1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH EUGENE ALLEN,

Defendant-Appellant.

Appeal from the United St

for the Eastern District of Tenn

No. 96-00023—Curtis L. Co

Argued: Decemb

Decided and Filed: 

Before: MARTIN, Chief Judg

BOGGS, NORRIS, SUHRH

BATCHELDER, DAUGHTREY, 

and GILMAN, Circ

____________

COUNSE

ARGUED: David Ness, FSERVICES OF EASTERN Chattanooga, Tennessee, for AppeASSISTANT UNITED STATES Tennessee, for Appellee. ON BR
2 United States v. Allen No. 96-6313

FEDERAL DEFENDER SERVICES OF EASTERNTENNESSEE, INC., Chattanooga, Tennessee, Leah J.Prewitt, FEDERAL DEFENDER SERVICES, Knoxville,Tennessee, for Appellant. David P. Folmar, Jr., ASSISTANTUNITED STATES ATTORNEY, Knoxville, Tennessee, PaulW. Laymon, Jr., ASSISTANT UNITED STATESATTORNEY, Chattanooga, Tennessee, for Appellee.

BOGGS, J., delivered the opinion of the court, in which

MERRITT, RYAN, NORRIS, SUHRHEINRICH, SILER,BATCHELDER, and DAUGHTREY, JJ., joined. GILMAN,J. (pp. 13-16), delivered a separate opinion concurring in thejudgment, in which MARTIN, C. J., joined. CLAY, J.(pp. 17-33), delivered a separate dissenting opinion, in whichMOORE and COLE, JJ., joined.

_________________

OPINION

_________________

BOGGS, Circuit Judge. Kenneth Eugene Allen pled guilty

to an indictment charging him with possession of crackcocaine and an illegal firearm, after his motion to suppressevidence seized pursuant to a warrant issued on an allegedlyinsufficient affidavit was denied by the district court. Heappealed that denial. A panel of this court ruled that theaffidavit was insufficient to provide probable cause for thewarrant, and reversed his conviction. United States v. Allen,

168 F.3d 293 (6th Cir. 1999). We granted a rehearing enbanc, and now hold that an affidavit based upon personalobservation of criminal activity by a confidential informantwho has been named to the magistrate and who, as theaffidavit avers, has provided reliable information to the policein the past about criminal activity, though without furtherspecificity as to the type of such activity, can be sufficient fora magistrate to find probable cause to issue a warrant. Weaffirm the district court’s denial of Allen’s motion to suppressevidence, and Allen’s subsequent conviction.
No. 96-6313 U

I

On October 11, 1995, Detectiv

Chattanooga Police Department confidential informant (“CI”) tharesiding at 910 North Market Strcocaine. Red Dog was familiar to to Lomenick, as someone known tnamed Kenneth Allen. Based Lomenick sought and obtained a day. The affidavit read in full as f

I, Gary Lomenick, a duly sw

Officer, hereby apply for a search as follows:

1. I am a sworn Chattanooga 

Narcotics Division, where I hav15 years, and a commissioned SpHamilton County, Tennessee.

2. On the 11th day of Octobe

received information from an iand credible citizen of the countto be a responsible and credible known said informant for 5 yeargiven me information about icriminal activity in the past that hSaid informants’s name whom I to the Judge to whom this applicJohn Doe (Alias) Red Dog who and is in possession of the follow910 North Market Street, apartmcarport located in ChattanooTennessee, unlawfully has in premises legend and/or narcotic in violation of law made and pro

3. On the 11th day of Octob

advised me that said informant the said John Doe (Alias) Red D
4 United States v. Allen No. 96-6313

Market Street, apartment directly underneath carportwithin seventy-two hours prior to our conversation onOctober 11th, 1995 and while there saw Cocaine inpossession of the said John Doe (Alias) Red Dog[.]

WHEREFORE, as such officer acting in performance

of my duty in the premises I pray that the Court issue awarrant authorizing the search of the said John Doe(Alias) Red Dog and the premises located at 910 NorthMarket Street, apartment directly underneath the carport,for said legend and/or narcotic drugs including Cocaineand that such search be made either by day or by night.

Id. at 296-97.

Lomenick executed the warrant that day, with a team of

other officers. When they approached the building, Allen,who was on a porch, saw them and fled inside. The officersgave chase. As Allen ran past a closet, the police heard a loudthump, and shortly thereafter found a 9-mm pistol on the floorof the closet. Allen left a trail of crack cocaine rocks behindhim as he fled. When he was apprehended, more rocks ofcrack were found in his pockets, totaling 9.3 grams in all.

Allen was indicted on March 12, 1996. He was charged

with (1) possession of cocaine base with intent to distribute,in violation of 21 U.S.C. § 841; (2) possession of a firearm inconnection with a drug offense, in violation of 18 U.S.C.§ 924(c); and (3) possession of a firearm by a convicted felon,in violation of 18 U.S.C. § 922(g). In a motion filed on April18, 1996, he moved to suppress the evidence as illegallyseized, alleging that the indictment was based on aninsufficient affidavit, one that did not provide probable cause,since it did not claim or detail any expertise or previousreliability in narcotics contexts on the part of the CI. The

district court referred the motion to a magistrate judge for areport and recommendation, which was filed May 15, 1996,and which recommended the motion’s denial. Thisrecommendation was adopted by the district court in an orderfiled May 31, 1996. Allen pled guilty to counts (1) and (2)pursuant to a plea agreement entered on June 14, 1996, and

No. 96-6313 Uthe warrant was applied for and issued prUnited States v. Weaver, 99 F.3d 1372 (interpreted Leon and applied it to the faccertainly did not – and in fact could not good faith provision as articulated by the S81; see also supra note 1. Before Weavethe Supreme Court states otherwise, an obelief in a warrant that is based upon naffidavit. This is Leon’s command, not upon which Lomenick was acting at the as well as the premise upon which his ac529, 532 (5th Cir. 1986) (finding Leon’s third exception because an warrant based upon a bare bones afthe same bare bones affidavit to jubelief in the warrant).

