1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0030p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JEFFREY BURNEY, 

Defendant-Appellant. 

┐

│

│

│

│

│

│

│

┘

No. 14-3526 

Appeal from the United States District Court 

for the Southern District of Ohio at Dayton. 

No. 3:12-cr-00151-2—Thomas M. Rose, District Judge. 

Decided and Filed: February 19, 2015 

Before: NORRIS, ROGERS, WHITE, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, 

Ohio, for Appellant. Brent G. Tabacchi, UNITED STATES ATTORNEY’S OFFICE, Dayton, 

Ohio, for Appellee. 

 ROGERS, J., delivered the opinion of the court in which NORRIS, J., joined. WHITE, J. 

(pp. 9–13), delivered a separate dissenting opinion. 

_________________ 

OPINION

_________________ 

 ROGERS, Circuit Judge. When police officers executed a search warrant at the 2044 

Litchfield Avenue residence in Dayton, Ohio, they found Jeffrey Burney, a number of handguns, 

and several ounces of crack cocaine inside. Convicted of possessing crack cocaine with intent to 

distribute it, Burney appeals on the sole ground that the warrant underlying the search was not 

>
No. 14-3526 United States v. Burney Page 2 

supported by probable cause. The affidavit supporting the warrant provided several strong 

indications that the residence was used as a stash house by a drug trafficking operation, and that 

the house had been unoccupied for more than eight months when Burney, a repeat drug convict, 

moved in a few weeks before officers obtained the warrant. Because the warrant affidavit 

presented sufficient evidence tying the property, if not Burney himself, to an ongoing drug 

trafficking and money laundering operation, and because that evidence, taken as a whole, was 

sufficiently reliable, the district court properly denied Burney’s motion to suppress. 

From October 2011 through July 2012, a drug task force in Montgomery County, Ohio 

investigated Dion Ross and several of his associates for operating a drug trafficking and money 

laundering ring in the Dayton metro area. In the course of its investigation, the task force 

collected information from reliable confidential informants, made controlled buys of cocaine 

from Ross and his associates, and conducted extensive surveillance of properties the task force 

suspected Ross was using as “stash houses”—places to store bulk quantities of drugs, firearms, 

and cash associated with his drug trafficking and money laundering operation. 

 An analysis of financial records and public documents led the task force to conclude that 

Djuna Brown-Jennings played an integral role in Ross’s criminal enterprise, laundering drug 

proceeds for Ross and fraudulently hiding his assets—including multiple homes and cars—in her 

name. Despite the relatively modest income she reported on her state tax returns, BrownJennings held title to 16 vehicles, including multiple newer, high-end cars. Between 2010 and 

2012, she applied for temporary license tags for nine additional vehicles, including several cars 

titled to a business Ross owned. County records also showed that Brown-Jennings owned and 

received utility bills for multiple homes in the Dayton metro area. Based on the disparity 

between her reported income and the assets she controlled, task force members concluded that 

Brown-Jennings was merely a nominee owner of those properties, and that she held title to them 

as a “front” for Ross. 

Officers’ suspicions about the link between Ross and Brown-Jennings were buttressed by 

evidence that Ross used property—such as cell phones, cars, and homes—registered to BrownJennings in trafficking cocaine. For instance, during a series of controlled buys from Ross and 

his associates, a confidential informant repeatedly contacted Ross on a cell phone registered to 
No. 14-3526 United States v. Burney Page 3 

Brown-Jennings. On at least one such occasion, Ross drove a car registered to Brown-Jennings 

to a drug deal with the confidential informant. 

One of the properties to which Brown-Jennings held title was located at 2044 Litchfield 

Avenue (“the Litchfield property”). In the course of its investigation, the task force came to 

suspect that the Litchfield property was one of Ross’s stash houses. This suspicion was 

supported by several pieces of evidence. First and foremost, Brown-Jennings held title to the 

property and the utilities for it were in her name, even though she did not live there. Indeed, for 

months during the task force’s investigation, the Litchfield property appeared to be totally 

unoccupied. Additionally, on October 19, 2011, after a confidential informant arranged a 

cocaine buy with Ross, task force officers saw Ross enter and promptly exit the Litchfield 

residence, from which he drove to the meet location and delivered more than 100 grams of 

cocaine to the confidential informant. Following the October 19 controlled buy, officers 

conducted spot checks of the Litchfield property and repeatedly observed Ross’s cars parked in 

the driveway. 

