to suppress before the united states district court for the western district of michigan mr gouveia entered a conditional guilty plea and was permitted to bring this to bring this matter to the six circuit court of appeals as part of that plea he is currently serving time in incarceration the united states supreme court as i'm sure the court is aware said numerous times that the physical interest of the home is the chief evil against which the wording of the th amendment is directed and that's really home in order to conduct a search based on what we is that what we believe is a very very thin standard of probable cause and in fact the district court in this case and a couple places and it's ruling said well the affidavit here with respect to mr give a as home is sort of thin and it one point determined that it was a close call with respect to probable cause now if the court really rule one way or the other whether there was probable cause you know and that's an issue i was just taking a look at morning yeah and no they didn't definitively really ever order that it was more of a one way it was probable cause the viable cause supported the warrant sort of kicked it to that leon good faith exception that's kind of really what this case comes down to is to whether it meets the young good faith exception or not but probable cause is a part of that analysis as well but i don't think they specifically said it had the warrant has probable cause but they also didn't specifically say the judge up there didn't specifically say there was no probable cause either so that helps your case is that we have different lines threads of authority when it comes to whether one can expect to find drugs at the home of a drug dealer or someone not to be dealing drugs and so on the one hand those different lines of authority help you potentially in a probable cause  you seem quite hurtful on the leon good faith theory because it seems to me an officer would respond by saying the judges on the six circuit can't figure this out why should i have to figure this out yes and i see your point your honor and i and and the and the leon nexus in order to get passed that leon good faith exception and in here what we have is we have an officer who is determined several things in his affidavit number one that there is this gentleman out and my client leave his backyard get into a two thousand and seventeen nissan drive to my client's house mr gubb a us house where he went in very shortly and came back outside and then a person into a transaction where mr belcher conduct a a drug deal and a transaction which had sort of been arranged beforehand and yeah you absolutely want your phone calls so that the timing is such that a man of reasonable caution would say they knew they were going to a drug deal a man of reasonable caution may say that but also with respect to the phone calls your honor there are no phone calls specifically with my client and missed the confidential informant you know there were these with a drug deal yes well in august they don't have the question of is going into the house and coming out of the house having something to do with the drug deal drugs or guns or did they just stop you know to pick up a pack of cigarettes or get the morning paper well and i mean is that in that kind of fear of what that trent what that entry term was or what a man of reasonable caution might think it might have been you know and that i think it that is reasonable inference yes can you reasonably infer you went in there and got some drugs or gun or something i greet the key point you know but what's troubling is the officer could have hired a bunch of six circuit cases right next to him saying drug the officer never observed anything that mr gove a us house that would really indicate any type of drug dealing centrally he's going on a hunch that this is a stash alice because he's familiar with those the way drug dealers do business we all know the standard recitations or go into the all these warrants address the timing issue of the phone call from the confidential informant to mr belcher that make any difference i don't think the affidavit sets forth the timing of when the call within some reasonable period of time before they left dolby to go to mason stria i honestly don't know your honor but i mean what does make a difference i don't know that it does one way or the other i would think that you know whenever the call was made you know clearly it was mr belcher's intent to go conduct this transaction and again i'm not going to hide from the facts in this case because you can't hide from the facts the confidential informant reported that mr go there any nuff in that officer's mind to conclude that that one brief stop at the at the mason street address where mr vaile was living was enough to assume that he went inside grab some drugs and that was part of the drug transactions does it make a difference that the affidavit says i think that mr goh had been in proximity had think to mr belcher for dozens and dozens of times in the past year when mr yeah it makes a difference with respect to can you determine that my client mr gouveia is involved and drug trafficking yes i think you can determine that from those particular you know from all those incidences what the considered well and you look at the mason street address and they verts a stash else but you can't and we do know that based on the facts but those came later when they conducted the search they found all the heroin cocaine firearms whatever in there but we can't take a look back not hindsight at that point it's looking at what does the officer know at that point and does this obviously have a case where someone rejected the leon good faith and rejected it in this kind of a setting where the mistake was assuming too quickly that a drug dealer keeps drugs in the house and i don't know that it's because at that i want i'm sorry want i only wanted if it has