1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0120p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

D AVID D EWAYNE C HURCH , J R ., Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-5362

Appeal from the United St ates District Court for the Middle District of Tennessee at Nashville. No. 3:13-cr-00067—Todd J. Campbell, Chief District Judge. Argued: December 10, 2015 Decided and Filed: May 17, 2016 Before: GRIFFIN and KETHLEDGE, Circ uit Judges; CLELAND, District Judge. *

_________________ COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBL IC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Philip H. We hby, UNITED STATES A TTORNEY’S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Philip H. Wehby, UNITED STATES ATTORNEY’S OFFICE, Nas hville, Tennessee, for Appellee. KETHLEDGE, J., delivered the opinion of the court in which CLELAND, D.J., joined, and GRIFFIN, J., joined in the result. GRIFFI N, J. (pp. 8–18), deliver ed a separate opinion concurring in the judgment.

* The Honorable Robert H. Cleland, United States Distri ct Judge for the Eastern District of Michigan, sitting by designation. 

### >No. 15-5362 United States v. Church Page 2

_________________ OPINION

_________________ KETHLEDGE, Circuit Judge. Search warrants target places, not people. David Church opened his home to police and showed them that he had marijuana inside. Police received a warrant to search the home for drugs. Chur ch was later charged with drug distribution, and moved to suppress evidence gathered in that search on the theory that police had cause to suspect Church only of using drugs, not selling them. Th e district court denied Church’s motion, and Church pled guilty. We affirm.

I. In August 2012 Nashville police detectives Jeff Moseley and Daniel Bowling went to David Church’s home to serve him with a warrant for violating his probation. Church arrived at his home shortly thereafter, carry ing a bag of fast food. After Moseley and Bowling established Church’s identity, they placed Church under arrest in his driveway. Church asked that he be allowed into the house to eat his food and call his girlfriend; Moseley and Bowling obliged, and accompanied Church inside with his consent. The detectives told Church that they smelled burnt marijuana in the house, and Church admitted th at he had recently smoked marijuana. He proceeded to lead Bowling upstairs to show Bow ling a marijuana blunt. Church then called his girlfriend, who came to the house and told police that, despite her efforts to get him to stop, Church regularly smoked marijuana at the house. Moseley left the house to prepare a search-w arrant affidavit while Bowling stayed with Church and Church’s girlfriend. In his affidavit, Moseley recount ed the detectives ’ visit to the house and their conversations with Church and his girlfriend. He swore th at there was “probable and reasonable cause to believe that [Church’s house] is/are now in po ssession of certain evidence of a crime, to wit: violations of one or more of the following state laws as set forth in TCA Sections 39-12-204 [RICO], 39-14-903 [M oney Laundering], and 39-17-417 [Tennessee Drug Control Act of 1989],” and he requested a warrant to search Church’s house for “controlled substances, [and] controlled substances parapherna lia,” among other things. A state magistrateNo. 15-5362 United States v. Church Page 3

issued a search warrant based on Moseley’s affi davit. The police executed the warrant that afternoon. In an upstairs closet, they fo und 4.8 grams of marijuana and 8 dilaudid (hydromorphone) pills, along with a safe. The poli ce asked Church for the code to the safe. Church refused to provide it, so police used a prying ram to break in. The safe contained 800 dilaudid pills, a Smith & Wesson .40-caliber handgun, and a box of ammunition. Church thereafter sought to suppress the evid ence collected by the government during the search. The district court denied his motion. C hurch later pled guilty to possession with intent to distribute hydromorphone and to being a felon in possession of a firearm. The district court sentenced Church to 170 months’ imprisonment. He appeals the district court’s denial of his motion to suppress.

II.