During June 2012, officers noticed that a truck registered to Jeffrey Burney was 

sometimes parked at the Litchfield property. Searches of several law enforcement databases 

showed that Burney had recently listed the Litchfield property as his residence on certain legal 

documents. Those same searches also revealed that Burney had been convicted of five drug 

offenses in the past decade and was even then on parole for one such offense. 

On June 30, 2012, after more than eight months’ investigation, task force officers 

presented a judge of the Montgomery County Court of Common Pleas with a 17-page affidavit 

for a warrant to search the Litchfield property. The affidavit detailed the task force’s reasons for 

believing Ross was using the property as a stash house. After reviewing the affidavit, which 

included all of the information set out above, see United States v. Burney, No. 3:12-cr-151, doc. 

# 74, the judge issued the warrant.1

 A few days later, police executed the search warrant at the 

 1

The main portion of the affidavit dealing specifically with the Litchfield property provides as follows: 

 1. The Affiant found that Djuna Brown is the listed owner of this property and the 

[utilities] account at this location is in her name (see paragraph K). Through the 

Affiant’s investigation, the Affiant has learned that Dion Ross often uses assets in 

Djuna Brown’s name, including vehicles, houses, and cell phones. (see paragraphs 

R, V, and SS section 4) 
No. 14-3526 United States v. Burney Page 4 

Litchfield property. Inside the residence, they discovered Burney, multiple firearms, and several 

ounces of cocaine. 

Burney was indicted on three counts, including being a felon in possession of a firearm 

and possessing crack cocaine with intent to distribute it. Before trial, he moved to suppress 

evidence of the handguns and drugs officers found in their search of the Litchfield property, 

contending that the underlying warrant was not based on probable cause. The district court 

denied the motion, prompting Burney to enter a conditional guilty plea to the charge of 

possessing crack cocaine with intent to distribute it. The district court sentenced Burney to 

60 months of imprisonment and 60 months of supervised release. Burney now appeals, 

challenging the court’s denial of his motion to suppress. 

Whether an affidavit contains evidence sufficient to establish probable cause depends on 

whether it establishes “a nexus between the place to be searched and the evidence to be sought.” 

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). In this case, the 

requisite nexus was supplied principally by the Litchfield property’s persistent connections to 

 2. During a controlled narcotics purchase from Dion Ross in October of 2011, the 

Affiant observed Dion Ross leave 2044 Litchfield Avenue and drive directly to the 

buy location, where Ross delivered an amount of powder cocaine to [a confidential 

informant]. (see paragraph V) 

3. Since October of 2011, the Affiant has conducted surveillance of 2044 Litchfield 

Avenue several times, at various times of day and night. On several occasions, the 

Affiant has observed vehicles that he knew Dion Ross to be driving parked in the 

driveway of the residence. For several months, it did not appear to the Affiant that 

anyone was residing at 2044 Litchfield Avenue, as the house appeared to be vacant 

from the street. 

4. In June of 2012, the Affiant and other members of the RANGE Task Force observed 

a red 2003 Ford truck bearing Ohio registration FOM9952 parked in the driveway of 

2044 Litchfield Avenue several times, most recently on June 30th, 2012. 

5. Upon checking the registration through [a law enforcement database], the Affiant 

found that the vehicle was registered to one Jeffery L. Burney B/M DOB/[redacted], 

SOC [redacted], with an address of 2044 Litchfield Avenue. Upon checking Burney 

through various law enforcement databases, the Affiant found that Burney is 

currently on parole through the State of Ohio for Possession of Drugs (crack) and 

Felonious Assault. The Affiant also found that Burney has at least four previous 

convictions for Possession of Crack in Montgomery County [case numbers omitted]. 

6. The Affiant requests the court’s permission to search 2044 Litchfield Avenue in the 

City of Dayton as the Affiant believes that this is a possible “stash” house of Dion 

Ross. 

United States v. Burney, No. 3:12-cr-151, doc. # 74, at 10.
No. 14-3526 United States v. Burney Page 5 

Ross and Brown-Jennings, who police had reason to suspect were cooperating in a drug 

trafficking and money laundering operation. After more than eight months of investigation, the 

task force concluded that Ross operated several stash houses in the Dayton metro area, and the 

task force had ample basis for believing the Litchfield property was one of them. For one thing, 

Brown-Jennings held title to the Litchfield property and the utilities for it were in her name. 