Indeed, Leon was not intended 

Fourth Amendment’s warrant concurrence uses Leon exactly fofulfills Justice Stevens’ prophetpotential for abuse under Leon’s gothe . . . new rule, even when the application is probably insufficientsubmit it to a magistrate, on the chbait. No longer must they hesevidence in doubtful cases.” LeonJ., concurring in part and dissentin

Accordingly, for the above state

the district court’s order denyinsuppress the evidence because tsupport of the warrant was nothing the bare bones assertion of a reliabunsupported by any police corrobreliability – and therefore failed to 
32 United States v. Allen No. 96-6313

4Likewise, because I believe that there is nothing to indicate that

Lomenick held a good faith belief that the warrant was validly issuedbased upon the bare bones affidavit, I think it of little consequence thatfalls squarely within the third exception to Leon’s good faithprovision – that the affidavit was so lacking in indicia ofprobable cause as to render official belief in its existenceentirely unreasonable, or that the warrant application wassupported by nothing more than a bare bones affidavit – sothat any doubt about the illegality of the search is put to rest.Id. at 914-15, 923. If the concurrence was correct in itsapplication of Leon under these facts, then any officer couldobtain a warrant on the bare, generalized assertions of aninformant secure in the knowledge that even if the warrantwas held invalid for a lack of probable cause, the searchwould be saved by nothing more than the officer’s alleged“good faith.” Surely every officer seeking a warrantinherently makes such an allegation; however, Leon expresslystates that more is needed for the good faith exception toapply -- i.e., there must be evidence that the officer had anobjective good faith belief. See id.

It is precisely the lack of objective evidence to support a

finding of good faith necessary to save the search that takesthis case out of Leon’s reach. Although the concurrenceagrees that the warrant was not supported by probable causebecause “in the absence of greater specificity, the specialjudge who issued the warrant in this case could not have hada substantial basis for concluding that a search of Allen’sresidence would uncover any illegal drugs,” it goes on to holdthat Leon applies to save the illegal search because Lomenick

held a good faith belief that the warrant was valid, withoutany further support for this declaration. I believe that onecannot legally or logically agree that the affidavit was sowoefully lacking in any indicia of specificity that it failed toprovide the magistrate with a substantial basis to concludethat probable cause existed to allow the warrant to issue, andyet conclude that based upon the same woefully lackingaffidavit, Lomenick’s belief in the warrant’s existence wasreasonable.4 See, e.g., United States v. Barrington, 806 F.2d

No. 96-6313 Uwas sentenced to sixteen years anHe had reserved his right to appeal, ensued.

II

Our review of the sufficiency o

search warrant follows, as it must, tthe Supreme Court in Illinois v. GThere, the Court rejected the rigid lower courts attempted to implemdecisions, in favor of a “totalitapproach. Id. at 230-31 (abandontest developed in the light of Agui

(1964), and Spinelli v. United StaThe Court explained its deviation fthis way:

“[V]eracity,” “reliability” and “all highly relevant in determininreport. We do not agree, howeshould be understood as independent requirements to be case . . . . Rather, . . . they shoulas closely intertwined issues that the commonsense, practical qu“probable cause” to believe that is located in a particular place.

Id. at 230.

Gates also guides our deference 

determination of probable cause: “underlying affidavit is] . . . inappmagistrate[’s] decisions.” Id. a

emphasized in that case that it had the-fact scrutiny by courts of the should not take the form of de nosoundly rejected “[a] grudging reviewing courts toward warrantStates v. Ventresca, 380 U.S. 10
6 United States v. Allen No. 96-6313

reviewing courts are to accord the magistrate’s determination“great deference” Ibid. (quoting Spinelli, 393 U.S. at 419).The Court stressed that a hypertechnical critique of warrantswould only, in the end, encourage warrantless searches,undermining the very Fourth Amendment right such anapproach would seek to protect. Instead, it reaffirmed thetraditional standard:

Reflecting this preference for the warrant process, thetraditional standard for review of an issuing magistrate’sprobable cause determination has been that so long as themagistrate had a “substantial basis for . . . conclud[ing]”that a search would uncover evidence of wrongdoing, theFourth Amendment requires no more.

Ibid. (quoting Jones v. United States, 362 U.S. 257, 271(1960)). This circuit has long held that an issuingmagistrate’s discretion should only be reversed if it wasarbitrarily exercised. See United States v. Swihart, 554 F.2d264, 267-68 (6th Cir. 1977). 

The Allen panel examined for guidance three decisions of

this court, formulated in the light of Gates. These are:

United States v. Pelham, 801 F.2d 875 (1986); United Statesv. Finch, 998 F.2d 349 (1993); and United States v. Weaver,99 F.3d 1372 (1996). But as the dissent in Allen pointed out,these cases themselves, particularly the last, would appear toyield an inconsistent standard; the hope was accordinglyexpressed that this court, sitting en banc, would “clarify the

law in this circuit regarding the necessary requirements for theissuance of a search warrant based on uncorroboratedinformation from an informant.” 168 F.3d at 308 (Gilman, J.,concurring in part and dissenting in part).

Pelham held that an affidavit naming an informant, and

stating that the informant had personally observed marijuanabeing stored and sold on certain premises in the immediatepast, provided a “substantial basis” for believing that a searchwould uncover evidence of criminal activity there, andtherefore was sufficient for a magistrate to find that probablecause existed for a warrant to issue.

No. 96-6313 Uwas lacking in specificity and detaiby independent police investigatiothe particularized inquiry under a toas prescribed by Gates is not limite

the informant was anonymous.

III.

