Nissan at the residence near the time of the first undercover purchase of cocaine listed above." (Id. )
Det. Schmidt "has come to believe, based on training and experience, that the integrity of the ongoing investigation and/or the safety of a witness will be compromised if this Affidavit is not suppressed." (ECF No. 15-1, PageID.38.) He states that he has personally observed the residence and that "the exterior of the residence contains security cameras and exterior lighting." (Id. ) Based on his "narcotics investigation training and experience, Affiant has come to believe that knocking and announcing the officers’ presence prior to entering the residence would endanger the officers’ safety" and that "there is a likelihood that the occupants will attempt to dispose of the controlled substances should the officers knock and announce their presence prior to entering the residence." (Id. ) Det. Schmidt says that he "will execute this warrant under the exigent circumstances exception to the knock and announce statute should the magistrate authorize this warrant." (Id. )
A judge authorized the search warrant on January 23, 2020. (Id. ) Police executed the search warrant the same day. (ECF No. 17-2.) Officers made a forced entry and "began yelling, ‘Police, search warrant[.]" (Id. , PageID.59). As Det. Schmidt entered the residence, he "observed a black male, later identified as Michael White standing in the living room ... in a ‘bladed’ position, with a pistol in his hand. Michael had the pistol raised, slanted, and pointed directly at myself as the door opened." (Id. ) Det. Schmidt reports that Mr. White "immediately dropped the pistol, turning to the front door and ran outside[,]" where state troopers arrested him. (Id. ) A search of Mr. White's person yielded $557 in his hand and front pants pocket. (Id. ) A search of the residence yielded "21.2 grams of suspected cocaine, 30.6 grams of crack cocaine, a stolen semi-automatic handgun, an AR style rifle," and over $2,000. (Id. , PageID.58.) Officers executing the search warrant also found, without limitation, Inositol powder; a digital scale with residue; and ammunition. (Id. , PageID.59-60.)
Det. Schmidt notes that of the $557.00, $5.00 was WEMET pre-recorded buy money. (Id. )
In February 2020, a grand jury charged Defendant White with being a felon in possession of firearms (Count 1); possession with intent to distribute a controlled substance (Count 2); possession of a firearm in furtherance of a drug trafficking crime (Count 3); and possession and brandishing of firearm in furtherance of a drug trafficking crime (Count 4). (ECF No. 1.) The Indictment also includes a forfeiture allegation. (Id. , PageID.5.) Defendant now moves to suppress all evidence recovered during the execution of the search warrant.
LEGAL STANDARDS
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by oath or affirmation...." U.S. CONST. amend. IV. Probable cause exists when there is a "fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Williams , 544 F.3d 683, 686 (6th Cir. 2008) (quotation omitted); Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In making the probable cause determination, courts "must review the affidavit in a commonsense, rather than a hypertechnical, manner." United States v. Brown , 732 F.3d 569, 573 (6th Cir. 2013). Probable cause "is not a high bar to clear." United States v. Christian , 925 F.3d 305, 311 (6th Cir. 2019) (en banc) (quotation omitted). To determine probable cause, an issuing judge must make a "practical, commonsense evaluation of all of the circumstances set forth in the affidavit." Williams , 544 F.3d at 686 (quotation omitted). The affidavit must state a nexus between the evidence sought and the area to be searched. Id. (quotation omitted). Additionally, the "belief that the items sought will be found at the location to be searched must be supported by less than prima facie proof but more than mere suspicion." Id. (quotation omitted). In determining the sufficiency of the evidence, the reviewing court is limited to examining the information within the four corners of the affidavit. United States v. Dyer , 580 F.3d 386, 390 (6th Cir. 2009). "The magistrate's probable cause determination should be paid great deference ... and overturn[ed] only if the magistrate arbitrarily exercised his or her authority." Christian , 925 F.3d at 311 (internal quotations omitted).
"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.’ " United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters , 163 F.3d 331, 336-37 (6th Cir. 1998) ). "The connection between the residence and the evidence of criminal activity must be specific and concrete, not ‘vague’ or ‘generalized.’ " United States v. Brown , 828 F.3d 375, 382 (6th Cir. 2016) (quoting Carpenter , 360 F.3d at 595 ). Whether the nexus requirement is satisfied is "a fact-intensive question resolved by examining the totality of circumstances presented." Id. [I]f 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.