Police knew Brown-Jennings served as a front for Ross’s drug trafficking and money laundering 

operation, purchasing and holding assets for Ross—including homes and vehicles—in her name. 

Thus, Brown-Jennings’ ownership of the Litchfield property strongly suggested a connection 

between the property and Ross’s illicit operation. 

Police had also repeatedly spotted Ross and his vehicles at the Litchfield property, both 

during and after the October 19 controlled buy at which Ross drove directly from the Litchfield 

property to the scene of the exchange. Ross’s frequent presence at the property was all the more 

probative of unlawful activity because title to the property was not in his name and, for months 

during the investigation, the property had no known tenant that Ross might have been visiting. 

The only occupant ever identified in the affidavit was Burney, who apparently moved in just a 

few weeks before the search warrant issued (and, perhaps not coincidentally, on the eve of 

Ross’s receiving a sizable shipment of drugs, as described in the affidavit at paragraphs PP–RR). 

Not only did Burney have several drug convictions to his name, he was on parole for one such 

conviction when he began listing the Litchfield property as his residence. His presence at the 

Litchfield property would only further support the conclusion that the property was affiliated 

with illicit drug trafficking. 

The above-recited facts from the affidavit—considered together, as they must be, see 

United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006)—constitute probable cause to search 

the Litchfield property. That is particularly true in light of both the “great deference” we owe the 

magistrate judge’s probable cause assessment, United States v. Greene, 250 F.3d 471, 478 (6th 

Cir. 2001), and the Supreme Court’s recent statement that, “Probable cause . . . is not a high bar: 

It requires only the kind of fair probability on which reasonable and prudent people, not legal 

technicians, act.” Kaley v. United States, 134 S. Ct. 1090, 1103 (2014). The facts recited in the 

warrant affidavit established just that type of “fair probability”: the Litchfield property was 
No. 14-3526 United States v. Burney Page 6 

owned by Ross’s principal “front”; Ross had repeatedly visited the property, including once just 

before a controlled buy with a confidential informant; the property had sat suspiciously 

unoccupied for months on end; and the new tenant at the property had a lengthy history of drug 

convictions. 

None of Burney’s arguments undermines the conclusion that probable cause existed here. 

It is true that Burney was the sole occupant of the otherwise vacant Litchfield property, that the 

affidavit did not link him to Ross, and that the affidavit contained no evidence that Burney was 

involved in Ross’s operation. But the pertinent question in this case is not whether officers had 

cause to search the Litchfield property because it was Burney’s residence, nor whether they had 

cause to suspect Burney of working with Ross. “The 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 (1978). Thus, in 

determining whether the warrant affidavit supplied probable cause, the only relevant question is 

whether the affidavit gave a reasonable basis for believing there were drugs or evidence of drug 

trafficking at the Litchfield property. Ross’s and Brown-Jennings’ many connections to the 

property, together with its having sat vacant for months and only recently having been occupied 

by a man with multiple drug convictions, made it reasonable to conclude that the property was 

one of Ross’s stash houses, so that there would be evidence of drug trafficking within it. This is 

so regardless of whether police had any evidence tying Burney to Ross. The fact that Burney 

was only mentioned in one paragraph of the affidavit is not determinative—it was the Litchfield 

property, not Burney, that was the subject of the affidavit. 

The evidence linking the Litchfield property to Ross’s drug trafficking operation was also 

not “stale.” Burney points out that the last time police saw Ross in person at the Litchfield 

residence was eight months before the warrant was obtained. In fact, police had, on more recent 

occasions, seen Ross’s vehicles parked at the Litchfield residence. That they did not observe 

Ross in the flesh on those occasions does not mean they could not reasonably conclude he was 

inside the Litchfield property in each instance. 
No. 14-3526 United States v. Burney Page 7 

The bare fact that a piece of evidence is months old, moreover, does not automatically 

make it stale. Rather than imposing arbitrary, inflexible deadlines, the staleness inquiry turns on 

four practical, fact-dependent considerations: 

(1) the character of the crime (chance encounter in the night or regenerating 

conspiracy?), (2) the criminal (nomadic or entrenched?), (3) the thing to be seized 

(perishable and easily transferrable or of enduring utility to its holder?), and 

(4) the place to be searched (mere criminal forum or secure operational base?). 

