* The Honorable Gordon J. Quist , Unit ed States Distr ict Judge for the

W estern Distri ct of Michigan, sit ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0276P (6th C ir.) File Name: 04a02 76p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v

.

D ENNIS W ASHI

NGTON ; and E BONY B ROWN , Defenda nts-Appe llees. X - - - -
> , - - - - N No. 03-3959

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

umbus. No. 03-00009—Algenon L. Ma rbley, District Judge. Argued: June 9, 2004 Decided and Filed: August 23, 2004 Before: BOGGS, Chief Judge; MOORE, Circuit Judge;

and QUIST, District Judge. * 2 United Sta tes v. W ashington, et al. No. 03-3959

1 In the appellees’ bri ef, counsel s tated that this re s idence bel onged to W ashi ngton eve n though the Cadil lac reg ist ered to t hat addres s was regis tered to E bon y Bro wn, wh o wa s not a re siden t there, ac cord ing to

couns el. Appell ees’ Brief at 11- 13. _________________ COUNSEL

ARGUED: Ke vi n W . K el le y, UNITED STATES A TTOR NEY, Columbus, Ohio, for Appellant. Lewis E. Williams, Jr., Columbus, Ohio, forAppellees. ON BRI EF: Kev in W . Kelley, UNI TED STATES ATTORNEY, Columbus, Ohio, for Appe llant. Lewis E. Williams, Jr., Co lumbus, Ohio, John B oyd Binning , Heathe

r R. Zil ka
, Columbus, O hio, for A

ppellee s. BOGGS, C. J., delivered the opinion of the court, in which QUIST, D. J., joined. MOORE, J. (pp. 13- 26), d elivered a separate dissenting opinion.

_________________ OPINION

_________________ BOGGS, Chief Judge. The Unit ed States appeals the districtcourt’s granting

of the defenda

nts’ motion

to suppre ss evidence. The defendants, Den nis Washington and Ebony Bro wn, h ad been indicted on several counts after police officers executed a search warrant at 3112 Crossg ate Road 1 and found narcot ics an d fire arms. Alth ough the officers had obtained a warran t, the def endants f iled a moti on to suppress arguing that the o fficer ’s affid

avit, whic h was the sole basi s of the warrant, was insufficient to establish probable cause

. The district court agreed and g ranted the motion t

o suppres s. The United Sta

tes now a ppeals, a rguing that p robable

cause did ex ist or, alternatively, that the good-faith exception of United States v. Leon , 468 U.S. 897 (1984) should have beenNo. 03-3959 United Sta tes v. W ashington, et al. 3

2 Th is man was later i dentifi ed as defendant W ashington, al though the polic e were unab le to identif y him before the exe cuti on of th e warrant at 3112 Cross gate Road. applied

. Be cause we find that the good-faith exception should have been applied, we now reverse

. I

The case be gan whe

n the Columb

us (Ohio)Polic e Department’s Narcotics Bureau planned an un de rc ov er “b uy” of crack cocaine

froman “unwitting,” a person who does not know that he is dealing with the police. Detective Michae l Johnson, worki ng undercover, arrang ed a buy fr om an unwitting on Octo ber 1, 2002. Johnson met with the unwit ting, who telephoned his narcotics suppl ier. Johnson and the unwitting then drove to a designated mee ting place. Shortly thereafter, a

black male driving a blueCadillac parked next to Johnson’s car. 2 The unwitting got out and entered the Ca dillac. When the unwitting returned to Johnson’s car, h e prod uc ed a bag of crack coc aine. Johnson recorded the license plate of the Cadillac and later determined that it was regist ered to a woman named Ebony Brown at 3112 Crossga te Road, Columbus, Ohio. Th e police su bsequen tly began conducting surveillance on that residence.

OnOctober 5 (four days lat er) , Johnson arranged for another buy with the sa

me unwittin

g. The u nwitting again called his su pplier, and thereafter reported that the supplier said that he would be delaye d because he was waiting on a ride to pick up h

is Cadillac

in the repair shop. Shortly a fter this call, the police officers at 3112 Crossgate Road obse rved
a Chevrolet Blazer pick up a black male (later ide ntified as Washington) who emerged from that residence. The officers trailed the Blazer, which ev entually dropped the ma n off at “Columbus Car Audio,” where he picked up a blue Cadillac and drove it away . While the unidentified manwas dr ivin g, the unwitting received a

call from the supplier, who instructed 4 United Sta tes v. W ashington, et al. No. 03-3959

him to go to a local Burger

King. Detective Johnson and the unwitting then drov e to Bur ger Ki ng to wa it for the supplier. The blue Cadillac (which was being followed) pulled into the Burger King parking lot and the unwitting got out to meet with the driver. Johnson immediately recog nized that th is
was both the same man and the same Cadillac involved in the first “buy ” on Octo

ber 1. After leaving the Cadillac, the unwitting came back and again pr oduced crack cocaine. Johnson was unable to identify the driver of the blue Cadillac at that time, though h e su bsequen tly observed the blue Cadillac parked at 3112 Crossgate Road o n both October 8
an d October 9. As it turned out, the man driving the blue Cadillac was defendant Washington.

Based on these facts, Johnson sought a w arrant to search the resid ence at 3112 C rossga te Road. The basis for the warrant was a four-page affidavit, in which Johnson relay ed innarrative form the facts stated above. He added that, based
onhis experie

nce, indi viduals involved with drug trafficking commonly

ke ep re co rd s, do cu me nt s, an d m on ey c lo se by. In addition, Johnson noted that t he Crossgate house had been robbed two mont hs earlier, which was also (in his opinion) “indicative of suspects searching for nar cotics a nd larg e sums of cash.” A state magistrate judge approved t

he warr ant, whic h was specifically

limited to documents and records relatingto drug trafficking, but did not authorize a sear ch for drugs themselve s.
The police conducted the search on October 11 (the warrant
was issued on the 9th), and saw drug s in plain

view after they entered the house. Based on thes e ob servations, the police obtained a se condwarrant to search for drug s and drug paraphernalia. Although it is not relevant for the issues in this case, the polic e found su

bsta nti al amounts of crack cocaine,
a firearm, and large amounts of money at the C ross gate residence.