My opinion should not be mistak

rigid mandates of Aguilar and Spi

Supreme Court has made clear ththese decisions best lend themseanalysis when they are balanced atotality of the circumstances. GateCourt has also directed that the credof one factor can compensate for thto support a finding of probabl

However, with equal force the Cboth the veracity or reliability of thbasis for knowledge of the tip considered, see id. at 230-31; contrby the majority today allows for simply upon a generalized assertioof the informant. Such a result finsurely no support in the history oUnder the majority’s approach, warrant requirement is evisceratedmore than an inconsequential formwords.” See Silverthorne Lumber 

U.S. 385, 392 (1920). As a resultcannot rest easily or feel secure unreasonable searches and seizure

On a final note, I disagree with 

illegal search is saved by the gowarrant requirement as enunciated 468 U.S. 897 (1984). Like its sentiments” language, the concur“Lomenick ‘acted in objective goothe warrant” as set forth in Leon, 
30 United States v. Allen No. 96-6313

considered the totality of the circumstances to provide therequisite particularity for the warrant to issue. In the instantcase, however, the majority makes probable cause a faitaccompli once the informant’s tip is considered. It is notcoincidental or a mere slip of the pen that the majority citesno authority for its sweeping declaration.

However, support for my position is well-steeped not only

in Gates, but also in the Supreme Court’s decision inAlabama v. White, 496 U.S. 325, 330 (1990), where the Courtarticulated the standard for “reasonable suspicion.”Specifically, the Court found that although “reasonablesuspicion is a less demanding standard than probable cause[,]. . . like probable cause, [reasonable suspicion] is dependentupon both the content of information possessed by police andits degree of reliability. Both factors – quantity and quality– are considered in the ‘totality of the circumstances – thewhole picture.’” See id. (emphasis added) (quoting United

States v. Cortez, 449 U.S. 411, 417 (1981)); see also Floridav. J.L., ___ U.S. ___, No. 98-1993, 2000 WL 309131 (Mar.28, 2000). It logically follows that if reasonable suspicion, astandard less demanding than probable cause, cannot be foundwithout a consideration of both the quantity and quality of theinformation provided, surely probable cause cannot be foundwithout a consideration of both of these factors.

Furthermore, the majority makes a futile attempt to

distinguish those cases where the affidavits were found to beinsufficient to establish probable cause, solely on the basisthat the informant was anonymous or that the affidavit waslacking as to the informant’s reliability. See Ante (citingUnited States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir.1996); United States v. Leake, 998 F.2d 1359, 1365 (6th Cir

1993); United States v. Gibson, 928 F.2d 250, 253 (8th Cir.

1991); United States v. Mendonsa, 989 F.2d 366, 369 (9thCir. 1993)). In my opinion, these cases are indistinguishablefrom the case at hand and support my position, as well as theposition of the unanimous Allen panel, that the affidavit failed

to provide a substantial basis to believe that Defendant wasengaged in the criminal activity alleged because the affidavit

No. 96-6313 U

1A contrary approach, taken by the 

Supreme Court as an example of the folly “two-prong” test can lead. See Gates, 46v. Palanza, 55 Ill. App. 3d 1028, 371 (holding a warrant invalid because “[t]heinformant or for that matter any other pesubstance was cocaine and not some othsalt.”)).

Finch upheld the sufficiency o

probable cause, against challenges reported observation of cocainspeculative, since he couldn’t “kcocaine, and that the affidavit Rejecting these contentions, the cthat, given the informant’s stareliability in drug cases, the inforassumed to be familiar with cocainobservation,1 and that an affidavit 

a belief, as opposed to merely conclusory. 998 F.2d at 352. Suc

In Weaver, a panel of this court 

an affidavit used to obtain a warranGary Weaver for marijuana beliquantity for distribution. The CI, abased on hearsay, was furnished wgo to Weaver’s house and make a the police of his purchase of a halfWeaver, and of his belief (tobservation) that Weaver was groThe resulting affidavit indicated thaffidavit but named to the magireliable, having provided informathe past, and that he had personaWeaver’s house. (The affidavit ounce drug sale, for which the poliWeaver.) The officers who subseqfound a quarter-ounce of marijuannot prosecuted; nor was he prosec
8 United States v. Allen No. 96-6313

sale to the CI. But the police also found several rifles, andWeaver, a convicted felon, was charged with unlawfullypossessing them.

In finding the affidavit insufficient to establish probable

cause for the warrant to issue, reversing the district court, theWeaver panel noted that the stated purpose of the search wasto find evidence of suspected drug dealing; yet the affidavititself had contained no information about the purchase the CIwas supposed to have attempted, nor about the quantity ofmarijuana he observed, nor any other facts which wouldsupport a belief that drugs were being held in the house forsale. As this court observed of Weaver in another case, whatwas lacking in the Weaver affidavit was any indication ofprobable cause to suspect drug trafficking, the offense forwhich the warrant was expressly being sought. See UnitedStates v. Smith, 182 F.3d 473, 480 (6th Cir. 1999). But thatwas not in itself fatal, since an affidavit need only provideprobable cause to believe a search will uncover evidence ofsome wrongdoing, without need for further specificity. SeeUnited States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991)(holding “that knowledge of the precise crime committed isnot necessary to a finding of probable cause provided thatprobable cause exists showing that a crime was committed bythe defendants”). What was finally fatal in the Weaveraffidavit was its lack of probable cause to believe anymarijuana previously observed by the CI would be left to bediscovered by a search, for there was no mention of thequantity of drugs observed. Nor was there any attempt to notebehavior indicating ongoing sales.

As Weaver pointed out, in an effort to keep secret the

identity of a CI, the affidavit had been stripped of almost allparticularity, and been reduced to “bare bones,” with littleadded to the boilerplate language kept on file. In thatsituation, the panel held that other particularized facts, notidentifying the CI, but obtained, for example, through policesurveillance, should have been adduced to buttress the CI’sinformation, if preserving his identity prevented the affidavitfrom going into further detail. See Weaver, 99 F.3d at 1378.

No. 96-6313 Unot enough without any meaningfuId. at 55. In Judge Merritt’s op“reduced the castle to a hovel whthat marijuana is grown” or other 55. The same holds true in the casmajority’s holding today, the fact thto the officer and has provided reliadoes not a fortiori make the seconthe inquiry.