United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). In this case, all four of those 

considerations militate in favor of finding the relevant evidence sufficiently non-stale. First, the 

crime at issue—a large-scale drug trafficking and money laundering operation—is a 

regenerating, enduring criminal enterprise that bears no resemblance to a “chance encounter in 

the night.” Second, the criminal under investigation—Ross—was firmly entrenched in the 

Dayton metro area. By its very nature, his drug trafficking operation, relying as it did on an 

established network of distributors and customers, was not the kind of nomadic or sporadic 

criminal enterprise likely to up-and-vanish under cover of darkness. Third, the evidence to be 

seized under the warrant was not perishable in the way that, for example, a few crack rocks are 

perishable. On the contrary, the evidence to be seized in this case included anything tending to 

show that the Litchfield property was being used as a stash house. Unlike evidence of drug 

possession, evidence that a residence is being used as a stash house is unlikely to be consumed or 

to disappear, precisely because that evidence—scales, weapons, safes, bagging materials, and the 

like—is not readily consumable and is “of enduring utility to its holder.” Finally, a stash house 

is, by definition, a “secure operational base,” rather than a “mere criminal forum.” For all those 

reasons, evidence of Ross’s use of the Litchfield property was not stale when it was presented as 

part of the warrant affidavit here at issue. 

 It is true that, in United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010), we noted in 

dictum that, “Given the mobile and quickly consumable nature of narcotics, evidence of drug 

sales or purchases loses its freshness extremely quickly.” But the affidavit in this case did not 

suggest that police sought evidence of specific drug sales or purchases at the Litchfield property. 

Instead, the thing to be seized in this case was evidence that the property was being used on an 

ongoing basis as part of a drug trafficking operation. That evidence, for the reasons set out 
No. 14-3526 United States v. Burney Page 8 

above, was much less likely to disappear than is evidence of drug sales, purchases, or possession. 

The language from Brooks—and other cases where police sought evidence of specific drug 

transactions or instances of possession—is therefore inapposite. 

 The evidence of Ross’s use of the Litchfield property also did not become stale simply 

because Burney had apparently taken up residence at the property only a few weeks before the 

warrant issued. Brown-Jennings continued to hold title to the Litchfield property and receive 

utility bills for the property at the time the warrant issued. Thus, a key link between Ross’s 

criminal enterprise and the Litchfield property remained in place throughout Burney’s residency. 

Furthermore, to find that Burney’s residency erased all ties between the property and 

Ross’s drug trafficking operation would require a court to ignore what the affidavit revealed 

about Burney. As the affidavit explained, officers knew that the Litchfield property’s new 

resident had an extensive rap sheet, including five recent convictions for possessing crack 

cocaine, the very substance in which Ross trafficked. Indeed, when the warrant issued, Burney 

was still on parole for one such conviction. That Burney had begun claiming the Litchfield 

property as his residence sometime in June 2012 could not, then, as a matter of common sense, 

have done anything to reduce the likelihood of ongoing illicit drug activity inside the property. 

As the Supreme Court stated in Illinois v. Gates, 462 U.S. 213, 238 (1983), a magistrate judge’s 

task when deciding whether to issue a warrant “is simply to make a practical, common-sense 

decision.” 

 The warrant affidavit supplied probable cause to search the Litchfield property, so that 

the district court did not err in denying Burney’s motion to suppress. Because the warrant was 

supported by probable cause, we need not address the parties’ arguments concerning the goodfaith exception to the warrant requirement from United States v. Leon, 468 U.S. 897 (1984), or 

Burney’s status as a parolee. 

The judgment of the district court is AFFIRMED. 

 
No. 14-3526 United States v. Burney Page 9 

_________________ 

DISSENT

_________________ 

HELENE N. WHITE, Circuit Judge. I respectfully dissent. The majority fails to 

appreciate the significance of Burney’s moving into the Litchfield property and wrongly imputes 

Ross’s alleged bad acts to Burney by relieving the Government of the obligation to show 

probable cause to believe that the property was still used as a “stash house” after Burney moved 

in. I would reverse the denial of Burney’s suppression motion and vacate his guilty plea. 

I. 