The grand jury

returned a four-count indictment against the defenda nts, charging them with violations of various drug andNo. 03-3959 United Sta tes v. W ashington, et al. 5

3 In the distr ict court, the government had rais ed the i ssue of whether the defendants had standing f or Fourth Amendm ent purposes. The government failed to raise this iss ue on appeal, and has t herefor e waived it. See United Stat

es v. Higgins , 299 F. 3d 1039, 10 50 (9t h Cir . 2002) (“Stand ing to chal lenge a search or seizure is a matte r of su bstan tiv e Fou rth Amend m ent law rather than of Arti cle III juri sdiction, meaning that the government can waive the standing defense by not assert ing it. ”) (citi ng Illinoi

s v. Rakas , 439 U.S. 128 , 139-40 (197 8)). firearm-related

offense s. Prior to tr

ial, the defendants moved to suppress

all evidenc e obtained in the search. They made four specific arguments as to why the evidence should be suppressed: (1) the warrant was invalid because the affida vit lacked evide nce to estab lish proba ble cau se, an d the go o dfaith exception did not apply; (2) the police executing the search f a iled to kno ck and a

nnounce ; (3) information in affida vit was too stale; and

(4) the evidence from the second search was the “fruit of the poisonous tree.”

The district court

found that

the affidavit was not sufficient to establish probable cause. Specifically, the c ourt found that the evidenc e did not e stablish a sufficient

nexus between the criminal ac ti vi ty a nd the residence itself. The court relied heavily onthe fact that the police had not identified the suspect (who turned out to be Washington) and had not established

where he lived prior to executing the search. Finding t hat the i nitial search was invalid, the court did not
reac h the other arguments, though it also suppressed the evidence of the second search as “tainted fruit.” The United States appealed. 3

II
The gover

nment con

tends t hat the district court erred by finding that the affidavit failed to establish proba ble cause. Alt ernativ el y, even if probable cause did not exist, the government

argues that

the good-faith exception recognized in United States v. Leo n , 468 U .S. 897 (1984) should have been applied. We consider each arg ument in turn. 6 United Sta tes v. W ashington, et al. No. 03-3959

A

“Whenrevi ewin g decis ions on motions to suppr ess, this court wil l uphold the factual findings of the district court unless clear ly errone ous, wh ile legal conclusions are reviewe d de novo.” United States v. Weaver
, 99 F.3d 13 72, 1376 ( 6th Cir. 1996). Bec a use there was no hearing and no f actual finding s, the district court ma de only legal c onclusion s. “Where, as in this case, the district court is itself a reviewing court, we owe its conc lu si ons no p art icu lar def ere nce . In reviewing a state ma

gistra te 's de terminat

ion of pro

bable cause, this court

pay s g reat de ferenc e to a m agistr ate's finding s, which sho

uld not be s et a side unle ss arbitr arily exercised.” United States v. Leake
, 998 F.2d 1359, 1362-63 (6th Cir. 1993) (internal citations and quotations omitted). In determining if an a

ffidavit establishes probable cause: [T]he task

of the issuing magistrate is simply to make a practic al, common-sense decision whether, given all the circumstances set forth

in the af fidavit be fore him, . . . there is a fair probability that contr aband or evidence of
a crime wi ll be foun

d in a particular place. And the duty of a revie wing co urt is simply

to ensu re that the magistr ate had a substantia l basi s f or concluding that probable cause existed.

United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (en banc) ( quot ing Illinois v. Gates , 462 U.S. 213, 2 38 -39 (1983) (emphasis add ed) ). “To justify a sea rch, the circumst ances mu st

indicate why e

vidence of illeg al activi

ty will be found

in a part

ic ula r place. There must, in other words, be a nexus between the place to be searche d a nd the evidence sought.” Ibid. (internal citations and quotations omitted). Thus, the critical question here is whether the facts alleged in the affida

vit established a suff

icient nexus between the criminal activity observe d and the Crossgate residence.No. 03-3959 United Sta tes v. W ashington, et al. 7

4 A “bare bo nes” aff

idavit “st ates suspicions, or conclusions, wit hout providing some under ly ing factua l circum stance s regar ding v eracity, reliab ility, and basis of knowl e dge.” Un ited States v. Va n Sh utters , 163 F.3d 331 , 337 (6th Cir. 1998) (quoting Weaver , 99 F.3d at 1378). Under the fac ts of this c ase, the

existence of proba ble caus e is an extremely close c all. However, give n o ur conclusion that the good-faith exception

clearly applies, we will as sume without de ciding t

hat proba ble caus e did not exist.

B

As explained above, the police off icers in t

his case obtained, and reli ed upon, a warran t issued by

a state magistr ate judg e . Therefore, the goverme nt argues that Leon’s good-faith exception should have been applied.

This court has explained that “[c]ourts shoul d not . .

. suppress evidence obtained in objectively rea sonable reliance
ona subsequently invalidated se arch warrant.” Carpe nter , 360 F.3d at 595 (quot ing United

States v. Leon , 468 U.S. 897, 922 (1984)). Pursuant to Leon , this good -faith exception wi ll notapply in four spec ific situations: (1) where t he affi davit contains information the affiant knows or should have known to be fals e; (2) where t he iss uing m agistrate wholl y abandoned

his or her judicial role; (3) where the affidavit was
so lacki ng i n indicia of probable cause as to render of ficial belief in its existen

ce entir ely unreasonable [ or] where the warrant application was supp orte d by [nothing] more than a “bare bone s” af

fidavit 4 ; (4) whe

re the wa rrant is s o facia

lly deficient that the execut in g offic ers can not reas onably presume it to be valid. United Sta te s v. Van Sh utters , 163 F.3d 331, 337 ( 6th

Cir. 1998). The defendants argued that the second and third situations existed here. The district court concluded that th e third applied and thus rejected the gover nment’s g ood-fai

th-excep tion arg

ument.
This co urt re views the decision of whether to apply the good-f aith exception de novo. Le ake , 99 8 F. 2d a t 1 366 . In 8 United Sta tes v. W ashington, et al. No. 03-3959

Carpenter , a case decided well af ter t he proceedings below,

w e rec ently outlined the appropria te showing that must be made to establish that the officers could hav e rea sonably believed that the affidavit was sufficient to establi sh probab le
cause. Under Carpenter , this showi ng is less demanding than the showing necessary

to establish probable cause:

If a lack of a subst antial ba sis also prevented application of the Leon objective good

faith exception, the exception would be devoid of substance. I n fact, Leon states that

. . . a findi

ng of ob jective good fait

h [is inappropriate] when an offic er's affidavit

is “so lacking in in

dic i a of probable cause a s to render

officia l belief i n its existence entirely unreasonable.”