that last point i don't i don't think that i have found anything to that effect of the only thing i really can find with respect to i cited in the brief was the eastern district of michigan case that i cited in the brief where where the court determined that you know there wasn't a i don't know if the term right term mentally sufficient nexus or whatever but i think that you know i don't know that i've had anybody found in my research anything where they were solely rejected the will of the eastern district of michigan cases that brown no brown is actually this this ports case i believe you identified miles i believe out of the eastern district of michigan i'm having a little trouble finding it at this point i think oh we can look at that yeah and of course it goes through yeah it's miles yeah word said that the fort they are the eastern district of michigan said here the warrant is completely devoid of any facts suggesting that the defendant deals drugs keeps contraband or other and dacia the invention of drug trafficking and his current residence and that's kind of the issue here is that the one where he had moved houses the whole bunch of these cases yeah i don't know that that necessarily was the one where he moved houses here i don't have that fact in front of me i think the facts in that case said that they he had slept in the apartment twice which you know we don't know in the record how often mr kobe if they hadn't surveilled him any other time here they surveilled and they surveilled him going into the house in the midst of a drug deal and and in the midst of a drug deal but do we know based on this record if he came out with drugs because there was never any indication that that's clear but the in the afternoon action to miles at least as i read it they say you know he sold heroin earlier at other locations he wrecked previous etc et really you know saying in the head they had to make some attempt to connect the drug trafficking with the apartment while here they made a pretty pretty decent attempt the guy is stopping there you know in the midst of the drug deal to go in you're right i mean he could have been he could have been going to the bathroom he could have been you know getting his copy of the iliad i see my time is up so you may finish your ok yes no it and again and again  with without having the in context and i understand these cases turn a lot of decks but without having it in context that there had been other drug trafficking observe that this particular residence we can't reasonably infer that he came out with drugs even though yes it was a mist of a drug deal we do know that or perhaps mr belcher had those before thank you ok thank you you have your rebuttal t this record and because the officers relied on the warrant in good faith so to start with probable cause i think if there is a rule that you can draw from this court's cases it's that when you're dealing with an ongoing continual drug traffic  or if there's some reliable evidence connecting to the residence then that is sufficient for probable cause i'm drawing that from united states versus mccoy and also from the evidence that connects it to the house what you mean by that it's some reliable some reliable evidence  i believe that's the wording that they use in that case and so several different types of things would suffice in this case we have the stock directly before the drug deal when the drug deal is about to happen they stop  that's been sufficient cases that said you can't just assume because you're doing drugs that the drugs are in the house you can't just assume no but the the cases do say that that is a inference to the judge can draw now it's not enough to get to probable cause unless there's something extra now in states versus frazier this court said it was not enough but they did find good faith because all of the information that the that was in the warrant was uncorroborated information informants and so in that case it was not reliable information now there's been other cases in which there's been absolutely no nexus whatsoever no attempts to connect the residence and even in some of those cases this court has found probable cause and has also found that faced i think the best case for united states here is united states versus gunter it is an unpublished case but it is a case where the like here there was no statement connecting the saar there was no person who said that they observed drug in the residence or that they had done a drug deal there but there were many drug deals that happened outside of the her residence and  the officers actually observed the drug dealer stop by his residence directly before going to a drug deal and this court found that that met the standard set forth in jones and in this case as other this court's other cases about there being a sufficient connection there to make that inference the drug dealers tend to keep their evidence that you have an objection to going straight to leon but have an objection no your honor i think that in this case there was sufficient probable cause but we will take any basis that we can we're not so definitely there was a good faith in this case as well as it is you know the th amendment has it's reasonable notice it's facts and circumstances and facts and circumstances us don't tend to generate rules and just it's i think it's quite difficult to figure out exactly what you used the phrase reliable evidence that links it to the home and the best i could tell that means you want to go home at some point during drug dealing which i don't see why that's reliable evidence that seems to beg the question at least according to some other cases in our circuit so it seems to me a little easier just to say an officer could have relied in some cases suggesting that's a fair inference here even though there are some other cases suggesting the opposite well certainly your honor and the officer certainly could have relied on cases