Indeed, nowhere in Gates is there 

sweeping holding. Although it is Gates was anonymous, the pronoregarding the relevant inquiry into received by an informant providdetermining probable cause were where the informant was anonymohave held that the balancing of knowledge under a totality of the cthose instances where the informanprovided reliable information in Supreme Court did no such thing. placed upon the instance where known for the unusual reliability otypes of criminal activities in informant’s “failure . . . to thoroughknowledge surely should not servfinding of probable cause based on majority’s holding that “[a]n affidobservation of criminal activity bwho has been named to the magistravers, has provided reliable informpast about criminal activity, though as to the type of such activity, magistrate to find probable causconvolutes the pronouncement in 

Supreme Court in Gates held that 

specificity from a known confidenprove an absolute bar to finding proindicia of reliability (the basis f
28 United States v. Allen No. 96-6313

requirement is not a factor to be assumed or a meretechnicality; it is an express constitutional command. See,e.g., Ybarra v. Illinois, 444 U.S. 85, 92 (1979); Lo-Ji Sales,

Inc. v. New York, 442 U.S. 319 (1979); Marron v. UnitedStates, 275 U.S. 192, 196 (1927). This affidavit lacked any

indicia of basis of knowledge, and the magistrate simplyratified the bare bones assertions made in the affidavit whenhe issued this warrant, contrary to the Supreme Court’scommand under the Fourth Amendment. See Gates, 462 U.S.

at 239. As stated, the fact that the informant was known andreliable is not enough, by itself, to provide a substantial basisto the issuing magistrate that Defendant was engaged in thecriminal activity alleged. See, e.g., United States v. McNatt,931 F.2d 251, 253 (4th Cir. 1991) (finding that theinformation provided by the known, reliable informant wassufficient to establish probable cause under Gates because theinformation was specific in nature and corroborated by thepolice).

In a case from this circuit where the converse was true –

i.e., the affidavit while being rich in detail was from ananonymous tip in which minimal corroborative efforts weretaken by the police – one panel member disagreed with themajority that the affidavit supported a finding of probablecause. See United States v. Sonagere, 30 F.3d 51, 55 (6th Cir.1994) (Merritt, J., dissenting). Judge Merritt noted that “ifdetail is all that is needed to support a search warrant, theFourth Amendment will no longer be any constraint or checkon the issuance of search warrants. Any ‘detailed’information, uncorroborated by the police, from virtually anyunknown, unreliable source, would support issuance of asearch warrant.” See id. Judge Merritt disagreed with themajority that the specific nature of the tip was sufficient tocompensate for the fact that the information source had neverbeen used before and that the affidavit failed to provide anyindication of the reliability of the source; however, he foundit “[e]ven more troubling [that] the officers did nothing tocorroborate any of the information or develop independentinformation that might supplement that of the informationsource.” Id. at 54. The fact that the tip was rich in detail was

No. 96-6313 U

Weaver’s holding that the unco

was defective is limited to the facts 

not support the general propositiomust always be independently corran affidavit must in every case sexpertise in identifying the partiactivity alleged, propositions we follow.

III

In applying Gates to the circum

panel referred to the “totality of the of that decision as a “test,” and thtwo-factor analysis, indicating that gain significant weight when supdetailed description gleaned from f(2) independent investigative corroat 298. No doubt this is so, but the factors are requirements, both of wcomply with the Fourth Amunreasonable searches and seizureIV. As the Court observed in Gate

unfortunate tendency to develop a to draw more attention to their indito the totality of the circumstance

230 n.5 (criticising “[t]he entirely the Spinelli prongs have assumhappened here.

The majority of the panel that h

court criticized the affidavit on fospecific as to the type or amount oresidence to be searched. Secoinformant’s familiarity with the appprovided. Third, especially in objection, independent police cFourth, the text was largely supposedly encouraging the laccomplained of. See Allen, 168 F.3
10 United States v. Allen No. 96-6313

These complaints do not call for individual rebuttal. The

affidavit is judged on the adequacy of what it does contain,not on what it lacks, or on what a critic might say should havebeen added. It is the totality of the circumstances thatpersuade us that the affidavit in the instant case was, in fact,not merely “conclusory and ‘bare bones’” in nature butsufficient. The panel wrote: “the affidavit failed to provideany facts about the informant’s knowledge or familiarity withthe appearance of cocaine. Instead, the affidavit merely statedthat the tips of ‘criminal activity’ provided by the informantin the past have ‘proven to be reliable.’” Ibid. But in fact, the

affidavit states under oath that the affiant, DetectiveLomenick, has known the CI for five years, that Lomenick hasbeen assigned to the Narcotics Division for fifteen years, andthat “said informant has given me [Lomenick] informationabout individuals involved in criminal activity in the past thathas proven to be reliable.” Id. at 296. It is obvious on theface of the affidavit that such information in the past mostlikely concerned narcotics. Affidavits are not required to usemagic words, nor does what is obvious in context need to bespelled out; if a CI saw guns, he is not required to explainhow he knew what a gun looks like. Nor is an affidavitrequired to present proof that would without questionwithstand rigorous cross-examination. Clearly, this CI’s pastexperience with the drug trade was reflected anew in thecircumstances of this case. Taken as a whole, the affidavitprovided sufficient facts from which the magistrate coulddraw an independent conclusion as to the probability(certainty is not required) of what it alleged a search would

disclose. There was nothing arbitrary about a conclusion that,in this case, probable cause existed.

Since Gates, affidavits have been found insufficient for

various deficiencies, none of them exhibited here. Forexample, a merely conclusory statement of the affiant’s beliefin an informant’s past credibility, unsupported by furtherdetail, failed to pass muster in the Seventh Circuit. See

United States v. Reddrick, 90 F.3d 1276, 1280 (7th Cir. 1996).That result complies with Gates’s requirement that theinformation presented to the magistrate in the affidavit be

No. 96-6313 Udrugs without compromising thconviction. Here, any indicia of csuch as minimal surveillance of determine a pattern of drug activitydetails from the informant would the magistrate a more particulariprobable cause. However, Lomeprovide a statement that he had derelation to Lomenick’s duties as a this informant had provided infonarcotics convictions in the past.