A. Church argues that the warrant to search his home was defective because it was issued pursuant to an affidavit that esta blished probable cause for the wrong crime. He contends that “a search warrant is plainly defective if it, ba sed on a showing of probable cause of crime X, authorizes a search for proof of crime Y.” Chur ch Br. at 2. Specifica lly, he argues that the search warrant issued here authorized a search for evidence of drug possession with intent to distribute, whereas Moseley’s affidavit showed probable cause to search only for evidence of simple possession. We review deferentially the ma gistrate’s decision to issue a search warrant, and may second-guess that de cision only where the magistra te exercised his authority “arbitrarily.” United States v. Brown , 732 F.3d 569, 573 (6th Cir. 2013). The Fourth Amendment guarantees that “no Warrants shall i ssue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. C onst. amend. IV. The amendment’s text makes clear that “[s]earch warrants are not directed at person s; they authorize the se arch of ‘places’ and the seizure of ‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” Zurcher v. Stanford Daily , 436 U.S. 547, 555 (1978). It follows that the “critical element in a reasonable search is not th at the owner of the property isNo. 15-5362 United States v. Church Page 4

suspected of crime but that there is reasonable ca use to believe that the specific ‘things’ to be searched for and seized are located on th e property to which entry is sought.” Id. at 556. Thus, to establish probable cause for a searc h, an affidavit must show a likelihood of two things: first, that the items sought are “seizable by virtue of being connected with criminal activity”; and second, “that the items will be found in the place to be searched.” Id. at 556 n.6. The nexus between “criminal activity” and the item to be seized is “automatic[]” when the object of the search is “contraband.” Warden, Md. Penitentiary v. Hayden , 387 U.S. 294, 307 (1967); see also Black’s Law Dictionary 365 (9th ed. 2009) (defining “contraband” as “[g]oods that are unlawful to import, export, produce, or possess”). Marijuana is contraband because its possession and production is prohibited under federal law and the criminal laws of most states, including Tennessee’s. See 21 U.S.C. §§ 841, 844; Tenn. Code Ann. §§ 39-17-417, 39-17-418. A police request to search for illegal drugs therefore needs to satisfy only the second showing for a valid warrant: “a fair probability ” that the drugs “will be found in a particular place.” See Illinois v. Gates , 462 U.S. 213, 238 (1983). That standard is met where, for example, the affiant swears that he has seen ma rijuana seeds and smelled marijuana smoke inside the house to be searched. See United States v. Brooks , 594 F.3d 488, 494 (6th Cir. 2010); see also United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004). Moseley’s affidavit established that detec tives had entered Church’s house and smelled marijuana, that Church showed the detectives a marijuana blunt upstairs, and that Church’s girlfriend thereafter confirmed that Church regular ly smoked marijuana in the house. Thus, there was an outright certainty, not just a “fair probabil ity,” that the house contained illegal drugs. The police got a warrant to search for illegal drugs in Moseley’s house, and they searched for drugs in places where drugs might normally be hidden. Hence the search was lawful.

Church contends that the search was unlawfu l because Moseley specified in the affidavit that the police were looking for evidence of dr ug distribution in violation of Tennessee Code § 39-17-417, whereas they had probable cause to search only for evidence of simple drug possession in violation of Tennessee Code § 39-17-418. But drugs are contraband, and the police have a right to seize them, pursuant to a search warrant, wherever they are likely to beNo. 15-5362 United States v. Church Page 5

present. For purposes of this warrant, therefor e, it did not matter whether the police suspected that Church possessed marijuana, dealt mar ijuana, or committed some other crime. See Zurcher , 436 U.S. at 555-56. What mattered was that there was a “fair probability” that marijuana was in the house. United States v. Berry , 565 F.3d 332, 339 (6th Cir. 2009). Moseley’s affidavit left no doubt of that probability. There was no such probability in United States v. Hodson , 543 F.3d 286 (6th Cir. 2008), which is the case that Church re lies on here. That cas e concerned a warrant that authorized the police to search for child pornography in the home of a suspected child molester. The court held that evidence of child molestation, by itself, di d not give cause to beli eve that the police would find the contraband specified in the warrant —namely, child pornography—in the molester’s home. See Hodson , 543 F.3d at 293. In this case, in cont rast, a detective reque sted a warrant to search for contraband in a place where the detec tive had already seen it. The facts here are analogous not to Hodson , but to a case where the police stumble upon child pornography in a home, and then ask a magistrate for a warrant to search the home for child pornography. The difference between this case and Hodson , therefore, is simply that in this case the affidavit established probable cause.