This is a less demanding showing thanthe “substant ial b asis” threshold required to prove the existence of probable cause in the first place. Carpenter , 360 F.3d at

595 (q uoti ng United States v. Bynum
, 293 F.3d 192, 195 (4th Cir. 2002)). Carpente r makes it clear that the “so lacking

in indicia ” test is less demanding than the “substantial basis” te st. Thus, it is entire ly p oss ible tha t an affida vit could be i

nsuffic ie n t for probable cause but sufficient for “good-faith” re liance.

The standard stated in Carpenter is consistent with the purpose and rationale of the exclusionary rule. The Supreme Courthas explained that the exclusionary rule is “a judiciall y crea ted r emedy desig

ned to safeguard Fourth Amendme nt rightsgenerally

through its deterrent effect, ra ther tha n a personal constitutional right of the p arty ag grieved.” Leon , 468 U.S. at 906. Excluding evide nce d eters constitutional violations by providing

incentiv es fo r the police to seek warrants before executing a se arch. Thus, when the officers do in fact obtain a warrant , the purpose of the exclusionary rule has larg ely

been ser ved. While

it is t rue that the police still have a duty to assess the af fidavit upon whichthe warrant

w as based, we will, under Carpenter , exclude e vidence in thesesituations

only when the

affida vit is “s o lacking

inNo. 03-3959 United Sta tes v. W ashington, et al. 9

indicia of probable cause as to render off icial belief in it s existence entire ly

unreasonable.” Carpenter , 360 F.3d at 595.

There have been several

recent cases, a ll of which involved questions about

t he nexus between criminal activity and places, where this court has found that probable cause did not exist, but that the good-faith exception should apply

. United States v. Carpenter , 360 F.3d 591 ( 6th Cir. 2004) (en banc); United Sta tes v. Van

Shutters
, 163 F.3d 331 ( 6th Cir. 1998); United States v. Schultz , 14 F.3d

1093 (6th Cir. 1994) ; United States v. Savoca , 761 F.2d 292 (6th Cir. 1985).

For example, in Carpenter , this c ourt e xplained, “ [w]e [ hav e] previously found Leon applicable in cases where we determined

that the affida

vit conta ined a min

imally sufficient
nexus between the illegal activity and the place to be searched to support an officer's good -fait h beli ef in t he warr ant's validity , even if the infor mation provided [did n

ot] establi sh probable cause.” 360 F.3d at 596. I n Carpent er , police helicopter surveillance had observed a marijuan a p atch near
a residence and a beaten

path extending from

the house to the plants. This court found that the evidence submitted by the po lice fa iled to provide a suf ficient nexus to esta

blish probable cause, b ut stillfound tha

t Leon applied because “the affida vit was not totally lacking in facts connecting the residence to the marijuana patches.” Ibid . We a d ded, “[t]hese facts . . . were too vague

to provide

a substan tial basis for the determination of probable cause. But these fac ts . . .
were not so vague as to be conclusory or meaningless.” Ibid.

A case more factually

similar to the one before us can be found in United Sta tes v. Sc

hultz , 14 F.3 d 1093 (6th Cir. 1994). In Schultz , a police officer arrested a n individual for drug possession, and

that individual then informed the officer that a man named Schultz was his source for drugs. The officer investig ated fur

ther and found tha

t s ome of the informant’s informat

ion was c orrect

. For example, they traced some phone

record s ( call s to Jamaica) back to an
a partmen twhere Schultz had been parking his car. The 10 United Sta tes v. W ashington, et al. No. 03-3959

officer also traced the phone number used by the infor mant to p urchase drug s back to a

woma n in whose c ar Schultz ha d
once received a

tr affic ti cket. Th e police office r also discovered

that Schul

tz had a safe depos i t box at the bank. Based large ly on th e evid ence ab ove, the o fficer sought a warrant to search the safe de posit box. 14 F.3d at 1096.

Inassessin

g proba ble c ause, thi s court explained: “ In his affida vit . . . , the only connection [the officer] made was that, ‘Based on his training

and experience, [he] believed . . . that it is not uncommon for the records, etc. o f such [dru g] distribution to be maintained in bank safe deposit boxes.’” Id

. a t1097. The

court fo und the af

fidavit to be insuff

ic ient : “[The office

r] did not have a nything more tha n a guess that contraband

or evidence of a crime w ould be f ound in the box e s, and therefore the first warra nt should not have been issued.” Id. at 1097-98.

The court went on, however, to find that the goo d-faith exception applied: [We] cannot sa

y that this wa

rrant w as “so la

cking [in indicia of probab le cause].” As previously discussed, [the police office

r] certa inly had probable cause to believe that Schultz had committed a crime. Moreov er, although we hav e held that his “training and experience” wer e n o t sufficient to estab li sh a nexus of probable cause between that c r ime and the safe deposit boxes, the connection was not so remote as to trip on the “so lacking” hurdle.

Id . at 1098.