The knock and announce rule is a long-standing common law expectation that requires officers executing a search warrant at suspect's home to first knock and identify themselves as law enforcement officers, state their purpose for demanding entry, and allow the occupants time to open the door before entering the residence by force. United States v. Smith , 386 F.3d 753, 758 (6th Cir. 2004) (citing Wilson v. Arkansas , 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) ). Following these steps reduces the risk of destruction of property and the risk of bodily harm to officers and the occupants of the house. See United States v. Bates , 84 F.3d 790, 795 (6th Cir. 1996). "The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one" and is "a command of the Fourth Amendment." Hudson v. Michigan , 547 U.S. 586, 589, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). The Supreme Court has determined that suppression is not the appropriate remedy for a violation of the knock-and-announce requirement. Id. at 599, 126 S.Ct. 2159. But the knock-and-announce rule remains part of the overall reasonableness inquiry under the Fourth Amendment. Wilson , 514 U.S. at 929, 115 S.Ct. 1914.
Failure to knock and announce does not necessarily render a search constitutionally infirm. United States v. Johnson , 267 F.3d 498, 500 (6th Cir. 2001). An exception to the rule exists for exigent circumstances. "[T]o justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin , 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). This standard seeks to balance "the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries." Id. The showing required is "not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged." Id. at 394-95, 117 S.Ct. 1416.
A lack of probable cause does not end the inquiry into whether suppression is appropriate here. United States v. Leon establishes an exception to the exclusionary rule for evidence "seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." 468 U.S. 897, 905, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Under Leon ’s good faith exception, "courts presented with a motion to suppress claiming a lack of probable cause must ask ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's decision.’ " United States v. White , 874 F.3d 490, 496 (6th Cir. 2017) (quoting United States v. Hodson , 543 F.3d 286, 293 (6th Cir. 2008) ). Leon details four circumstances in which an officer's reliance would not be reasonable and the good faith exception would not apply: (1) the affidavit contains information the affiant knew was false or would have known was false but for his or her reckless disregard of the truth; (2) the magistrate judge has totally abandoned his or her judicial role; (3) the affidavit is so completely lacking in factual support that an official belief that probable cause exists would be entirely unreasonable; and (4) the warrant itself is facially deficient, e.g. failing to particularize the place to be searched or the items to be seized. United States v. Weaver , 99 F.3d 1372, 1380 (6th Cir. 1996). Even though a breach of the "knock-and-announce" rule is not a basis for suppression in and of itself, it remains a part of the overall reasonableness inquiry and is therefore a fair consideration in the overall Leon good faith analysis.
ANALYSIS
1. Probable Cause
Det. Schmidt's affidavit fails to show an evidentiary nexus adequate to establish probable cause that contraband or evidence of a crime would be found at any of the locations the warrant specifies. To establish probable cause to search Defendant White's home, person, and vehicles, the search warrant affidavit relies on only two concrete incidents separated by forty days. In both instances, Det. Schmidt, acting undercover, purchased cocaine from someone other than Defendant White. The first purchase, about forty days before the search, involved three grams of cocaine, a small enough amount to be hidden almost anywhere. The second purchase, "within 48 hours" of the affidavit, involved an unknown quantity of cocaine. The only thing potentially connecting Defendant White's home to either sale is that the actual seller wanted Det. Schmidt to stop near the home both times, and that the seller went into the house each time before finalizing the drug sale with Det. Schmidt. The seller told Det. Schmidt the house belonged to his "acquaintance," Michael White. Based on the sequence of events and his training and experience, Det. Schmidt surmised that Mr. Conkle went inside the Leahy residence to obtain the cocaine Mr. Conkle sold to him. This indirect evidence, standing alone, is too attenuated to support a probable cause finding. See Brown , 828 F.3d at 382 ("The connection between the residence and the evidence of criminal activity must be specific and concrete....").