B. Church also argues that Mose ley’s affidavit failed to estab lish probable cause because its contents were “stale.” Church did not make this argument in the district court, so we review only for plain error. See United States v. Soto , 794 F.3d 635, 650 n.11 (6th Cir. 2015). To show probable cause that contraband is where an officer’s affidavit says it is, the affidavit must contain statements of fact “so clos ely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States , 287 U.S. 206, 210 (1932). Because contraband is often moved from place to place, information about its whereabouts can grow stal e over time. Whether an affidav it’s information is stale enough to preclude a showing of probable cause depends on the facts alleged in the affidavit. See United States v. Spikes , 158 F.3d 913, 923-24 (6th Cir. 1998). Thus, for instance, where an affiant swears that marijuana “is now” on certain premises, and there is no indication that theNo. 15-5362 United States v. Church Page 6

information is otherwise stale, the affidavit show s probable cause that the marijuana is where the affidavit says it is. See United States v. Smith , 783 F.2d 648, 652 (6th Cir. 1986). Likewise, where an affidavit indicates that someone keeps “a ready supply of heroin” in his apartment, the phrase “ready supply” shows that he roin is likely there now. See United States v. Williams , 351 F.2d 475, 476 (6th Cir. 1965). Here, Detective Moseley’s a ffidavit provided every reason for the magistrate to think there were drugs in the house at the time the warrant was issued . Moseley said that “David Church uses this address,” that Church told the detectives that “he smokes marijuana in the house,” and that Church’s girlfriend said that “Church does smoke marijuana in the residence and . . . she has told him not to do so in the past .” That reference to “the past” would make little sense unless Detective Moseley was describing ev ents in the present tense. The affidavit therefore showed that Moseley was acting on fresh information.

Church contends that the affidavit is stal e because Moseley did not recite the date on which he was inside Church’s house. But whatcounts is the affidavit’s content, not its “technical perfection.” Brooks , 594 F.3d at 490. And here Moseley’s affidavit made clear that it was not stale.

C. Finally, Church argues that the police acted unreasonably, in violation of the Fourth Amendment, when they used a prying ram to open Church’s safe, thereby destroying it. We review that argument de novo. See United States v. Winters , 782 F.3d 289, 295 (6th Cir. 2015). Obviously the police had the right to open th e safe. “[A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in whic h the weapon might be found.” United States v. Ross , 456 U.S. 798, 821 (1982). And “officers executing search warrants on occasion must damage property in order to perform their duty.” Dalia v. United States , 441 U.S. 238, 258 (1979). For example, if a home’s occupant refuses to admit an officer af ter he announces his authority and purpose, the officer may lawfully break open the door. See 18 U.S.C. § 3109; United States v. Ciammitti , 720 F.2d 927, 932-34 (6th Cir. 1983).No. 15-5362 United States v. Church Page 7

Here, the police did not break open the safe capriciously: they had probable cause to believe there might be drugs inside; Church refuse d to provide the safe’s combination; and thus the police had no choice but to open it by force. The district court was right to hold that the police acted reasonably when they did so. The district court’s judgment is affirmed.No. 15-5362 United States v. Church Page 8

______________________________________ CONCURRING IN THE JUDGMENT

______________________________________ GRIFFIN, Circuit Judge, concurring in the j udgment. This appeal of the denial of defendant’s motion to suppress raises troub ling issues regarding the Nashville Police Department’s use of overreaching boilerplate affida vits for requesting search warrants. In this case, the Department secured a warrant to broa dly search defendant’s home for evidence of racketeering, money laundering, and drug trafficki ng based solely on defendant’s possession of a small quantity of marijuana. Alt hough I question the validity of the overbroad affidavit in cases like this, I would affirm the district court’s de nial of defendant’s motion to suppress under the Leon 1 good-faith exception because a reasonably well- trained officer would not have known that the warrant lacked probable cause to sear ch for evidence of drug trafficking.

I. On August 31, 2012, Detectives Jeff Moseley a nd Daniel Bowling of the Metropolitan Nashville Police Department arrested defendant David Church, Jr. for failure to report to his probation officer. Inside Church’s residence, the detectives sme lled burnt marijuana. Church admitted that he had smoked marijuana that morning and showed Detective Bowling a single, burnt marijuana blunt. When Church’s girlfr iend arrived, she stated that Church smokes marijuana in the residence against her wishes. Church does not challenge the admission of this evidence.