In this case, even assuming probable cause was no t established, it is clea

r that the affida vit include d enoug

h facts

w ith respect to the nexus betwee n the cri minal act i vity an d the Crossga

te resid ence to overco me the “so la cking” hurdle. First, Officer Johnson observed two drug de als involving the
same man wh o was d rivin g a car registered to a person at 3112 Crossgate Road. Thus, just like the officer in Schultz
,No. 03-3959 United Sta tes v. W ashington, et al. 11

Johnson certainly ha

d prob able cause to believe that Washingtonhad committed a crime. Second, Was hi ngton (the then-unidentified dealer) emerg ed from 3112 Crossga

te immediat ely prior to conducting the secon d drug deal on October 5. Third, Washington had told the unwitting that he had to wait fo r a ride so that he could pick up his Cadillac, whichwas regist

ered to t he Crossg ate residence. Fourth, the
same Cadill ac used in both drug deals (and which Washingtonclaimed was his ca r) was ob served at the Crossga te residence on the

morning s of Octob er 8 and 9. Fi na ll y, the affidavit included a reference to an

armed robbery at the Crossgate residence twomonths earlier, which Johnson stated (based on four and one-half ye ars i n the Narcotics Bureau) was indicative of suspects searching for narc otics or cash. Th ese fact s might ve ry well be e

nough to establish probable cause, altho ugh we decline to make that holding. At the very least, though, the facts listed above clearly satisfy the “so lacking” standa

rd necessary

for Leon’s good-f

aith exception to be applied. The re was a visible nexus
connec tin g W ashington to the house, Washington to the Cadillac, and the Cadillac to the house.

Both the dis tri ct court and the defendants relied on two
cases in which this court declined to apply the g ood- faith exception where the officers had obtained a warrant with an affida vit. Un ited S tates v. Weaver, 99 F.3d 1 372 (6th Cir. 1996) and Uni ted St ates v. Leake , 998 F.2d 1359 (6th Cir. 1993)

. Both of these cas es c an be easily distinguished. F or example, in Weaver, th e pol ice off icer ha d merely filled in blanks on a boilerplate affidavit. The officer had also relied
ona single informant wi thout any corr oboration of the infor mant’s allegations. The court found that the searc h warrant could not have been relied on in good fai th und er the se cir cumstances. Weaver, 99 F .3d a t 1375 , 1381 (“We believe a reasonably

prudent o fficer

would hav e so u ght greater corroboration to show probable cause and there fore do notapply the Leon good-faith exception on the fact s of this case.”). Similarly

, in L eake , a police officer relied on an anonymousinf

ormant, who informed the officer that he 12 United Sta tes v. W ashington, et al. No. 03-3959

smelled marijuana at

a residence. 998 F.2d

at 1360-61. The officer spent only two hou

rs on tw o nights observing the house, but failed

to observe any

evidence of wrongdoing. Id

. at 1367. I n fact, t he only corroboration of

the infor mant’s tip
was that the house ma tche d the informant’s general descriptionand that

it had a basement. Id . at 1361. On the basi s of this information, the officer submitted an affidavi t and obtained a warrant. Th e c ou rt re fu se d t o a pp ly Leon. Id

. at 1367 (“The limited information provi ded by the anonymouscaller, coupled with the brief limited surveillance by the affiant of

fice r that turned up nothing unusual, was insuffic ient. [The officer] knew, or should have known, that reliance on the sea

rch war rant was ill-advis ed.”). I

n both Weaver and Leake , the e fforts of the polic e were

far less ext ensive than the efforts of Officer Johnson an d th e Columbus police, and could hardly be dee med “ good-faith” reliance.

III

Becau se we find the good- faith exception should have been applied, we now REVERSE the district court’s granting of the defenda nts’ motion to suppress. Because the district court did notpass on the defendants’ other ba se s for the motion to suppress , we decl ine to con sider tho se argume nts at thistime.No. 03-3959 United Sta tes v. W ashington, et al. 13

______________ DISSENT

______________ KAREN NELSON MOORE, Ci rcuit Judge , dis senti ng. The majority upholds a search when the underly ing affida vit neither connec ts a sear

ched re sid e nce to an

y ill egal a

ctivity
nor states that a s u spect obs erved e ngag ing in suc

h illicit activity away f romthe residence actually lives at the se arched residen c e. Becau se such a warran t is so lack

ing in pr obable
cause that no re asonable

office r could r ely on it in executing the sear ch, I respectfully

dissent.

Iwould affirm

the judgment of the district court. There are two issues raised by this appea l: whether the warr ant was supported by probable c ause, and if not, whether the officers
reasona bly relie d on th e warrant in executing the search. Belie ving that both in

quiries sh

ould be an swered

in th e negative, I would suppress the evidence uncover ed as a consequence of the illegal sear ch of 3112 Crossgate.

I. THE AFF

IDAVIT

Inanal yz i ng the legality

of the first warranted search a nd the reasona

bleness o f the off

icer’s r eliance on the first
warran t, it is helpful to recount the affidavit that Johnson presented to the issui

ng judg e. Dete ctive Johns on’s aff idavit spoke of an unid

entified individua

l, whom the

unwitti n g called his “supplier” and who responded when the unwitting requested to purchase cocaine. Johnson did not actually see the drug exchange, but on two separate oc casions Johnson “observed

verbal a

nd physical interac

tion between the unwitting and the male,” Joint Appen d ix (“J.A.”) at 39 (Johnson Aff. I

), who wa s identifi ed by

the unwitt

ing as the supplier, that was consistent with a dru g sale . Also on two separa te occasi ons, J ohnso n obse rved t he sup plier drivi ng a Cadillac that was register ed to Ebony Brown a t 3112 Crossgate. Detectives assisting Johnson watched the supplier 14 United Sta tes v. W ashington, et al. No. 03-3959

l eavingthe 3112 Crossgate residence on only one oc casion
, and Johnson saw the Cadillac parked in front of

the residence
ontwo consecut ive m ornings, although he did not see the supplier on th o se mornin

gs. The affida vit attest ed to Johnson ’s beli ef that “it is very c ommon for narcotics traffickers to conce al their i dentity by means of ha

ving other persons register vehicles that they commonly dr

ive an d
esse ntia lly

own.” J.A. at 40. The affidavit also discussed how a 2002 police report showed that Brown had

been robbed at gunpoint by three

individua ls who stole

a diamond ring and cash, which led Joh nson t o the conclusion, based on Johnson’s “exper i ence and expertise[,] . . . that the robbery

. . . is indicative of suspects searching for nar cotics and la rge sums of cash.” J.A. at 40. Final ly, the af fidavit a ttested to Johnson’s beli ef

that in his experience, drug traffickers a re likely to keep records and documents of their illicit activities at their residences. J.A. at 41.