The affidavit does not provide any corroborating information to support Det. Schmidt's surmise. Mr. Conkle described Mr. White simply as an acquaintance. Mr. Conkle did not say that he was going to the residence to obtain drugs. No one searched Mr. Conkle before he entered the residence either time, and so no one knows whether he possessed drugs before entering the residence. No one observed Mr. Conkle's activities inside the residence. No one observed drugs on the premises, and no one observed any physical contact between Mr. Conkle and Mr. White. No one observed a firearm. There was no statement that Mr. White or the residence had been associated with drug activity at any point in the past. No one ever identified Mr. White, his vehicle, or his home as involved in drug activity. As to the January transaction, it is unclear from the affidavit how much time elapsed between Det. Schmidt's request to purchase cocaine from Mr. Conkle and Mr. Conkle's direction to follow him to the alley near the residence. The affidavit specifies neither the quantity of cocaine Mr. Conkle delivered to Det. Schmidt in the January undercover transaction nor how much money Det. Schmidt provided for the purchase. The affidavit fails to establish the evidentiary nexus probable cause requires.
The cases the government cites to support its position do not persuade the Court otherwise. All involve a stronger evidentiary nexus than the case now before the Court. For example, in Ellison , the government's lead case, the search warrant affidavit stated that a reliable CI advised the affiant that within the past three days he had observed two males known to him complete a drug transaction outside specific residence. United States v. Ellison , 632 F.3d 347, 348 (6th Cir. 2011). The CI told the affiant that he observed one of the two men emerge from the residence, give the other man "a large quantity of cocaine in a plastic bag," and go back inside the residence while the other man departed the property. Id. The Sixth Circuit found that "[p]robable cause existed for the search of Ellison's residence and Ellison's person because the warrant affidavit established a nexus between the place to be searched and the evidence sought." Id. at 349. The Sixth Circuit emphasized that the CI "had observed someone come out of Ellison's residence, engage in a drug transaction, and then return into the residence. These incriminating actions are inextricably connected to the residence for which the search warrant was sought." Id. Similarly, in Houser , "the warrant affidavit averred that officers witnessed Houser leave from and then return to his apartment immediately before and after selling crack cocaine [to a confidential informant], thus establishing a sufficient nexus to the search the residence." United States v. Houser , 752 F.Appx. 223, 227 (6th Cir. 2018).
The Houser court also noted that the affidavit included information the CI had provided about the defendant's nickname, phone number, and car, and that the affidavit stated that Mr. Houser had a previous drug trafficking conviction. Id. at 227-228.
This case is different. No drugs were seen at the Leahy residence; there was no confidential informant; there was no controlled buy; and no one saw the defendant himself in possession of drugs or engaging in a drug transaction at the residence or anywhere else. The affidavit lacks the specificity and detail needed to establish probable cause to search the Leahy residence; the outbuildings on the premises; the vehicles specified in the warrant; and the person of Michael Akeem White.
2. Knock-and-Announce
To demonstrate exigent circumstances, Det. Schmidt's affidavit notes that the exterior of the residence has security cameras and exterior lighting, and states that "based on his narcotics investigation and experience," Det. Schmidt believes that that knocking and announcing "would endanger the officers’ safety" and create a "likelihood that the occupants will attempt to dispose of the controlled substances." (ECF No. 15-1, PageID.38.) This is simply too vague and generalized to support a no-knock entry. The affidavit fails to establish the reasonable suspicion required to overcome the knock-and-announce rule.
The Sixth Circuit has fleshed out the kinds of allegations that "establish the reasonableness of an unannounced entry" in a warrant affidavit. See Johnson , 267 F.3d at 500 (quoting Wilson , 514 U.S. at 934, 115 S.Ct. 1914 ). An affidavit must contain specific and recent information that is "more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing ...." Bates , 84 F.3d at 795. For example, in Johnson , a warrant authorizing no-knock entry into the defendant's home was found to demonstrate reasonable suspicion because it alleged that an informant had disclosed that drug deals were done near the bathroom to facilitate disposal of evidence if police appeared. Johnson , 267 F.3d at 499-500. The affidavit "include[d] recent, reliable information" about the specific circumstances that made destruction of evidence likely should the police knock and announce themselves. Id. at 501.