After Church refused consent to a search of the residence, Detective Moseley prepared an affidavit for a search warrant using a pre-printed form. The boilerplate la nguage at the top of the affidavit states: [T]here is probable and reasonable cause to believe that [Church’s residence is] in possession of certain evidence of a crime, to wit: violations of one or more of the following state laws as set forth in TCA Sections 39-12-204 [RICO], 39-14-903 [Money Laundering], and 39-17-417 [Tennessee Drug Control Act of 1989], and the evidence to be searched for is as follows: All controlled substances,

1 United States v. Leon , 468 U.S. 867 (1984).No. 15-5362 United States v. Church Page 9

controlled substances paraphernalia, sc ales and mixing devices, packaging materials, any equipment, devices, reco rds, computers and computer storage discs, to include the seizure of comput ers to retrieve suchrecords, books or documents adapted and used for the pur pose of producing, packaging, dispensing, delivering or obtaining contro lled substances, or record ing transactions involving controlled substances, any indicia [of] ownership, dominion, or control over the premises to be searched including rental receipts, mortgage payments, utility bills, photographs of any persons involved in the criminal conduct, all financial records pertaining to the disposition of the proceeds of the violation of the criminal laws specified above, and any goods or personal property, including US currency or negotiable instruments, constituting proceed s of a violation of the aforesaid laws or funds used to facili tate the same[,] firearms , including handguns, pistols, revolvers, shotguns, rifles, machine guns, and other weapons, and any evidence or items which would be used to conceal th e for[e]going or prevent its discovery. Affidavit, R. 36-6, ID 84 (final three alterations added). In the s ection titled “Statement of Facts In Support of Probable Cause,” Detective Mose ley inserted the following three paragraphs: I, your affiant, and [Metropolitan Nas hville Police Department] Gang Unit Det. Bowling went to 3219 Priest Woods Drive in an attempt to serve an outstanding felony warrant [ 2 ] on David Church m/b DOB: 1/15/ 1985. David Church uses this address as his own address on his TN dr iver’s license. Det. Bowling and I observed David Church drive up to the house and park his car on Priest Woods Drive in front of the home. Det. Bowli ng and I were able to take David Church into custody as he was on the sidewalk approachin g the front door of this residence. David Church gave police a false name and stated that he was not David Church, but later admitted his real identity. David Church had Krystal’s food in his hands as he was taken into custody, and asked if he could please go in his hous e to eat his food and call his girlfriend before he went to jail. Det. Bowling a nd I let David Church into this residence using a key found on Church’s key ring. Da vid Church was allowed to sit on the couch in the first room to eat and call his girlfriend, and while doing so, Det. Bowling and I detected a strong odor of ma rijuana coming from the residence. Church admitted that he smokes marijuan a in the house and showed Det. Bowling where his marijuana blunt was in the upstair s bedroom. Church stated that he did not want police to search the house and stat ed that the house is in his girlfriend’s name, but that he does live there. Da vid Church and I called his girlfriend, Shanna Boyd, who stated that she would co me home. I greeted Ms. Boyd outside and she stated that she did not want police to search her residence. She stated that Church does smoke marijuana in the residen ce and stated that she has told him not to do so in the past.

2 The warrant was for Church’s failure to contact his proba tion officer. The affidavit does not indicate that the underlying offense resulting in prob ation involved drug trafficking.No. 15-5362 United States v. Church Page 10

Due to the odor of marijuana, along w ith both subjects’ admissions and the evidence of drugs in the location, your affi ant wishes to search the premises of 3219 Priest Woods Drive Nashville, TN 37214 and each person occupying said premises and both vehicles that each s ubject drove to the house in. In your affiant’s training and experience persons at locations where drugs are sold or used many times conceal or secrete illicit items on their person to conceal them from police detection. Your affiant has also le arned in training and experience that many times subjects at locations involved in illicit drug ac tivity are also in possession of weapons and or have outs tanding warrants for their arrest.
Id. at 84