The aff id avi t i s no tab le f

or w hat it lac ks. It

fails to identify the name of the supp lier or to provide a detailed description of him. It in no way

suggests that any

drug trafficking activity was seen transpiri ng in or near the residence. The affidavi t does not state or provide any information implying that the supplier lived or resided at 3112 C rossgat e, aside from Johnson’s statementthat the supplier was seen leaving that location onone lone occasion. Additiona lly, the aff idavit does not indica

te th a t Johnson per

formed a ny r esearc h to determine whether the supplier, or Brown, lived at or owned 3112 Crossgate.

II. PROBA

BLE CAUSE

Based upon the f

unda mental principles of the law of warranted sea rches, I

cannot c onclude t

hat proba ble caus e s upported the issuan ce of the search wa rrant. The Fo urt h Amendment

st at es that “no Warrants shall issue, but upon p robab le cause, s

upported by O ath or af

firmation.” U.S. Const. amend. IV. The question is whether “given all the circumstances s e t forth in t he affi davit . . . t

here is a fairNo. 03-3959 United Sta tes v. W ashington, et al. 15

probability

that cont raband or eviden

ce of a c rime will b e found in a particular

place.” Illinois v. Gates , 462 U.S. 213, 238 (1984 ). In eval uatin g the is suin g magist rate’s p robable
cause determination, we apply a flexible “totality of the circumst ances” approach, which permits us to evaluate the particular facts of each case. Id. Despite our consideration of
a broad range of circumstances that factor into a magistrate’s probable cause determination, thereare “limits beyond which
a magistr ate may not venture in issuing a warrant.” Id. at 239. “Sufficient

information must be presented to the magistr ate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Id. Becau se Johnso n’s af fidavit di d not esta

blish that Washington owned

the 3112 Crossgate residence, which diminishedthe likelihood that evidence of drug trafficking would be found the re, I believe the mag istrate e

rred in it s probable cause determination. Any review of this search

must beg in with

the clea r realit y that Johnson’s affidavit

did notmention any illicit activity at the searched residence nor did it presen t a ny c redible information(from a con fide ntial infor mant o r an un witt ing) that dru g tra fficking

occurr ed there . Unlike o ther ca ses in whichdrug activity

was reported near or at

a residence, either by surveilling police or an informant, there w as no such information provided here. Cf. United States v. Martin , 920 F.2d 393, 399 (6th Cir. 1990) (upholding search when narcotics sale occurred near the residence and a confidential informant provided informationabout drug activity occurring inside the residence); United States v. Pelham
, 801 F.2d 875, 878 (6th Cir. 1986) (“When a witness has seen evidence in a specif ic l ocation in the immediate past, and is willing to be named in the affi davit, the

‘totality of the ci

rcumstan ces’ present s a ‘substa

ntial basi s’ for conducting a search for that evid ence. ”). Johnson’s affidavit stated that he observed the supplier meet with

the unwitt

ing twic e in

locations away f

rom the residence, but Johnson n ever o bserved drug trafficking behavior at 3112 Crossgate. The supplier’s actions may have provided probable cause for an arrest warran t, but the proper 16 United Sta tes v. W ashington, et al. No. 03-3959

1 In ot her c ases , whi ch cont

rary to t his fact ual sc enario i nvolved direct observation of il licit activity at a na med reside nce, inc omp lete details aboutthe act ivi ty als o l ed us to sup press evide nce. See United States v. Weaver , 99 F.3d 1372 , 1379 (6th Cir. 1998) (holding that even though a con fid e nti al i nformant provided a t ip tha t drug ac tiv ity was occurring at a r es iden ce, the aff idavit did not at

test t o any “substanti ve determinant

of a search warran

t is whether

evidenc e is likely to be found on the premi ses to be searched. See Zurcher v. Stanford Daily , 436 U.S. 547, 556 (1978) (“T he c ritical element in a reasonable search is not tha t the own er of the propert y is suspected of

crime but that the

re is rea sonable
cause to believ e that the

sp ecifi c ‘things’ to be searched for and seized are located on t he property to

which en

try is sought.”).

Inprior cases, a

paucity of deta

ils linking a defendant to the named residence and

to drug activity a

tthat residence has led
us to conclude that probable cause did not support the issued
warran ts. In United

States v. Helton , 314 F.3d 812 (6th Cir. 2003), we held that probable cause di d n ot exist when there
was no observation

of drug a ctivity at a res idence a

nd little to
no additional proof connecting the residence to drug traffi cking. The affi davit i n Helton attested to three phone calls a month between the searched residence and known drug deal ers, a description of the residence, and an asse rtion that
one of the drug dealers stored

money with someone other tha n the defendant somewhere other than the re sidence. Id. at 820- 21. After considering other circumstan ces o f “minimal persuasive value,” we held that there was little to no probabil ity

that the searched residence con tai ned drugs or drug proceeds. Id. at 823 ; see also Uni ted States v. Savoca
, 761 F.2d 292, 295 (6th Cir. 198 5 ) (holdin g that pr obable
cause did not support search of a motel room where two knownbank

robbers were observed toge ther, even taking

into account the inferen c e that bank robbers tend to conceal evidence in places like hotel rooms, b ecause there was nothing linking the motel room to the particular crime, which had occurred over 2,000 miles away). 1 Similar to the facts inNo. 03-3959 United Sta tes v. W ashington, et al. 17

independent investiga tive actio ns to corrob orate [the] informa nt’s claims, such as surve illance o f th e . . . residence for undue traf fic or a second control led purc hase m ade with office rs viewin g”); United States v. Leake
, 998 F.2d 135 9, 13 65 ( 6th C ir. 199 3) (sup press in g ev idence when anonymous ti pste r repor ted pe rsona l obs ervation of drug t raf fi ckin g-t ype acti vit ies at a r esidence , but t he inve sti gati ng detect ive di d not noti ce anything out of the ordinary at the resi dence during his two-ni ght survei llan ce, a nd t he detective’s tracing of vehi cles located at t he resi dence did not increa se the probability that drugs would be found at the reside nce). Helton
, there was no direct connection between the supposed illegal drug activity

observed by Johnson

and 3112 Crossgate; the gulf be

tween the two is bridged by

Johnson’s statement that it is common for drug traffickers to keep business records and journals at the ir reside nces.
The affida