Conversely, an affidavit fails to demonstrate reasonable suspicion if the allegations are generalized or stale. For example, in Smith , the court found defective an affidavit requesting a no-knock warrant on the grounds that a confidential informant had advised the affiant that there were about five people presently inside the residence and that the confidential informant had seen several shotguns and handguns in the residence. Smith , 386 F.3d at 758-760. The court cited the Circuit's earlier determination that exigent circumstances exist when: "1) the persons within the residence already know of the officers’ authority and purpose; 2) the officers have a justified belief that someone within is in imminent peril or bodily harm; or 3) the officers have a justified belief that those within are aware of their presence and engaged in escape or the destruction of evidence." Id. at 759 (quoting Bates , 84 F.3d at 795 ). The court also noted that "there were insufficient facts to support a conclusion that Smith, or anyone else in the dwelling was armed, likely to use a weapon or become violent, or was any threat to officer safety." Id. The court emphasized that evidence of the presence of firearms within a residence, without more, does not create exigent circumstances for officers executing a search warrant. Id.
Here, no one reported that they had seen a gun in the residence, in Defendant's car, or on the Defendant's person. No one reported seeing any drugs or drug sales in the house, much less seeing a sale conducted in a way that would maximize the chance of destruction of evidence. The kind of generic statements included in the warrant affidavit here would support a forced entry in every suspected drug case, converting the "knock-and-announce" rule into a dead letter. Even before the horrific recent stories about the tragic death of Breonna Taylor because of a "no-knock" warrant in Louisville, this was nowhere close to enough to support the no-knock request.
3. Good Faith Exception
Whether Leon applies in this case depends upon whether the affidavit is "so completely lacking in factual support that an official belief that probable cause exists would be entirely unreasonable" – a bare-bones affidavit. Leon , 468 U.S. at 923, 104 S.Ct. 3405. Here, that boils down to whether the affidavit provides at least "a minimally sufficient nexus between the illegal activity and the place to be searched." Carpenter , 360 F.3d at 596. Det. Schmidt's affidavit provides only skeletal information potentially connecting the Leahy residence to drug activity. The affidavit attempts to make the connection only in general terms, relying on the presence of the security system and the officer's training and experience to support the inference that Mr. Conkle must have obtained drugs inside the residence and that evidence of drug trafficking would be found there. The government contends that this is enough to bring the warrant within the Leon exception to the exclusionary rule, relying principally on White and Carpenter to support its argument. In Carpenter , the affidavit established a minimally sufficient nexus between the criminal activity of cultivating marijuana fields observed by aerial search of Hawkins County, Tennessee. The affidavit recited that the house searched was connected by a road to the marijuana field, and that the house was near the marijuana field. Id. at 593-96. Additionally, while the court "leave[s] for another day" whether information outside of the affidavit can be considered in the good faith analysis, it noted that "omitted facts would have bolstered the affidavit" rather than weakened it. Id. at 597. In White , the affidavit recounted the undercover officer's observation of the controlled purchase in the driveway of the house, a tip that drugs were being sold from the house, that the suspect was the owner of the house, and that the suspect had numerous prior drug convictions. White , 874 F.3d at 494. The court found that these factual components "taken together" connected the criminal drug activity to the residence and established a "minimally sufficient nexus" between the house and the activity. Id. By emphasizing the need to take these facts together, the court suggested that a generic belief about drug sales based on an uncorroborated tip would be insufficient to meet the Leon good faith test. Id. at 497-98 ("By corroborating key components of the informant's tip ... [the] affidavit provided a concrete factual link between Defendant, his criminal activity, and the residence.").
Hawkins County is in the northeastern part of Tennessee adjacent to Virginia. According to the 2010 census, the population density is 44 persons per square kilometer.
The omitted facts included, without limitation, that during aerial surveillance an officer "observed beaten paths leading from the back door of the residence to the marijuana patches and saw two men, who turned out to be Lonnie Carpenter and his son, walking from the patches toward the residence." Id. at 593. In United States v. Laughton , 409 F.3d 744, 751-52 (6th Cir. 2005), the Circuit answered the question it reserved in Carpenter and held that the Leon good-faith analysis depends on the four corners of the affidavit itself, and not on any other information the officers had.