− 85. Also in the affidavit was a pre-prin ted section titled, “Expe rience and Basis of Knowledge of Affiant,” which details Detec tive Moseley’s experience with “narcotics trafficking” and “drug dealers,” including twelve “habits, characte ristics, and practices of drug traffickers and their organizations.” Nothing in that section draws a rela tionship between simple possession and drug trafficking. Nor is the sect ion unique to Detective Moseley’s experience and knowledge given its pre-prin ted and generic nature. A state court judge authorized the search wa rrant about two hours afte r Church’s arrest. Seven officers executed the warrant. The se arch uncovered a single Dilaudid (hydromorphone) pill in the living room, 4.8 grams (.169 oz.) of marijuana in a closet, and a locked safe. The officers discovered that a key on C hurch’s key ring fit the safe door , but the safe also required a passcode. When asked for the passcode, Church said he did not know it because the safe came with the house. The officers pried the safe ope n. Inside, they discovered a loaded .40 caliber handgun with a box of ammunition of .40 caliber rounds and 800 Dilaudid pills. Church does not contest that the handgun and pills were his. A federal grand jury indict ed Church for (1) possession of a firearm as a felon, (2) possession with intent to distribute hydromorphone, and (3 ) possession of a firearm in furtherance of drug trafficking. Church moved to suppress the fruits of the search on several grounds, including that the warrant did not esta blish probable cause for racketeering, money laundering, or drug trafficking, an d the officers violated the F ourth Amendment by unreasonably destroying the safe.No. 15-5362 United States v. Church Page 11

The district court held a suppressi on hearing and ruled from the bench:
The next issue I want to address is in te rms of one aspect of the probable cause. There clearly wasn’t probable cause to believe there was a RICO violation or money laundering in this case. And to the extent that the supporting affidavit and search warrant deal with RICO or m oney laundering, there is absolutely no probable cause whatsoever to believe there was a RICO violation or money laundering involved. And to the extent that the state court keeps issuing boilerplate search warrants with those i ssues, they are out of line. They are wrong, and it really needs to stop. There is not a basis to believe that there is a RICO violation or money laundering in this case. Nevertheless, with respect to probable cause fo r drug trafficking, the di strict judge stated: And so the issue is whether [there was] probable cause for the issuance of the warrant based on the smell with the blunt that was found and the admissions of having smoked marijuana that day and having smoked marijuana in the house in the past. I am finding that there is probabl e cause based on that to issue the search warrant under a violation of the Tenne ssee Drug Control Act of 1989, as well as Tennessee Code 39-17-417. I might add that the Tennessee Drug Control Act controls all of Part 4, Ti tle 39. For instance, the heading of 39-17-401 is headed Tennessee Drug Control Act, and the Drug Control Act is not limited to Section 417. But in any event, possession, use and admissions of such and smell of marijuana is sufficient to support probab le cause for a warrant under Section 417. The heart of the defendant’s argument is [ United States v. Hodson , 543 F.3d 286 (6th Cir. 2008) and] that in this instance the argum ent is that there is only evidence to support a possession charge, probable cause of that and not for trafficking. The Hodson case dealt with child molestation versus child pornography. Here all of the conduct qua lifies under the Tennessee Drug Control Act, so that is distingui shable on that basis.
The court therefore denied Church’s motion to suppress without reaching the government’s alternative, good-faith exception argument. Church conditionally pleaded guilty to Count One, possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g )(1) and 924, and Count Tw o, possession with in tent to distribute hydromorphone, in violation of 21 U.S.C. § 841(a)(1). On appeal, Church challenges the district court’s denial of his motion to suppress.No. 15-5362 United States v. Church Page 12

II. Church’s primary argument is that the warrant was invalid because the affidavit did not establish probable cause to searchfor evidence of the crime of drug trafficking, as opposed to simple possession. We review the district court’s findings of fact for clear error and conclusions of law de novo. United States v. Berry , 565 F.3d 332, 338 (6th Cir. 200 9). “Whether a search warrant affidavit establishes probable cause to c onduct the search is a legal question that this Court reviews de novo.” United States v. Brooks , 594 F.3d 488, 492 (6th Cir. 2010).

A. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon proba ble cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “To establish probable cause adequate to justify issuance of a search warrant, the governmental entity or agent seek ing the warrant must submit to th e magistrate an affidavit that establishes a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’” Brooks , 594 F.3d at 492 (quoting Berry , 565 F.3d at 338). “Whether the affidavit gives rise to this fair probability depends on the totality of the circumstances.” Id. (internal quotation marks omitted). “When a warrant applicant seeks to search a specific location, the affidavit must establish a ‘nexus between th e place to be searched and the evidence to be sought.’” Id. (quoting United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (en banc)). “The critical element in a reasonable search is not that the owner of 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.” Id. (citation omitted). The judicial officer issuing such a warrant must “be supplied with sufficient inform ation to support an inde pendent judgment that probable cause exists for the warrant.” Whiteley v. Warden , 401 U.S. 560, 564 (1971). “Mere affirmance of belief or suspicion is not enough.” Nathanson v. United States , 290 U.S. 41, 47 (1933). Our review of the sufficiency of the ev idence supporting probable ca use is limited to the four corners of the affidavit. United States v. Rose , 714 F.3d 362, 366 (6th Cir. 2013).No. 15-5362 United States v. Church Page 13