like gunter for good faith here now the benefit of having a probable cause finding and supporting that is telling them yes that was sufficient the better decisions that they can make and the better deference this court can give in the future so that would be our plug for a probable cause finding but certainly ok with guidance going the other direction i would prefer not to have guidance going the other direction your honor or with this reader i'm sorry you have to take the bitter with the sweet that is true but given that you substantial deference afforded to the magistrate's determination here when we have what the district court considered a close call that should weigh in the magistrate's favor and so here even if it is only some evidence it is some evidence and it is reliable the reliable issue i think comes in terms of informants uncorroborated tapes things like that says i was in the house or i saw something in the house correct your honor is here you obviously have the surveillance of him going minute right so we have the law enforcement seeing him go in and out and we know that the timing was directly before going to meet with the c i into the drug deal we also have substantial evidence here of ongoing continual drug trafficking we have mr go there who was present at most over one hundred dollars meth dealers in the course of a year with one single informant we also have three within the last month that he was president all of them which were the controlled bias at least one of those mr grover was armed and then the last deal was within forty eight hours and that was the one where where they stopped at mr obama's home directly before meeting with the c i so there is substantial evidence here that mr goble was involved in this that he was carrying a gun and i would say that's an additional reason that probable cause should be found here because with drugs we always have the problem that they dissipate right there if they're sold or they're hughes so i want to talk about what's the quantity was there enough is it truly drug trafficking otherwise the drugs that were there yesterday might not be there today but here we have a gun as well we have mr go by carrying the gun on her or using the gun or using the gun because that shows the drugs they're using the gun because you could have plain view of the drugs if you have probable cause there was a gun in the house when you look for the gun both but paramor of primarily the nd your honor that i don't know that it's true that drugs are were guns are well if you can look anywhere that something the size of a gun would be then if the drugs are that size than they could also be there so that would be in plain view the warrant for the gun is not going to restrict them to only look in certain areas it's going to be the entire home and unless the west we're talking about something smaller than a gun that they had to open and look in to find the drugs which i don't think we have on this record and they would have seen the drugs in plain i'd also like to point the court to another case which is united states versus davidson that is a published case that is a little older i think from one thousand nine hundred and one sided in our brief and that's another one where this court found probable cause and there was no actual sighting of drugs no deals of drugs in the residence but you do have several meetings actually in that case you don't have any sighting of drugs at all you have several meetings between known drug traffickers a public locations talking about drugs so we have no actual deals in that case but two times that they stopped by the house and this court said that that was sufficient for making this inference that drug dealers to keep evidence in their home now until this this may be know all of the briefing and records and so on people are talking about three controlled by the cia maybe three controlled was in the affidavit there's one place where it says the informant working in the direction of control has made for controlled purchases is that a typo or do you have any idea they talking about a transaction with some other person or either to i believe that that is in the section where the is talking about the reliability of the informant so i believe that that is a separate deal that's not related to this case ok thank you yes so for those reasons we asked this court to find out the magistrate had a substantial basis for probable cause but even if the court prefers not to do that not to reach that question we do ask you to find that the officers were alive in good faith the standard for the next this is certainly lower this court has said that evidence that would not be sufficient for a nexus for probable cause can still be sufficient for good faith and as you pointed out judge sutton there are multiple cases kind of all over the board in the circuit and what is enough for probable cause in these circumstances and certainly here relying on the gunter case in the davidson case the officers could reasonably rely that there was a nuff in this warrant for them to go into the house so unless they a something along the lines of listen if you've got decent evidence that someone is involved in drug trafficking fairly contemporaneous with going to vera house that's enough is that was that what you would call the perp not quite sure what you mean by fairly contemporaneously the words i'm trying to figure out if there is a rule that one can articulate i'm just asking for your best sense of what the rule is you started with reliable evidence that seemed kind of question begging to me so i'm just trying to be as specific as possible and i think what you've been saying something along the lines of the government has decent evidence cooperate in some way that someone's involved  drug trafficking and the person goes to their house that's enough even if you have no evidence of what's inside the house it has to be somewhat contemporaneous