The majority engages in specula

to supply the requisite indicia of when it assumes, without more, thathe informant involved narcotics. of the affidavit that such informatconcerned narcotics.”) The majoritthe fact that Lomenick has workefor fifteen years and has known the five years – not because of any infaffidavit itself. It is well knowassociated with illegal narcotics alcriminality such as prostitution, gburglary, and various other illegoperations and use. As such, concerning the type of informaprovided in the past, it is impossiblof the affidavit” whether Lomenicinformant directly involved illegal whether his dealings with this intypes of criminal activity.

Gates commands a reviewing c

the evidence presented before it; Gand indeed could not legally coAmendment -- that a reviewindeficiencies in the affidavit by econjecture. See U.S.

CONST. amen

230-31. Contrary to the majority’
26 United States v. Allen No. 96-6313

3The majority seems to imply that the Allen panel argued that police

investigation and corroboration are necessary in every case in order for awarrant to issue; however, the Allen panel made no such argument and Imake no such averment here. Rather, as stated in Gates, policecorroboration becomes valuable and particularly significant when the tipprovided by the informant lacks detail and specificity sufficient to complywith the particularity requirement of the Fourth Amendment. See Gates,

462 U.S. at 243-44. In fact, the Allen panel began its analysis by stating

that “[t]his case asks us to decide whether the affidavit presented toSpecial Judge McColpin set forth sufficient particularized facts for thejudge to find a substantial basis for probable cause to issue the searchwarrant . . . .” See United States v. Allen, 168 F.3d at 297. It is the lackof specificity of the informant’s tip coupled with the lack of anycorroboration by the police that should have been fatal to the affidavithere, as the Allen panel found.

had provided reliable information regarding narcotics in thepast; it failed to provide any information as to where thecocaine was being stored or sold; and it failed to indicate theamount of cocaine that was allegedly seen or any basis as towhy the informant had reason to believe that the substancewhich he allegedly observed was cocaine. As such, theaffidavit failed to provide a substantial basis that cocainewould likely be found in Defendant’s possession on thepremises some seventy-two hours later. See United States v.McKinney, 143 F.3d 325, 328 (7th Cir. 1998) (noting that “[a]search warrant should not issue except on probable cause thatevidence of a crime is currently located at a particular place”(emphasis added)).

Moreover, the affidavit failed to indicate any corroborating

efforts by the police which, as stated by the Allen panel, mayhave changed the outcome here.3 The majority’s concern fordetectives conducting surveillance in crack-riddenneighborhoods or for investigative measures addingadditional time for the “highly mobile” drug operations torelocate, are unfounded and completely unsupported by therecord. Drug interdiction officers such as Lomenick aretrained to carry out such tasks as surveying suspectedresidences in crack-ridden neighborhoods, and determiningthe pattern of activity of those suspected of dealing in illegal

No. 96-6313 Usufficient to allow “that official” independently, and not merely to conclusion. See Gates, 462 U.S. a

This court has upheld a distric

probable cause existed when a waan affidavit whose information camsparse in detail and wholly uncorroUnited States v. Leake, 998 F.2d 1

The Eighth Circuit also found no pan affidavit also based on an anonyparticulars, where police investiinnocent details and found nothinStates v. Gibson, 928 F.2d 250, 2Ninth Circuit invalidated a warcircumstances. See United States 

366, 369 (9th Cir. 1993). These csubstantial independent police corabsence of any indicia of the infohad turned on precisely such a queneed for corroboration in those cirat 244.

That is not a factor here. The C

personally known to the detective and who revealed the CI’s name to reliability in criminal matters in involved had extended over a information alleged was of direccriminal activity. Corroboration icase. A requirement that informainvariably have to be personally police investigation would aid lawbto conduct surveillance in crawithout themselves being detected Moreover, the additional time thumandating an independent police CI’s contact would provide a fudealers’ already highly mobile, hidecline to handicap the state in tha
12 United States v. Allen No. 96-6313

Nevertheless, a caveat is in order. Police should be aware

that failure to corroborate all that can easily be corroboratedincurs two dangers. The first is to risk that a warrant will notissue where it should. The second is to risk the loss, at trialor on appeal, of what has been gained with effort in the field.But while better investigative work is preferable to merelyadequate investigation, it is not the constitutional measure ofprobable cause.

At bottom, we return to the basics of the Fourth

Amendment: is there “probable cause” to believe thatevidence of a crime will be found in the search? We hold thatwhere a known person, named to the magistrate, to whosereliability an officer attests with some detail, states that he hasseen a particular crime and particular evidence, in the recentpast, a neutral and detached magistrate may believe that

evidence of a crime will be found. There is, of course, noguarantee that the evidence will still be there, but themagistrate may determine that such a probability exists. Thisholding requires evidence sufficient to provide a basis for thatjudgment. It cannot properly be characterized, in the dissent’sterms, as “driv[ing] a stake through the very heart of theFourth Amendment” or “mak[ing] a mockery of the FourthAmendment’s warrant requirement.” Such a descriptioncannot be used “in the extreme acceptance of th[os]e word[s]without some risk of terminological inexactitude,” to employChurchill’s phrase. See 1 Winston S. Churchill, HisComplete Speeches 1897-1963 562 (Robert Rhodes James,ed.).

IV

For the foregoing reasons the judgment of the district court

is AFFIRMED.

No. 96-6313 U

Said differently, the affidavits 

Nathanson were insufficient to allto determine probable cause becinformation; the magistrate’s deterhave improperly been “a mere conclusions of others.” Gates, 462 information may have been attestelacked any indicia of specificity or Aguilar Court found that had the pcorroborating the “reliable” infodifferent case” would have been prU.S. at 109 n.1.