vit’s rel i a nce upon a belief that drug-re lated materia ls may be found in the home s of those

who sell drugs els ewhere in lieu of articulable observations of drug trafficking

behavior at a res idence d

oes not pe

r se cond emn the magistrate’s probable

cause determination. In the pa st, we have held that

an observation of drug trafficking away f rom a dealer’s residence can provide probable cause to search the alleged dealer’s residence. United States v. Miggins , 302 F.3 d 384, 393-94 (6th Cir. 2002). We have permitted searches of
a trafficker’s residence whe n the trafficker

is observed dealing drugs elsewhe

re, desp ite the at

tenuate d c onnection between the traf fick ing and the residence, beca use an officer’s experien ce that drug de alers of ten store evidenc e of thei

r activ it ies at their residences enhances the proba bility that trafficking-related

evidence will be discovered. Id .; see also United States v. Jones , 159 F.3d 969, 974-75 (6th Cir. 1998) (“[T]he fact tha

t the incid ents ref erred t o in the affidavits took place on the pre

mises [(in the driveway

of the residence or in the defenda

nt’s car )] rather th a n inside the house does not invalida te the sear

ch of the

house.” ); United St ates v. Caicedo
, 85 F.3d 11 84, 1193 ( 6th Cir . 199 6) (finding probable cause when affidavit attested to officer’sexperience 18 United Sta tes v. W ashington, et al. No. 03-3959

that “‘many drug tr affick ers util iz e their homes to conduct t heir illegal narcotics trafficking a ctivities’”)

. Nonetheles s, i n thesetyp es of ca ses we s hould be mi ndful tha t Gates ’s “totality of the circumstances” test requiresus to eschew firm rules and that evidence may not always be likely

to be found where a dealer resides. See United States v. Allen , 211 F.3d 970, 975 (6th

Cir. 2000) (en banc) (“As the Court obse

rved in Gat es , te st s a nd pr on gs ha ve an un fo rt un at e t en de nc y t o develop a life of their own, and tend to draw more attention to their individ ual characteristics than to the totality of the circumstances.”).

We a re pres ented wit

h an altog ether di ffere

nt set o f circumstances when the affida vit in ques ti on fails to demo nstra te that the suspect actually owns or lives at the residence. The link be

tween the suspect a nd the re sidence

is the key support f or the inf erence that a re sid ential s earch i s likely to turn up evidence of illicit drug activi ty. Whe n that link is missin

g, it is an imper

missible logica l leap to a ssume t hat evidence will be found at a location where the s uspec t does not reside. While it

makes some logical sense that drug dealers may maintain rec ords and docu ments at their

homes, it is less reasona

ble th at traffickers would keep recor ds and document s in pl ac es wh er e t he y te mp or ar il y r eside (visiting
a friend’ s house or

a motel) or wh ere the

y a re temporarily guests (spending several hou rs at the home of an acquain tance). It is notable th at there is no compa

rable inference in Johnson’s affidavit that drug dealers tend to keep document s and records of their trafficking at any house where police happ en to see them, nor would such a presupposition be plausible or supportable absent some direct observation or knowledge of documents kept at a particular location. Reviewing the warrant in a “p racti cal, common-sense” manner, it is clear that there was a dramatic reduc tion in the probabil ity

that evidence of drug trafficking would have been found at 3112 Crossgate when the affidavit failed to dra w the critical link betwe en the sup pli er’s activities outside the residence and the residence itself. S ee United States v. VanNo. 03-3959 United Sta tes v. W ashington, et al. 19

Shutters
, 163 F.3 d 331, 337 n.4 (6th Cir. 1998) (noting that verification

that defendant actually lived at th e searched residence “should h ave been included in the affidavit”). Johnson’s affida

vit stated that his su

pport ing detectives obs erved the unnamed supplie

r leavin g the 31 12 Crossg at e address on one sing

le occasion, but the affidavit contains no other information about the sup plie r’s connection to the residence. Nor did the affidavit claim that Brown resided at 3112 Crossga

te. At the

time he pr

oduced the affid

avit, Johnson did not know, and consequently did not and c ou l d notinform the

court, w

heth er the supplier lived at the residence, was an

occasional houseguest, or just visited 3112 Crossga te on the morning he was observed leaving thehouse.

Unlike the affidavits in other cases in which officers have clearly established that a

defendant owned the residence to be searched, Johnson’s affidavit did not reflect any resear ch into mortga ge or phone records, or any other pot e ntial proof that Washingtonlived or resided at 3112 Crossgate. See Miggins , 302 F.3d at

388 (aff idavit drew link between defendants and searched residence, even though no drug traffi cking activity occurred at the residence); United States v. Watkins , 179 F.3d 489, 493 (6th C ir. 1999) (affidavit clearly established that residence was owned by

defenda nt); Caicedo , 85 F.3d at 1193 (affida vit noted that defendant

had lied about his address and the affidavit claimed that

defendant’s concealment of his true address could indicate that additional evidence would be found at his ac tual resi dence) ; U nit ed States

v. Schult z , 14 F.3d 1093, 1097 (6th Cir. 1994) (upholding search when there
were c lear links betwee

n defend ant and se arched

apartme nt; the affida vit attested to the fact that

the defe ndant re sided in the apartment, and automobiles registered to the d efendant
were parke d at the se arched apartme nt complex); United States v. David

son , 936 F.2d 856, 857-58, 859-60 (6th Cir. 1991) (affida

vit attest in g to a wi desprea

d and thor

oughly documented p attern o f drug t raffic king activity

clearly identified that the sus pec t lived at the searched residence). Furthermore, unlike many of our other deci sions in

this area, Johnson’s affidavit failed ev en to identify the name of the 20 United Sta tes v. W ashington, et al. No. 03-3959

individual who was presumed to live at 3112 Crossgate. Not every affida vit and warrant

must identi fy

the suspe ct or name th e suspect as the owner of the searched pr operty, but whe

n the only evidenc e making

it probab le that

illicit mat

erials will be found at a particular residence is the assumption that drug dealers tend to keep drugs, money , guns, and record s at their homes, it seems clear t

hat there should be evidence that the trafficker actually owns or r

esides a t th e property

to be searched. Cf. United States v. Pinson , 321 F.3d 558, 564-65 (6th Cir. 2003) (holding that an affidavit does not need t o name a d ealer or the owner of searc hed property , but on l y wh en a confidential informant actually purchased drugs and witnessed drug trafficking a t the searched residence).