that's what i don't know how else to put it maybe within a couple  hours maybe within a day what's the rule i'm just curious what you think the rule is well i think that there i think it's hard to have a specific rule because there are so many different situations but the rule that i would apply the best you're not here because  just explain for a moment why so i think the rule that there has to be libel evidence is that going to be reliable i say to some reliable evidence which would include a stop at the house before directly before a drug deal certainly now when you say some contemporaneous i don't know if just going to the house the next day because he lives there is enough but certainly when they stop at the house they make and they go out of their way to stop at the house before going to the drug deal that's enough in the midst of a drug deal is you say is the easy one and you're not sure how to define it after that is the way you would put it right well i think it depends it depends the so fact dependent right if if we have only isolated you know a couple drug deals here or there then i think you need a different standard of connection to the house if you have what we have here which is kind of constant ongoing drug trafficking i think that you can have a slightly less connection to the house and still that in ence reasonably applies i think the timing to the timing definitely matters i think i think all of those things can matter and coming up with a rule which is why it's so fact dependent and hard to come up with a very specific rule but i think certainly in this case we have switched roles completely i want to i didn't want to rule no i want the rule and you're saying you can't give us a rule i am certainly not it shows i'm not complaining i'm just showing saying it shows it's hard once one's asked to articulate it it gets heard right well i guess i should clarify i'm not asking the court to say this is our one standard that we apply no matter what the facts are because and that standard is probable cause for that standard is a fair probability that evidence will be found in the location and the reason that the spring for to stop and able to give us a much more specific definition than that is because it is so fact dependent but when dealing with i'm going continuous drug trafficking  that they that they got in the deal yes without the sat yes of course and all the other side they also stopped at the grocery and bought a sack of potatoes and they went into the house and came out with only one sack of the potato exception right because they were getting there i think we're almost there but then you go if you say reliable evidence and that's that's what magistrates are for the police officers are exactly your hon well involved in this drug trafficking organization he is president for most of one hundred deals with this one c i now i mean generally you don't bring your friend with you on one hundred times to do illegal drug trafficking again we have the with mr belcher sort of guilt by association he's part of somehow part and parcel of the drug dealing operation i would not call it guilt by association in this case your honor because we have so many times we have him being on parole as if i say my time is up but i may ask a question we have him on parole carrying a gun that's observed by the c i during multiple occasions of the drug trafficking including  one of the three controlled by his within the last month and we have him present that many times it's just not a reasonable inference that he just happened to be there now could the affidavit have been more specific about exactly where he was whether he observed it if he said anything yes it could have but also in these cases law enforcement is trying to be careful not to put in too many details to not out there so you know could they have done better certainly but i think what they did do was sufficient h you i just want to touch on a couple of points that the government made there to wrap this up i may well be driving back to tennessee this afternoon though trying to figure out exactly who reliable evidence is because that seems to be the key issue here is what is reliable as we will assert in this case that it is not reliable to assume that a man stops at his house before he heads to a drug transaction without any other corroborating evidence or anything else that shows it was drug transactions going on there and that be used as a basis to get a search warrant for his home the fact the matter is the government it highlights his point about the ongoing criminal drug trafficking activity cetera et cetera that's not the issue really the issue is what is the minimal sufficient nexus between mr good and his home you can probably reach without any problem a mentally  was with mr belcher who was conducting drug deals we can get there the key is what is the connection to the home and the final point i would like to make is that a lot of times and i meant to bring this up earlier a lot of times in their brief they mention that the prosecutor probably the same officer to execute the want the warrant is probably the same one who executed the search so obviously he's going to rely on his own his own statements so with that your honors thank you very much for your time and we would ask respectfully is can conviction be reversed the case be remanded allow him and his trial counsel to pursue however they wish thank you very much ok well thank you counsel both of you for your arguments this morning and mr brown i see that you are appearing today and otherwise representing mr gove under the criminal justice act for that we thank you appreciate the work you've done for him and for the court very helpful to have mores like you who are willing to take clients under this arrangement so we we thank you very much and  long again we thank you for your appearance here today and arguments that were very well presented by both of you so