The affidavit in this case ra ises serious concerns about whether probable cau se existed to search Church’s residence for evidence of drug trafficking, as opposed to mere possession. Overbroad warrants can run afoul of the Fourth Amendment’s guarantees as they can authorize carte blanche access to search for any evidence of any criminal activity. See United States v. Hodson , 543 F.3d 286, 291

− 93 (6th Cir. 2008) (probable cause to search for evidence of one crime is not probable cause to search for evidence of a different crime). In this case, we learn that the Nashville Police Depart ment apparently uses, and Te nnessee magistrates apparently accept, boilerplate affidavits authorizing broad searches for evidence of racketeering, money laundering, and drug trafficking on mere evidence of possession of small quanti ties of marijuana. Such use and acceptance

― without specific facts linking drug possession to those crimes

― is troubling. Indeed, as the district court rightly ob served, such overreaching is “out of line . . . and it really needs to stop.” Despite my concerns, I would not reach the question of whether probable cause existed here because I would resolve this case under the Leon good-faith exception to the exclusionary rule. When a search violates the Fourth Amendm ent, the fruits of the search are ordinarily inadmissible under the exclusionary rule, “a judicially created remedy designed to safeguard Fourth Amendment rights generall y through its deterrent effect.” United States v. Calandra , 414 U.S. 338, 348 (1974); see Mapp v. Ohio , 367 U.S. 643, 654

− 55 (1961). The “good-faith exception applies when a warrant issued by a neutra l and detached magistrate is discovered, after the search, to have been nonetheless invalid

― and, hence, the search unlawful

― yet the officer conducting the search acted inobjectively reasonable reli ance on that warrant.” Hodson , 543 F.3d at 293 (internal quotation marks and brack ets omitted). In establishing the good-faith exception, the Supreme Court “based its refusal to suppress evidence in such situations on its conclusion that ‘the marginal or nonexistent benefits produced by suppr essing evidence obtained in objectively reasonable reliance on a subsequentlyinvalidated search warrant cannot justify the substantial costs of exclusion.’” Id. (quoting United States v. Leon , 468 U.S. 867, 922 (1984)). However, the Court stated that s uppression remains appropriate if:No. 15-5362 United States v. Church Page 14

(1) the magistrate was “misled by information in the affidavit that the affiant knew was false or would have known was false except fo r his reckless disregar d of the truth;” (2) the magistrate “abandoned his judi cial role” or neutrality; (3) the warrant was “so lacking in indicia of proba ble cause” as to render official belief in its existence unreasonable; or (4) the warrant was so “facially deficient” that it could not reasonably be presumed valid.

Leon , 468 U.S. at 923. In this case, Church argues that the warra nt fails under the third exception: it was so lacking in indicia of probable caus e that the officers’ belief in its existence was unreasonable. “Under this exception, the executing officer must have had ‘no reasonable grounds for believing that the warrant was properly issued.’” United States v. Helton , 314 F.3d 812, 824 (6th Cir. 2003). “[T]he objective reasonableness determinati on does not examine the subjective states of mind of the particular law enforcement officers conducting this partic ular search, rather it inquires ‘whether a reasonably we ll trained officer would have know n that the search was illegal despite the magistrate’s decision.’” Leon , 468 U.S. at 923 n.23.