The value of corroborative 

emphasized in Gates. Specifica

factors significant in allowing a whether an informant’s tip proviconstitute probable cause. First, description of alleged wrongdointhat the event was observed informant’s] tip to greater weight tcase.” Gates, 462 U.S. at 234. Sethe tip is corroborated by thinvestigation is significant. Id. at 

Despite these clear directives fr

reliability as well as the basis of knomust be considered in light of the toto insure that a warrant does not bones conclusions of others, the mwarrant may issue based upon reliable informant, regardless of independent corroboration. The averred that 1) the affiant had knoyears and that the informant had ppast that had proven to be reliablname was provided to the magistrhad seen Defendant in possession home approximately seventy-two haffiant. The affidavit lacked any in
24 United States v. Allen No. 96-6313

the officer attest “with some detail” as to the informant’s reliability.Instead, the magistrate was simply provided with a general assertion madeby an informant, whom Lomenick had known for five years and who hadprovided information regarding “criminal activity” in the past, thatDefendant was in possession of “legend and/ or narcotic drugs includingCocaine” on his premises. As discussed more fully infra in this dissent,

this generalized assertion fails to pass constitutional muster under theFourth Amendment – and indeed fails even under the majority’s holdingas expressed in Section III – because it lacks specificity and particularityas to the quantity or location of the illegal drugs, or as to why thisinformant had a basis of knowledge for making his assertion, especiallywhere Lomenick did nothing to corroborate the tip. Furthermore, I find itof no consequence that a magistrate is provided with the name of theinformant, particularly in this case where there is nothing in the record tosuggest that the informant’s name was of any meaning to the magistrate --i.e., the name had no bearing in establishing a substantial basis to believethat criminal activity was afoot (probable cause). To borrow fromShakespeare, “What’s in a name! that which we call [an informant] Byany other name would smell as [unreliable.]” See 

WILLIAM 

SHAKESPEARE

THE 

COMPLETE 

WORKS,ROMEO AND JULIET act 2, sc. 1, 254(Dorset Press

1988).

In fact, the Gates Court provided examples of cases which

“illustrate[d] the limits beyond which a magistrate may notventure in issuing a warrant.” 462 U.S. at 239. Included inthese examples were those instances when the warrant wasbased upon a “wholly conclusory statement” which providedthe magistrate with no basis at all for making an informedjudgment. One such example was in the case of Aguilar

where an officer’s statement that “[a]ffiants have receivedreliable information from a credible person and do believethat heroin” is stored in the home, was found to beinsufficient to provide the magistrate with probable cause toissue the warrant. See Id. (quoting Aguilar, 378 U.S. at 109).Likewise, in Nathanson v. United States, the Supreme Courtfound that the affiant’s sworn statement that “‘he has cause tosuspect and does believe that’ liquor illegally brought into theUnited States is located on certain premises” was notsufficient because it was merely a wholly conclusorystatement which failed to provide the magistrate with asubstantial basis upon which to issue the warrant. See 462U.S. at 239 (quoting Nathanson, 290 U.S. 41, 44 (1933)).

No. 96-6313 U

______________

CONCURRE

______________

RONALD LEE GILMAN, Circu

judgment. Although I agree witconclusion that the district courAllen’s motion to suppress, I wrireasoning is not based on the validirather on the good faith exception as established by United States v. L

I agree with the dissent’s positi

case was deficient, but do not share sentiments. The key language osimply stated that “[defendant] . possession on said premises legeincluding Cocaine” and that the inCocaine in possession of the said information was provided as to quBased on the information providedobserved nothing more than Allerocks of crack cocaine, which consumed. Thus, in the absence special judge who issued the warrhave had a substantial basis for cAllen’s residence would uncoveIllinois v. Gates, 462 U.S. 213, 23“totality of the circumstances” test in determining probable cause for 

I therefore agree with the disse

was an absence of probable cause the search warrant in question. SeDaily, 436 U.S. 547, 556-57 napproval the following statement: issued only by a neutral and detachshowing of probable cause—that believe—that criminally related ob
14 United States v. Allen No. 96-6313

the warrant authorizes to be searched, at the time when thesearch is authorized to be conducted.”) (emphasis added);United States v. McKinney, 143 F.3d 325, 328 (7th Cir. 1998)(“A search warrant should not issue except on probable causethat evidence of a crime is currently located at a particularplace.”); United States v. Finch, 998 F.2d 349, 352 (6th Cir.

1993) (“Probable cause for the issuance of a search warrant isdefined in terms of whether the affidavit sets out facts andcircumstances which indicate a fair probability that evidenceof a crime will be located on the premises of the proposedsearch.”) (citation and internal quotation marks omitted)(emphasis added).

Despite these deficiencies, however, I believe that

Detective Lomenick “acted in objective good faith” when herelied on the warrant. Leon, 468 U.S. at 908. In Leon, the

Supreme Court held that the exclusionary rule does not “barthe admission of evidence seized in reasonable, good-faithreliance on a search warrant that is subsequently held to bedefective.” Id. at 905. The proper test of an officer’s goodfaith is “whether a reasonably well trained officer would haveknown that the search was illegal despite the magistrate’sauthorization.” Id. at 922 n.23. Here, Lomenick presented a

neutral judicial officer with an affidavit stating that he hadinformation about the presence of illegal drugs at a specificlocation from a reliable informant that was based on recent,personal observation.

After examining the warrant under the microscope of close

legal analysis, I agree with the dissent’s conclusion that theunderlying affidavit lacked sufficient specificity to passconstitutional muster. I cannot further conclude, however,that the affidavit at issue was “so lacking in indicia ofprobable cause as to render official belief in its existenceentirely unreasonable.” Leon, 468 U.S. at 923 (citations and

internal quotation marks omitted); see also United States v.Cardall, 773 F.2d 1128, 1133 (10th Cir. 1985) (“Courtscannot make the good faith of an officer turn upon whetherhis reliance on a warrant was misplaced. It is only when the

No. 96-6313 U

2The majority’s holding as articulated 

III of the opinion does not change my pdichotomy between the holding set forparagraph of the opinion, and its holding dissent – set forth in Section III. Which somewhat from its holding as set forth at apparent attempt to compensate for iparticularity requirement of the Fourth A