The affidavit dated June 30th, 2012, covered seventeen pages, pertained to seven 

residences, and was entirely premised on Ross’s alleged criminal enterprise. As the majority 

acknowledges, Burney was mentioned only one time, and only in relation to the Litchfield 

property. The pertinent section of the affidavit consists of three statements regarding the 

Litchfield property: 

3. Since October of 2011, the Affiant has conducted surveillance of 2044 

Litchfield Avenue several times, at various times of the day and night. On several 

occasions, the Affiant has observed vehicles that he knew Dion Ross to be driving 

parked in the driveway of the residence. For several months, it did not appear to 

the Affiant that anyone was residing at 2044 Litchfield Avenue, as the house 

appeared to be vacant from the street. 

4. In June of 2012, the Affiant and other members of the RANGE Task Force 

observed a red 2003 Ford truck bearing Ohio registration FOM9952 parked in the 

driveway of 2044 Litchfield Avenue several times, most recently on June 30th, 

2012. 

5. Upon checking the registration through [a law enforcement database], the 

Affiant found that the vehicle was registered to [Burney] with an address of 2044 

Litchfield Avenue. Upon checking Burney through various law enforcement 

databases, the Affiant found that Burney is currently on parole through the State 

of Ohio for Possession of Drugs (crack) and Felonious Assault. The Affiant also 

found that Burney has at least four previous convictions for Possession of Crack. 
No. 14-3526 United States v. Burney Page 10 

II. 

A. 

The affidavit is fraught with ambiguity, and the issuing magistrate should have demanded 

clarity before authorizing a search of Burney’s home. Nevertheless, the majority implies facts 

that are not supported by the record. For example, a material ambiguity in the affidavit stems 

from Officer McCoy’s statement that he saw vehicles associated with Ross at the property 

“several times” since October 2011. It is impossible to know how many times “several” 

indicates, or when he saw these cars (i.e., just prior to Burney moving in or only in November 

2011). Nevertheless, the majority concludes: “Following the October 19th controlled buy, 

officers conducted spot checks of the Litchfield property and repeatedly observed Ross’s cars 

parked in the driveway.” This gives the unsupported impression that Ross’s cars were present at 

the Litchfield property as a matter of course in the months following October 2011. Ambiguous 

as it may be, the affidavit suggests that the vehicles associated with Ross stopped appearing at 

the property some “several month” period prior to June 2012. And, Officer McCoy’s testimony 

confirms that the majority’s conclusion is incorrect: no vehicles were seen at the property for at 

least “several months” prior to June 2012. Thus, at a minimum, several months went by where 

there was no indication that Ross or his associates were using the Litchfield property at all, much 

less as a “stash house.” 

 This faulty inference matters; that the house appeared to be occupied and visited by Ross 

or his associates, then went through a “several month” period of being unoccupied and unvisited, 

and then was occupied again (by Burney) in June 2012 leads to the conclusion, or at minimum 

raises the very significant probability, absent evidence to the contrary, that drug activity Ross or 

his associates may have conducted at the house had ceased. 

B. 

 It is undisputed that Burney had a reasonable expectation of privacy in the Litchfield 

property. Accordingly, the officers needed a properly supported warrant to search his home. 

See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). For the warrant to be valid, the 

affidavit had to establish probable cause to believe that evidence of criminal activity would be 
No. 14-3526 United States v. Burney Page 11 

found at the property notwithstanding the officers’ observations supporting that possession of the 

property had changed hands. See, e.g., United States v. Hython, 443 F.3d 480, 486 (6th Cir. 

2006) (“Even had the affidavit stated that from time out of mind [the location under 

investigation] had been a notorious drug den, some recent information would be necessary to 

eliminate the possibility that a transfer in ownership or a cessation of illegal activity had not 

taken place.”). 

At bottom, the majority’s decision hinges on Ross’s de facto ownership of the Litchfield 

property through Brown-Jennings. In explaining how the affidavit supported the search warrant, 

the majority states: “First and foremost, Brown-Jennings held title to the property and the 

utilities for it were in her name, even though she did not live there.” But as the majority 

acknowledges, “The 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 (1978). Had Burney not moved into the property, there would 

be no problem searching the property based on the observations in the warrant. But, Burney’s 

moving in and listing the property as his residence after it was unoccupied signaled a change of 

possession and control and, therefore, a more thorough review of the affidavit was required to 

ensure that Burney’s constitutional rights were not violated. See Hython, 443 F.3d at 486. 