Church relies on Hodson , in which we held that the good-faith exception was inapplicable because a “reasonab ly well trained officer” would ha ve realized that there is a difference between the crimes of child mole station and possession of child pornography. 543 F.3d at 293. In this case, ho wever, there is a closer rela tionship between the crimes of marijuana possession and marijuana trafficking th an child molestation a nd possession of child pornography. The distinction be tween possession and trafficki ng under Tennessee law is simply the amount of marijuana possessed. 3 And a warrant to search for evidence of possession authorizes a search for contraband such as dr ugs and drug paraphernalia, which would also be encompassed in a warrant to search for evidence of drug trafficking. He re, there is undisputed evidence of drug activity inside Church’s residence, including a recently smoked marijuana blunt

3 In Tennessee, simple possession and drug traffick ing are two separate crimes. Tennessee Code Annotated § 39-17-417 prohibits the knowing manufacture, deliv ery, or sale of a controlled substances. Tenn. Code Ann. § 39-17-417(a). It also prohibits the possession of a controlled substance with the “intent to manufacture, deliver or sell” the controlled substance. Id. § 39-17-417(a)(4). By contrast, § 39-17-418 makes it a crime to “knowingly possess or casually exchange a controlled substa nce” unless obtained pursuant to a valid prescription. Id. § 418(a). The dividing line between the two crimes with respect to possession is one-half ounce or 14.175 grams. Compare Tenn. Code Ann. § 39-17-417(a), (g) (drug trafficking) with Tenn. Code Ann. § 39-17-418 (“simple possession”); see also State v. Englet , No. W1999-283-CCA-R3-CD, 2000 WL 556479, at *1 (Tenn. Crim. App. May 8, 2000) (distinguishing the two crimes).No. 15-5362 United States v. Church Page 15

observed by the officers and admission by Chur ch’s girlfriend that Church smokes in the residence. Moreover, in factua lly similar cases, we have upheld searches for evidence of drug trafficking under the good-faith exception. See United States v. Hollin , 459 F. App’x 535, 539

− 40 (6th Cir. 2012) (observing th at presence of “marijuana roach es offered a factual basis to believe the Apartment contained contraband” and concluding that even if “probable cause was ultimately lacking, it is unlikely that a reasonably well trained officer would have known that the search was illegal despite the magistrate’s decision.”) (internal quotation marks omitted); see also Brooks , 594 F.3d at 495

− 96 (White, J., concurring) (fruit of the s earch admissible under good-faith exception where there were marijuana seeds in plain view and defendant had $1,000 in cash in his pocket). Thus, although this is a close case, I cannot conc lude that a reasonably well-trained officer would have known the search was illegal despite the magistrate’s decision to issue the search warrant for drug trafficking.

B. Church next argues that the ev idence should be suppressed because the warrant was stale. Because Church did not raise this argument below, we review for plain error. United States v. Soto , 794 F.3d 635, 655 (6th Cir. 2015). The burden is on Church “to show (1) error that (2) was plain, (3) affected [his] substant ial rights, and (4) seriously aff ected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Ushery , 785 F.3d 210, 218 (6th Cir. 2015). “The probable cause inquiry gauges the likeli hood that evidence of a crime may presently be found at a certain location. A warrant must be supported by ‘f acts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time .’” United States v. Hython , 443 F.3d 480, 485 (6th Cir. 2006) (quoting Sgro v. United States , 187 U.S. 206, 210 (1932)). “The expiration of probable cause is determined by the circumstances of each case, and depends on the inherent nature of the crime.” Id. (citations omitted). “Relevant variables include the ‘character of the crime (chance enc ounter in the night or re generating conspiracy?), the criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), [and] th e place to be searched (m ere criminal forum of convenience or secure op erational base?).” Id. (quoting United States v. Spikes , 158 F.3d 913,No. 15-5362 United States v. Church Page 16

923 (6th Cir. 1998)). Whether an affidavit is so stale that it fails to show probable cause to support a search warrant is determined by the circ umstances of each case, not by rigid rules. See Spikes , 158 F.3d at 923

− 24.

In United States v. Hython , our court held that a warrantbased on an undated controlled buy of cocaine was invalid on staleness grounds. 443 F.3d at 485

− 87. Neither the warrant nor the supporting affidavit specified the date of a controlled buy, and neither document supported that the residence was a secure operati onal base of an ongoing drug enterprise. Id. at 487. We also held the good-faith exception was inappli cable because an affi davit with an undated controlled buy and “no indication of ongoing investigation, subseque nt or previous controlled buys, or further surveillance of the address . . . [was] patently insufficient. No well-trained officer could have reasonably relied on a warrant issued on the basis of [such an] affidavit.” Id. at 488

− 89. Church argues that the warrant is defective because Detective Moseley failed to date the events in the affidavit. But a specific date is not always required. Rather, the information in an affidavit must “clearly rebut[] any inference of stal eness of information or lack of specificity of the affidavit.” United States v. Williams , 480 F.2d 1204, 1205 (6th Cir. 1973) (per curiam); see Hython , 443 F.3d at 486