Johnson’s other ruminations in the affidavit about the supplier’s connection to the residence and Brown’s connections to the s up plier’s alleged drug traf ficking constitute little more

than spec

ulation a nd fail to sus tain the legali ty of the search. Johnson’s observations of the Cadillac outside 3112 Cross gate on two sepa rate mor nin gs did not at all establish that the supplier resided at that address. Nor does Johnson’s suggestion that the supplier registere d the Cadillac in Brown’s name to conceal his identity successfully show that the suppli er lived

at 3112 Cr

ossgate . Furthe

rmo r e, Johnson’s statement that the theft of a diamond ring an d cash fromBrown “ is indicative of suspects searching for narcotics and large sums of ca sh,” J.A . at 40, is little more than guesswork

because the robbery

may have oc curred for my riad
reasons

. This speculation is also irrelevant; the robbery incident does nothing to establish that the supplier l ived o r resided at 3112 Crossgate. Considering the “totality of the circ umstan ces ” — the dearth of observe d

drug trafficking activity at 3112 Crossgate, the failure of the affidavit to prove that the supplier resided at 3112 Crossga

te, the f ailure o f the af

fidavit to ide nt if

y t he suppl ier, and the lack of any additional eviden c e demonstrating a prob abili ty that d rug evid ence would be found at the re sid ence — Johnson’s a ffidavit failed toNo. 03-3959 United Sta tes v. W ashington, et al. 21

establish a fair probability that documents relating to drug trafficking

would be discovered at the 311 2 Cr ossg ate residence. Theref

ore, the warran t was not support ed by probable cau se, a nd the search cannot be justified on that basis.

III. THE LEON GOOD-F AITH EXCEP TION

The majority er

rs by c oncluding

that the g ood-fai

th exception established in United States v. Leon , 468 U.S. 897 (1984), insulates the search from reproach. Leon articulated the principle

that the exclusionar

y r ule does n

ot o perate “to bar admission o f eviden

ce seiz ed in

reasona ble, go od-faith reliance on a sear

ch warr ant that is subseque ntly he ld to be defective.” Van S

hu tters , 163 F.3d at 337 (quotations omitted). However, Leon will not apply when “it is clear that

. . . the officer will have no reasonable grounds for believing that the warrant was properly

issued.” Leon , 468 U.S. at 922- 23. The relevant exception to the Leon rule provides that “an officer [would not] manifest objective good faith in relying

on a warrant based on an af fidavi t so lacking in indicia of probable cause as t o render official belief in its existence entirely unreason able .” Id. at 923 (emphasis added). Thus, the inquiry is whether Johnson’s affida vit was so d

eficien t in establishing probable cause to search 3112 Cross gate

that “a
reasona bly well tra ined officer would have known that the search was illegal despite the magistrate’s authorization.” Id. n.23.

The application of Leon to this precise factual situation — whe re no criminal activity is observed a t the searched residence and the affidavit fails: 1) to i dentify the suspe ct; and 2) to demonstrate that the suspect lives at the place to be searched — is a novel question for this circuit. In d ifferen t factual circumstances, we have held that an officer’s reliance
ona warra

nt was obje ctively

unreasonable when the warrant failed to make a sufficient connection between a suspect, the
su spect’s illegal actions, the objects to be seized, and the p lac e to be searched. See Helton , 314 F.3d at 825 (“A 22 United Sta tes v. W ashington, et al. No. 03-3959

reasona ble office r knows th at evide

nce of th ree ca lls a month t o known d rug dealers from a house, a de scription of that house, and an allegation that a drug de aler stores drug proceeds with his brother and his brother's girlfriend (neither of whom live at or are known to visit that house), falls we ll short of establishing probable cause that the house conta ins evidence of a cri

me.”); Uni ted St ates v. Weaver , 99 F.3d 1372, 1381 (6th Cir. 1998) (holding that “a rea sonably prudent officer would have sought gr eater corro borati on to show probable cause” when the af fida vit did not indicate a fair pr ob ab il it y that a suspect was gr owing ma

rijuana at a particular residence); United States v. Leake
, 998 F.2d 1359, 1367 (6th Cir. 1993) (rejecting application of Leon because “a two-nig ht, two-h oursurveillance simply produc ed no significant

corroboration of the information’s cla im of marijuana trafficking”).

The government un

persuas ively sugg ests that several of our
cases mandate an outcome in its favor because those ca se s apply the good-faith exception “despite the lack of any nexus between the crimi nal activ ity a nd the pla

ce to be sear ched.” Gov’t Br. at 34 (ci ting Van Shutte rs , 163 F.3d at 337-38; Schultz
, 14 F.3d a t 1098; Savoca , 761 F.2d at 298). The government’s misreadi

ng of the se case s explain s its oversta tement; inthe cited cases, an identified suspect and a strong and demonstrable connection between the suspect and the place to be sear ched served as the nexus between the criminal activity

and the search location. For example, in Van Shutters
, the affiant had personal knowledge of the suspect’s criminal enterprises, the affidavit implied that the affiant had observed the suspect in the searched residence o r otherw ise determined

that the suspect frequented the residence, a nd a search of a different residence owned by the suspect

turned up incriminating evidence. Van Shutte rs , 163 F.3d at 334, 337. We ruled tha

t Leon preserved the fruits of the search. In Schultz
, an officer sought a warr ant to search a s afe -deposit box based upon the int

uitio n that documents and records of drug distribution are o ften kept in such boxes. Schultz , 14 F.3d at 1097. We held that despite the l ack of a nexusNo. 03-3959 United Sta tes v. W ashington, et al. 23

between the crime and the safe-deposit boxes, the connection
was not so remote as to make Leon inapplicable. Id. at 1098. In Schultz , however, there was a proven ne xus betwe en t he suspect and the safe-deposit box, a connection missing here. See alsoSavoca , 761 F.2d at 298 (holding that affidavit was not“so lackingin indicia of probable cause” when two known bank r obbers were observed stay ing at the motel room tha t
was searched). By contr ast, Johnson’s affi davit d oes not show in any meaning ful fashion that the supplier w as connected

to 3112 Cro ssgate

ina way that would increase the prob abil ity

that documentary e

vidence would be discovered there.