The affidavit presented to this court does not contain the kind of concrete information present in White and Carpenter to connect Mr. White and his house to the observed criminal activity. In Carpenter , the affidavit alleged (1) ongoing criminal conduct – the cultivation of marijuana – that was physically observed, (2) occurring near the defendant's residence, and (3) a road physically linking the illegal marijuana field and the nearby house. Carpenter , 360 F.3d at 595-96. The affidavit seeking permission to search Mr. White's house described no such physical or visual connection to illegal drugs observed at the residence, or any other location to be searched. In White , the affidavit disclosed reports from an informant about the owner of the house was conducting drug sales from the house, and corroboration of the tip by an undercover officer who conducted a controlled buy from the owner of the home in the driveway of the house. White , 874 F.3d at 494. The affidavit also reported a criminal history involving drug activity by the homeowner. The court commented that "[d]istilled to its essence, [the affidavit] states that, after receiving information that defendant was selling drugs from [the residence] [the affiant] verified that tip by conducting a controlled buy on the premises of the residence and investigating defendant's criminal history and connection to the residence." Id. at 497. The corroborating facts were critical to the analysis, and there is no such concrete corroboration of the affiant's belief in this case. The only criminal activity documented by affidavit to search Mr. White's house, person and car on a "no knock" basis are two undercover buys from a third party at locations other than Mr. White's house. The third party involved in the criminal conduct identified Mr. White only as "an acquaintance" when asked. Mr. White was not observed at either of these transactions, and the affidavit does not mention any history of drug-related offenses. Thus, the only connection between Mr. White's residence and the observed criminal conduct is the entry and exit of a third party from the home. There is no tip, no concrete corroboration, and no observation of illegal activity by Mr. White or at Mr. White's residence. Unlike the affidavit in White , the affidavit in the case before the Court does not adequately connect the residence to be searched to the observed criminal activity. Instead, the affidavit alleges facts related only to criminal activity conducted by a third party and draws an inference "based on training and experience" that drug activity has occurred inside the house. These alleged facts do not provide the "minimally sufficient nexus" present in both White and Carpenter . They present a paradigm case of the "trust me" affidavit that cannot survive Leon good faith.
Mr. White's case more closely resembles United States v. McPhearson , 469 F.3d 518 (6th Cir. 2006), in which the Sixth Circuit found that Leon did not save the search. In McPhearson , law enforcement searched a defendant's person on his front porch incident to the execution of an arrest warrant for simple assault. McPhearson , 469 F.3d at 520. They found crack cocaine in his pocket and obtained a search warrant based on the discovery of the crack cocaine. Id. at 520-21. Defendant McPhearson challenged the validity of the warrant. The district court pointed out that "[a]ll the affidavit says ... basically, is that Mr. McPhearson was arrested on a simple assault warrant. He was taken into custody on that warrant. He was searched prior to being placed in the police car, and they discovered in his right front pocket a clear plastic bag containing crack cocaine.... And this residence was the residence of McPhearson. And that's all." Id. at 522. The district court found that the affidavit failed to establish probable cause and that Leon good faith did not apply. Id. The Sixth Circuit agreed, explaining that the affidavit "did no more than state that McPhearson, who resided at [the house], was arrested for a non-drug offense with a quantity of crack cocaine on his person. These averments were insufficient to establish probable cause because they do not establish requisite nexus between the place to be searched and the evidence to be sought." Id. at 524. The court observed that a "suspect's mere presence or arrest at a residence is too insignificant a connection with that residence to establish that relationship necessary to a finding of probable cause." Id. at 525 (quotation marks omitted). It requires too great an inference. "In the absence of any facts connecting McPhearson to drug trafficking, the affidavit in this case cannot support the inference that evidence of wrongdoing would be found in McPhearson's home because drugs were found on his person." Id.
The court found that the good faith exception did not apply, because "the minimal nexus required to support an officer's good faith belief was not present in this case." Id. at 526. The only connection between the residence and drug trafficking was that police arrested the defendant at his residence and found crack cocaine in his pocket in a search incident to arrest. "This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause." Id. at 526. In comparable cases in which the good faith exception applied, there was corroborating evidence: the exception "depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity that the police were investigating." Id. (distinguishing United States v. Frazier , 423 F.3d 526 (6th Cir. 2005) ; United States v. Savoca , 761 F.2d 292 (6th Cir. 1985) ; United States v. Van Shutters , 163 F.3d 331 (6th Cir. 1998) ; and United States v. Schultz , 14 F.3d 1093 (6th Cir. 1994) ).