Brown-Jennings’s title to the Litchfield property would not support a search without some 

indication that she or Ross continued to have a connection to the premises other than mere title. 

The majority necessarily assumes that Ross’s use of the property continued despite 

Burney’s moving in. Without some indication that Ross’s use of the Litchfield property 

continued after Burney moved in, there is no justification for treating the change of residence as 

insignificant. See id. As in Hython, given the length of time between the alleged criminal 

activity and the application for the search warrant, coupled with Burney’s newly established 

residence at the property, “there is absolutely no way to begin measuring the continued existence 

of probable cause.” Id. (citing United States v. Williams, 480 F.2d 1204, 1205 (6th Cir. 1973)). 

This renders the warrant invalid. 
No. 14-3526 United States v. Burney Page 12 

The majority suggests that because the timing of Burney’s arrival loosely coincided with 

an alleged imminent drug transaction orchestrated by Ross, it was more reasonable to search the 

Litchfield property. Burney moved into the Litchfield property in early-June 2012; the cocaine 

shipment that prompted the search was allegedly supposed to arrive in the Dayton area on June 

30, 2012, and was not linked to a particular location (and certainly not the Litchfield property).1

 

It cannot fairly be said that Burney’s appearance at the property, nearly a month before an 

alleged cocaine shipment was scheduled to arrive at an unknown location somewhere in the 

Dayton metro area, established a “fair probability” that Burney had taken up residence to assist 

in the drug distribution, especially when there is nothing tying him to drug distribution, Ross’s 

enterprise, or any other part of the conspiracy. 

Because at the time the warrant was obtained Burney was the sole occupant of the 

Litchfield property and the affidavit offered no reason to believe that criminal activity was still 

afoot at the home, I would find the warrant invalid. 

C. 

Burney must also show that the affidavit was so facially defective that no reasonable 

officer could have relied on it. Even if later held to be invalid, as a general matter, an officer 

may rely on a facially valid warrant, United States v. Leon, 468 U.S. 897, 920 (1984); but Leon’s 

good-faith exception does not apply if, inter alia, the officer’s reliance on the warrant was not in 

good faith or objectively reasonable, id. at 923. 

At the suppression hearing, Officer McCoy, who was both the affiant and on the team 

executing the warrant, testified that the confidential informants he had worked with “did not 

mention anything about Jeffrey Burney to [him]”; that he had not seen any activity at the house 

after October 2011 other than cars occasionally parked in the driveway; that he “didn’t think 

 1

In the proceedings below and in its brief on appeal, the Government makes clear that the search warrant 

was based on an impending shipment expected to arrive somewhere in Dayton on June 30, 2012: “Based on Ross’s 

tacit representations that he soon expected to receive a shipment of drugs [on June 30, 2012], police conducted 

surveillance at several stash houses – including the Litchfield residence.” According to the Government, “Given the 

timing of these events, a fair probability existed that Mr. Burney had arrived at a location Ross owned to assist in the 

distribution of the impending shipment of cocaine.” Thus, it is clear that the affidavit’s reference to a “large load of 

cocaine” that had been seized on June 24, 2012 was not the basis for obtaining the search warrant, and there is no 

other basis in the affidavit to support the majority’s conclusion that Burney’s continued presence at the Litchfield 

residence was premised on “Ross’s receiving a sizeable shipment of drugs.” The majority reads more into the 

affidavit than is warranted. 
No. 14-3526 United States v. Burney Page 13 

anybody was living” at the Litchfield property for a several month period; that he was aware 

Burney had claimed the Litchfield property as his home in early-June 2012, nearly a month 

before the search warrant was obtained; and that he had not observed Burney do anything illegal. 

Officer McCoy did not offer any basis to conclude that Burney was part of Ross’s enterprise, that 

criminal activity had occurred at the Litchfield property after Ross’s visit in October 2011, or 

that Burney was only using part of the home (meaning the remainder was still under Ross’s 

control). Accordingly, Officer McCoy could not reasonably believe that he had probable cause 

to search the Litchfield property; thus, he could not rely on the warrant’s facial validity and the 

Leon good-faith exception does not apply. 

III. 

 For these reasons, I would reverse the district court’s suppression ruling and vacate 

Burney’s guilty plea.