− 87 (citing Williams ). For instance, where an affidavit says that marijuana “is now” on certain premises, and ther e is no indication that the information is otherwise stale, the affidavit s hows probable cause that the marijuana is where the affidavit says it is. See United States v. Smith , 783 F.2d 648, 652 (6th Cir. 1986). Likewise, where an affidavit indicates that someone keeps “a ready supply” of controlled substances in his apartment, the phrase “ready supply” sufficiently communicates that there is a continuing presence of the controlled substance in the apartment. See United States v. Williams , 351 F.2d 475, 476

− 78 (6th Cir. 1965). In this case, Detective Moseley’s affidavit provided some reason for the magistrate to understand that there were drugs in the house at the time the warra nt was issued. For instance, the affidavit recited that “David Church uses th is address,” “he does live there,” and that Church told police that “he smokes marijuana in the house. ” It also said that Church’s girlfriend told police that “Church does smoke marijuana in the re sidence and . . . she has told him not to do soNo. 15-5362 United States v. Church Page 17

in the past.” The reference to “the past” woul d make little sense unless Detective Moseley was describing events in the present tense. A magistrate reading th e affidavit would thus understand that Detective Moseley was acting on fresh inform ation. Detective Moseley’s affidavit is not a model one. But Church’s argument that Detectiv e Moseley “simply forgot to put specific dates in his affidavit,” United States v. Thomas , 973 F.2d 1152, 1157 (5th Cir. 1992), is not fatal to the warrant’s validity, at least under plain error review.

C.

Church’s final claim of error is that the execution of the search was unreasonable. Specifically, he maintains that the executing officers violated the Fourth Amendment by destroying the safe containing the Dilaudid pills and handgun be cause the officers could have contacted the safe manufacturer, ra ther than prying the safe open. If the warrant is valid, Church does not dispute that the officer s were authorized to search in the safe, but merely that destruction of the safe was unreasonable. Th e district court found, under all the facts and circumstances, that it was “reasonable to search the safe and necessary to break into it to search it.” We review de novo. United States v. Bates , 84 F.3d 790, 794 (6th Cir. 1996). We apply a “reasonableness” standard to de termine whether destru ction of property was “reasonably necessary to effectiv ely execute a search warrant.” Hill v. McIntyre , 884 F.2d 271, 278 (6th Cir. 1989) (citation omitted); see also United States v. Ramirez , 523 U.S. 65, 71 (1998) (“The general touchstone of reasonableness, which governs Fourth Amendment analysis, governs the method of execution of the warrant. Excessive or unnecessary destruction of property in the course of a s earch may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppres sion.”) (internal citation omitted). Nevertheless, “officers executing searchwarrants on occasion must damage property in order to perform their duty.” Dalia v. United States , 441 U.S. 238, 258 (1979); see also United States v. Whisnant , 391 F. App’x 426, 430 (6th Cir. 2010) (collecting cases). The government argues the safe, and things likelyto be stored in a safe, were within the scope of the search warrant. “A lawful search of fixed premises generall y extends to the entire area in which the object of the search may be found and is not limited by the possibility thatNo. 15-5362 United States v. Church Page 18

separate acts of entry or opening may be required to complete the search.” United States v. Ross , 456 U.S. 798, 820 (1982). “[A]lthough a warrant to s earch for a stolen vehicle would not justify opening a small wall safe in a bedroom closet, judicial authorization to search a home for contraband drugs, money associated with drug tr afficking, and drug paraphernalia would clearly justify the opening of doors, closets, drawers, sa fes, and other places where the listed items could be hidden.” United States v. Lengen , 245 F. App’x 426, 434 (6th Cir. 2007). The government is thus correct that guns and drugs, which are small enough to fit inside the safe and were in fact found in the safe, were within th e scope of the warrant. That the officers could have contacted the manufacturer to open the safe without destroying it does not rend er opening of the safe objectively unreasonable. Church ci tes no factually similar cases hol ding that, wher e alternatives are available, the forcible opening of a container renders the search unconstitutional. The district court did not err.

III. For these reasons, I concur in the judgment affirming the district court’s denial of Church’s motion to suppress.