In United States v. Brown , 828 F.3d 375 (6th Cir. 2016), the Sixth Circuit likewise found the connection to the defendant's residence too attenuated to support probable cause or Leon good faith. Officers identified Brown's potential involvement in drug trafficking through an investigation of a different individual, and they arrested Brown as part of a drug conspiracy. Twenty-two days after Brown's arrest, the police requested a search warrant for his home. The search warrant affidavit noted that when he was arrested, Mr. Brown had over $4,000 in US currency in his possession, which is consistent with drug trafficking; a drug dog alerted to the odor of narcotics in Brown's vehicle, which was parked in front of the residence of another co-conspirator; a search (per a warrant) of Brown's cell phone included what appeared to be a text message describing the price of an ounce of cocaine; and Brown had a prior drug conspiracy conviction. Id. at 379-80. The Sixth Circuit observed that the search warrant contained "no evidence that Brown distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there." Id. at 382. The drug dog's alert to narcotics in Brown's car was not enough "to establish a fair probability that evidence of drug trafficking would be found at his residence. A more direct connection was required.... The mere fact that the car was registered to Brown's home was too vague and generalized a nexus to support the search warrant." Id. at 383. Nor was it sufficient to support the application of Leon good faith. Id. at 385-86. The same is true in Mr. White's case.
Brown challenged the warrant on staleness as well as nexus grounds. The court found that because it had concluded that the government failed to establish the required nexus, the court "need not also decide whether the information supporting the warrant was stale." Id. at 385.
The Sixth Circuit's decision in Buffer further supports Mr. White's position. United States v. Buffer , 529 F. App'x 482 (6th Cir. 2013). Acting on an anonymous tip that drugs were being sold from a particular residence, a police detective "surveilled the Residence and observed ‘several visits’ there, each lasting one to three minutes." Buffer , 529 F. App'x at 483. The detective, who was "experienced and trained in narcotics investigations, concluded that these short visits were consistent with drug transactions." Id. He stopped a vehicle leaving the residence for a traffic violation and recovered 2.2 grams of marijuana from a passenger, Mr. Sanders. Id. Officers had seen Mr. Sanders making a transaction at the door to the residence. Id. The detective submitted a search warrant affidavit for the residence based on the anonymous tip, his surveillance of the residence, and the marijuana found in the possession of Mr. Sanders. Id. The Sixth Circuit found that the affidavit failed to establish probable cause and that the Leon good faith exception did not apply. The court noted that "[w]here, as here, the informant is anonymous, and no information exists as to the informant's reliability, probable cause can still exist if the officer sufficiently corroborates the tip." Id. at 484. The court found insufficient corroboration. Id. at 484-85. The affidavit did not specify the number of short visits observed or the time span of surveillance. Id. at 485. The affidavit "sa[id] nothing about the allegedly criminal nature of the ‘transactions’ that occurred" and "reveal[ed] neither the manner in which the transactions took place nor what, if anything, was exchanged." Id. The court concluded that "the discovery of marijuana [in Mr. Sanders's possession], even when taken together with the short visits and the anonymous tip, did not create a substantial basis for determining that probable cause existed to search the Residence." Id. The court emphasized that "there is no clear nexus between Sanders's possession of the marijuana and the Residence; it is entirely possible, for example, that Sanders already had the marijuana on his person when he arrived at the Residence." Id.
The court noted that the "very small quantity of marijuana, the approximate equivalent of one marijuana cigarette" found on Mr. Sanders's person is "a quantity that hardly suggests a recent drug sale." Id.
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As in McPhearson, Brown , and Buffer , the affidavit in this case fails to establish a minimally sufficient nexus between the illegal activity and the place to be searched. It relies too much on generalities and inferences and lacks concrete specificity for a reasonably well-trained officer to believe the search warrant was valid under the Fourth Amendment. The wholly inadequate basis to support the "no-knock" request further underscores for any reasonable officer just how bare bones this particular affidavit was. The officer's hunches were certainly well-founded in retrospect based on what was found during the search. But that is not a substitute for careful articulation of concrete probable cause in the warrant affidavit. The evidence obtained in the execution of the warrant must be suppressed.
CONCLUSION
For these reasons, the Court concludes that the relief Defendant seeks in his motion to suppress is warranted.
ACCORDINGLY, IT IS ORDERED :
Defendant's Motion to Suppress (ECF No. 15) is GRANTED .