Juxtaposing the phraseology of the ho

point. In the first paragraph of the opinaffidavit based upon personal observaconfidential informant who has been namthe affidavit avers, has provided reliable past about criminal activity, though withtype of such activity, can be sufficient focause to issue a warrant.” In the last majority attempts to strengthen the probabholding, when it states that “[w]e hold thato the magistrate, to whose reliability an states that he has seen a particular crime recent past, a neutral and detached magisof a crime will be found.” Simply by add“detail” to its holding as couched in Sectthe majority’s reasoning and result constitutional under the Fourth Amendmrhetoric is taken into account, the majoritend of Section III than it was at the outse

In fact, the majority’s holding as artic

to undermine its conclusion that the warraprobable cause. The magistrate in this caof knowledge of “a particular crime” and basis of knowledge of the tip. Adeficiency in one of the prongs mstrength of the other prong, it is eq“reliability” as well as the “basshould nonetheless be considered238-39. The majority’s relaxed stacause is not supported by Gates anSupreme Court’s mandate that “conscientiously review the sufficiewarrants are issued” in order to innot abdicate his duty by issuing warbones” conclusions of others.2 Id
22 United States v. Allen No. 96-6313

balanced assessment of the relative weights of all thevarious indicia of reliability (and unreliability) attendingan informant’s tip, the “two-pronged test” hasencouraged an excessively technical dissection ofinformants’ tips with undue attention being focused onisolated issues that cannot sensibly be divorced from theother facts presented to the magistrate.

Id. at 233-34 (citations and footnotes omitted; emphasisadded).

In short, the Court in Gates abandoned the rigid “twoprong” test and in its place, reaffirmed the traditional totality

of the circumstances approach, holding that the elements ofthe two prong test are relevant factors to be balanced in lightof all of the information provided:

The task of the reviewing magistrate is simply to make apractical, common-sense decision whether, given all thecircumstances set forth in the affidavit before him,including the “veracity” and “basis of knowledge” ofpersons supplying hearsay information, there is a fairprobability that contraband or evidence of a crime will befound in a particular place. And the duty of a reviewingcourt is simply to ensure that the magistrate had a“substantial basis for . . . conclud[ing]” that probablecause existed.

Id. at 238-39 (citations omitted).

II.

The flaw in the majority’s holding in the case at hand lies

in its failure to comply with Gates’ command to consider the

totality of the circumstances; instead, the majority relaxes theprobable cause requirement to a degree unsupported by Gates,and allows for a warrant to issue based simply upon theaverment that the informant “has provided reliableinformation in the past about criminal activity . . . without thefurther specificity as to the type of such activity . . . .” Inother words, the majority’s holding fails to account for the

No. 96-6313 Ureliance was wholly unwarranted (emphasis added).

The dissent contends that, were 

“any officer could obtain a warranassertions of an informant secure iif the warrant was held invalid for the search would be saved by nothalleged ‘good faith.’” I find this merit. As the Supreme Court istandard of reasonableness . . . is an n.20 (emphasis added). Thus, the the good faith exception applies in depend on the subjective beliefs of United States v. Maggitt, 778 F.2d 1985) (“Because the Leon standard of the agent who prepared the affidrelevant.”); United States v. Gant, Cir. 1985) (“[T]he determination odepend on an examination of the court.”).

Furthermore, the warrant was ap

to this court’s decision in United 1372 (6th Cir. 1998), in which a pthe search warrant in question because the officer’s affidavit did nfactual circumstances to support thregarding distribution, nor the det. . . quantities of marijuana were pwith the intention of unlawftransportation,’ or even that mapremises when the warrant was Because the Weaver decision—witunderlying affidavit must incluconcerning the quantity, storindrugs—was handed down after the issued the warrant, it was all the officer such as Lomenick to have faith belief that the information sup
16 United States v. Allen No. 96-6313

sufficient under the authority of United States v. Pelham, 801

F.2d 875 (6th Cir. 1986), and United States v. Finch, 998 F.2d349 (6th Cir. 1993). 

The dissent characterizes this fact as having “little

consequence” because “Weaver simply interpreted Leon and

applied it to the facts before it; Weaver certainly did not—andin fact could not—change the exceptions to the good faithprovision as articulated by the Supreme Court.” Thesearguments, however, do not diminish my point that an officershould not be expected to predict that warrant practicessimilar to what the courts have found acceptable in the pastwill subsequently fail to withstand the analysis of evolvinglegal decisions.

Although not dispositive, it is also telling that the question

of whether the warrant in this case was defective hasgenerated significant debate among the judges of this court.See Leon, 468 U.S. at 926 (“The affidavit . . . providedevidence sufficient to create disagreement among thoughtfuland competent judges as to the existence of probable cause.”);United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990)(noting that the Supreme Court’s observation in Leon—thatreasonable jurists had disagreed on the issue—was “intendedto bolster the Court’s holding that the officer had actedreasonably under the circumstances”). 

In sum, I conclude that even though the affidavit in this

case did not provide enough detail to establish probablecause, it was sufficient to fit within the “good faith” exceptionof Leon. The dissent apparently believes that Lomenick’sactions amount to “flagrant misconduct” (United States v.Hove, 848 F.2d 137, 141 (9th Cir. 1988)) and therefore the“extreme sanction” (Leon, 468 U.S. at 916, 926) of exclusionshould be imposed. Because I disagree, I would affirm thedenial of Allen’s motion to suppress, albeit for reasons otherthan those set forth by the majority.

No. 96-6313 U

“reliability” and “basis of know–] independent status. Instead, thas relevant considerations in the analysis that traditionally has determinations: a deficiency in ofor, in determining the overall strong showing as to the other, oof reliability.

Id. at 232-33 (citations, footnotemarks omitted).

By way of example, the Cou

balancing approach not only of the “reliability” and “basis of knowledcircumstances in general. Gates, so, the Court expressly provided what the majority holds today as bregarding the informant and the inprovided, as well as other scenarioshould be assessed under the totaldetermine whether the informatprobable cause.