The majorit

y’s be lief that the result here is dictated by United States v. Carpenter , 360 F.3d 591 (6th Cir. 2004) (en banc) is no less misplaced. In Carpenter , a major ity of the en banc court upheld

a search under Leon when an a ffidavit stated merely that mar

i juana was observed near a residenc e bel ongin g to the defendants and that a road connected the residence to the marijuana. Id. at 593. The Carpente r majority discusse d the appl icability of Leon in cases when “the affidavit contained a minimally sufficient nexus between the illegal activity a

nd the place to be searched to support an
o fficer’s good-faith belief in the warrant’s va lidity.” I d. a t 596. The court concluded that the o fficers acted r

easonab ly inse archi ng the Carpenters’ residence for evidence of marijuana cultivation. Id.

I continue to b elieve that Carpente r was wrongly

decided, id. at 601-04

(Moore, J., dis s enting) , but it is the law in this circuit. Nonetheless, its holding does not guide this outcome because of the differences between the two c ases. The “minimally

sufficient” nexus of physica l proximity between the drugs and the r eside nce that was the f

ocal poin t in Carpenter is not evide

nt in this ca se. The ma jority in C arpe nter felt that an observation of marijuana growing “near” the residence (about 900 feet awa y), as opp osed to “in,” “abutting,” or “within the curtilage of ” the re si dence, justified the officers’ reasonable re liance upon the w a rrant 24 United Sta tes v. W ashington, et al. No. 03-3959

even though the proximity of the marijuana wa s too remote to gi ve probable cause to search. By contrast, Johnson did n o t observe drug activity

anywher e near 3112 Cro ssgat e; the purported trafficking occurred se

veral miles from the home. A s a result, Johnson, unlike the officer in Carpenter , could notrely on the

propinquity of the

drugs to the residence as an indicator that d rugs were likely to be discovere d at the home. Instead
, Johnson had to rely on the extremely tenuous link between the supplier and the residence and the presumption that a trafficker will keep drug-related materials at the i r residence. Relatedly, the war rant in C

arpen ter strongl

y impliedthat the defendants owned the residence, but it did not need to b ecau se the obs ervation of the ma rijuana plants “near” the r

eside nce provid

ed th e req uisite nexu s that made belief in the war

rant’s v alidity

reasona ble. Diss imilar ly, Johnson’s warr ant made no mention of the supplier’s connection

to 3112 Cro ssgate , but such a connection was absolute ly

necessary

given that the sup pl ier, as o pposed to
some observation of physica l proximity, served as the primary link to the residence.

An y r easonab le offic er would have known that pr

obable
ca use di d not support the warrant because the affida vit’s discussion of only a sparse and speculative connection between the supplier

and 3112 Crossgate highlighted its clear deficie ncies. As justification for the document search, Johnson relie d on his intu ition and e

xperienc e that tho se involved in trafficking often keep records of their illegal activities where they

live. Yet, the affidavit did not identify the supplier or attempt to show that the supplier resided at the 3112 Cross ga te, b oth of whic h constitu

te fatal omissions. Any reasona ble offic er would

have known that it is

illega l to search a residence when it is not clear that the suspect lives or resides there or

conducts i lle gal dru

g activ ity t here, be cause ther e is not a high probabilit y that the de sired evidence w ill be uncovered at that location. A rea son able off icer wou ld have realized that, without more surveillance or

research, he
or she could not determine whether the supplier owned the residence at 3112 Cr

ossgate , was an o ccasional houseg uest,No. 03-3959 United Sta tes v. W ashington, et al. 25

or simply stay

ed at 3112 Cros sgate the one time he was observed leaving the house. U

nder such circumstances, a
reasona ble offic er would reco gniz e the di minished probabilit y of finding documentary

evidence at 3112 Crossgate.

Two additional facts reinforce the un r easonableness of Johnson’s reliance upon the wa rran t. First, Johnson’s affida vit stated that he had

agreed to make a controlled buy of
a kilogram of coca ine, whic h he suspe cted wou

ld be provided by the supplier. Johnson submitted the first affi dav it and obtained the first warrant before the buy occur red, and the abandonment

of the controlled buy sug gests that the officers acted with unne cessar

y ha ste when mor

e investigation cou

ld have been conducted. Second, i t is impossib le to ignore the
easewith which Johnson could have uncovered the supplier’s connection

to 3112 Crossgate. A simple public records in qu ir y, further resea

rch in to the name on the utilities
accoun ts regi stered a

t the addr ess, or additional surveillance would ha ve p rovided clear evidence of whethe r the supplier actually lived at 3112 Crossgate. The relative prolixity of the affada vit (4 pag es, single-spaced) does not remedy its fa ilure to provide easily a

cquired and v ital information linking the supplier to the residence. See , e.g. , Helton
, 314 F.3d at 816, 824 (showing that length of affidavit is not dispositive by rej ectingapplication of Leon even though affidavit was twenty-seve

npages l ong). It was unr easonable for Johnson to rely on an af

fidavit lacking this critical information.

IV. CONCL USION

Insum, I disse nt because the majority ’s holding further erodes the fundamental pro te ctions ag ainst unr easonab le governmental intrusions promised by the war rant provisions of the Fourth Amendment. By declaring that the officers relied reasonably

on the warrant when the u nde rlying affida vit drew no connection

between the illegal activity and the place to be searched or between the suspect and theplace to be s earched, the majority vitiates the prophylaxis of the search warrant requirement. In the triangulation between 26 United Sta tes v. W ashington, et al. No. 03-3959

trafficking

ac ti vi ty, a suspect, and a pl ace to be searched, we have previously permitted s earches even though all three points cannot be

connec ted, but th e majorit y unfortuna

tely and unnecessarily

debilitates the Fourth Amendment b y validating a search in which neither the t rafficking activity nor the suspect are tied to the location to be searche d.