If, for example, a particular inf

unusual reliability of his prediccriminal activities in a locaparticular case, to thoroughly sknowledge surely should not sera finding of probable cause bas

if an unquestionably honest citiza report of criminal activity – wsubject him to criminal liability – scrutiny of the basis of knConversely, even if we entertainformant’s motives, his explicit of alleged wrongdoing, along wevent was observed first-hand, eweight than might otherwise btotality of circumstances anal
20 United States v. Allen No. 96-6313

knowledge” – are all highly relevant. However, the Courtwent on to opine that these elements should not “beunderstood as entirely separate and independent requirementsto be rigidly exacted in every case [as they had been appliedby lower courts]. Rather, . . . they should be understoodsimply as closely intertwined issues that may usefullyilluminate the commonsense, practical question whether thereis ‘probable cause’ to believe that contraband or evidence islocated in a certain place.” See Gates, 462 U.S. at 230.

The Court found this “totality of the circumstances

approach . . . far more consistent with prior treatment ofprobable cause than . . . any rigid demand that specific ‘tests’be satisfied by every informant’s tip.” Gates, 462 U.S. 230-

31. Moreover, the Court reasoned that the less rigid approachwas in concert with the dynamic nature of probable cause asbeing a “‘practical, nontechnical conception.’” Id. at 231(quoting Brinegar v. United States, 338 U.S. 160, 176

(1949)). The Court embraced its earlier teachings regardingprobable cause as dealing in “probabilities.” Id. These

probabilities “‘are not technical; they are the factual andpractical considerations of everyday life on which reasonableand prudent men, not legal technicians, act.’” Id. (quotingBrinegar, 338 U.S. at 175). The Court further opined asfollows:

[P]robable cause is a fluid concept – turning on the

assessment of probabilities in particular factual contexts– not readily, or even usefully, reduced to a neat set oflegal rules. Informant’s tips doubtless come in manyshapes and sizes from many different types ofpersons. . . . Informants’ tips, like all other clues andevidence coming to a policeman on the scene may varygreatly in their value and reliability. Rigid legal rules areill-suited to an area of such diversity. One simple rulewill not cover every situation.

* * * 

There are persuasive arguments against according [theelements of the “two-pronged test” – “veracity” or

No. 96-6313 U

___________

DISSEN

___________

CLAY, Circuit Judge, dissentin

the majority’s holding relaxes thwarrant may issue to a point Amendment jurisprudence, and inletter and spirit of the Fourth Amendissent. As a result of today’s holdinformant who has provided reliablin the past is sufficient to constituwarrant to issue, irrespective of thof the information provided and withe police. This result strips awafforded to all citizens -- both innobe free from legally unsupportablsearches and seizures, and is at varprobable cause as envisioned Amendment.

Although I disagree with the ma

the district court’s order denyinsuppress the evidence, I am most treffects of the majority’s opinion wthe very heart of the Fourth Amendthat while I address the matter attention to the devastating impacFourth Amendment jurisprudence 

I.

The Fourth Amendment provide

The right of the people to be 

houses, papers, and effects againand seizures, shall not be violateissue, but upon probable causeaffirmation, and particularly desearched, and the persons or thi
18 United States v. Allen No. 96-6313

U.S.

CONST. amend. IV. It was argued when the Constitution

and Bill of Rights were being adopted that a provisionproviding against searches and seizures unsupported byevidence of wrongdoing was needed to prevent generalwarrants from issuing:

[G]eneral warrants, by which an officer may searchsuspected places, without evidence of the commission ofa fact, or seize any person without evidence of his crime,ought to be prohibited. As these are admitted, any manmay be seized, any property may be taken, in the mostarbitrary manner, without evidence or reason. Everything most sacred may be searched and ransacked by thestrong hand of power.

See 3 JONATHAN 

ELLIOT, THE 

DEBATES OF THE 

SEVERAL

STATE 

CONVENTIONS, ON THE 

ADOPTION OF THE 

FEDERAL

CONSTITUTION 588 (2d ed. J.B. Lippincott Comp. 1831)(comments of Patrick Henry). Hence, the requirement that awarrant be supported by specific evidence of criminal activitybefore being issued is deeply rooted in our history. Moreover,the Framers of the Bill of Rights carefully sought to define theprecise conditions under which government agents couldsearch private property so that citizens would not be at themercy of those agents for the protection of their privacy. Assuch, the express language of the Fourth Amendment must beheeded, and the particularized nature of the oath oraffirmation made in support of the warrant as required by theAmendment cannot be considered a mere technicality.

The quantum of evidence or information required to

support the issuance of a warrant – i.e., the requirements ofthe particularized inquiry to establish probable cause – haslong been debated in the courts, especially when the warrantis based upon hearsay information from an informant. Thejurisprudential evolution concerning the requirements for theissuance of warrants reached its peak in the seminal case ofIllinois v. Gates, 462 U.S. 213 (1983). The cases from ourcircuit applying the standards set forth in Gates span a wide

range of holdings which the majority claims has given rise to

No. 96-6313 U

1Cases from this circuit may inde

nonetheless. The Allen panel considere

Pelham, 801 F.2d 875 (1986), United S

(1993), and United States v. Weaver, 99 

However, the Allen panel also found thabetween these decisions were due to the nfact that various factors must be weighed whether sufficient evidence was presenprovide a substantial basis for determininafoot. See United States v. Allen, 168 F.3en banc granted, judgment vacated by U1002 (6th Cir. 1999). It is this very weithat the majority opinion now finds unnCourt precedent. As a result, the majoritylaw in this circuit” as it claims to do in resby the Allen panel’s dissent; instead, the m

law as dictated by the Supreme Court. 

confusion as to the appropriate sprobable cause as well as their proI disagree that the various holdingto the proper standards or their ainconsistencies in cases from this confusion as to the standards or thcause analysis, but rather a functprobable cause.1 See id. at 231. W

the Gates decision itself in this dissbenchmark for probable cause analthe majority opinion is at odds wmandates regarding a reviewing whether a warrant is supported therefore sets a dangerous and uncircuit.

In Gates, the Supreme Court exa

in Aguilar v. Texas, 378 U.S. 10

United States, 393 U.S. 410 (196interpretation that had been gireviewing courts. Specifically, the the elements of the “two pronged decisions regarding the value that informant’s tip – “veracity” or “