*

The Honorable Gordon J. Quist, United States District Judge for the

Western District of Michigan, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0276P (6th Cir.)

File Name: 04a0276p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

DENNIS WASHINGTON; and

EBONY BROWN,

Defendants-Appellees.

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No. 03-3959

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 03-00009—Algenon L. Marbley, 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 States v. Washington, et al. No. 03-3959

1

In the appellees’ brief, counsel stated that this residence belonged

to Washington even though the Cadillac registered to that address was

registered to Ebony Brown, who was not a resident there, according to

counsel. Appellees’ Brief at 11-13.

_________________

COUNSEL

ARGUED: Kevin W. Kelley, UNITED STATES

ATTORNEY, Columbus, Ohio, for Appellant. Lewis E.

Williams, Jr., Columbus, Ohio, for Appellees. ON BRIEF:

Kevin W. Kelley, UNITED STATES ATTORNEY,

Columbus, Ohio, for Appellant. Lewis E. Williams, Jr.,

Columbus, Ohio, John Boyd Binning, Heather R. Zilka,

Columbus, Ohio, for Appellees.

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

QUIST, D. J., joined. MOORE, J. (pp. 13-26), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

BOGGS, Chief Judge. The United States appeals the

district court’s granting of the defendants’ motion to suppress

evidence. The defendants, Dennis Washington and Ebony

Brown, had been indicted on several counts after police

officers executed a search warrant at 3112 Crossgate Road1

and found narcotics and firearms. Although the officers had

obtained a warrant, the defendants filed a motion to suppress

arguing that the officer’s affidavit, which was the sole basis

of the warrant, was insufficient to establish probable cause.

The district court agreed and granted the motion to suppress.

The United States now appeals, arguing that probable cause

did exist or, alternatively, that the good-faith exception of

United States v. Leon, 468 U.S. 897 (1984) should have been
No. 03-3959 United States v. Washington, et al. 3

2

This man was later identified as defendant Washington, although the

police were unable to identify him before the execution of the warrant at

3112 Crossgate Road.

applied. Because we find that the good-faith exception

should have been applied, we now reverse.

I

The case began when the Columbus (Ohio) Police

Department’s Narcotics Bureau planned an undercover “buy”

of crack cocaine from an “unwitting,” a person who does not

know that he is dealing with the police. Detective Michael

Johnson, working undercover, arranged a buy from an

unwitting on October 1, 2002. Johnson met with the

unwitting, who telephoned his narcotics supplier. Johnson

and the unwitting then drove to a designated meeting place.

Shortly thereafter, a black male driving a blue Cadillac parked

next to Johnson’s car.2 The unwitting got out and entered the

Cadillac. When the unwitting returned to Johnson’s car, he

produced a bag of crack cocaine. Johnson recorded the

license plate of the Cadillac and later determined that it was

registered to a woman named Ebony Brown at 3112

Crossgate Road, Columbus, Ohio. The police subsequently

began conducting surveillance on that residence. 

On October 5 (four days later), Johnson arranged for

another buy with the same unwitting. The unwitting again

called his supplier, and thereafter reported that the supplier

said that he would be delayed because he was waiting on a

ride to pick up his Cadillac in the repair shop. Shortly after

this call, the police officers at 3112 Crossgate Road observed

a Chevrolet Blazer pick up a black male (later identified as

Washington) who emerged from that residence. The officers

trailed the Blazer, which eventually dropped the man off at

“Columbus Car Audio,” where he picked up a blue Cadillac

and drove it away. While the unidentified man was driving,

the unwitting received a call from the supplier, who instructed

4 United States v. Washington, et al. No. 03-3959

him to go to a local Burger King. Detective Johnson and the

unwitting then drove to Burger King to wait 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 recognized that this

was both the same man and the same Cadillac involved in the

first “buy” on October 1. After leaving the Cadillac, the

unwitting came back and again produced crack cocaine.

Johnson was unable to identify the driver of the blue Cadillac

at that time, though he subsequently observed the blue

Cadillac parked at 3112 Crossgate Road on both October 8

and October 9. As it turned out, the man driving the blue

Cadillac was defendant Washington.

Based on these facts, Johnson sought a warrant to search

the residence at 3112 Crossgate Road. The basis for the

warrant was a four-page affidavit, in which Johnson relayed

in narrative form the facts stated above. He added that, based

on his experience, individuals involved with drug trafficking

commonly keep records, documents, and money close by. In

addition, Johnson noted that the Crossgate house had been

robbed two months earlier, which was also (in his opinion)

“indicative of suspects searching for narcotics and large sums

of cash.” A state magistrate judge approved the warrant,

which was specifically limited to documents and records

relating to drug trafficking, but did not authorize a search for

drugs themselves.

The police conducted the search on October 11 (the warrant

was issued on the 9th), and saw drugs in plain view after they

entered the house. Based on these observations, the police

obtained a second warrant to search for drugs and drug

paraphernalia. Although it is not relevant for the issues in this

case, the police found substantial amounts of crack cocaine,

a firearm, and large amounts of money at the Crossgate

residence. 

The grand jury returned a four-count indictment against the

defendants, charging them with violations of various drug and
No. 03-3959 United States v. Washington, et al. 5

3

In the district court, the government had raised the issue of whether

the defendants had standing for Fourth Amendment purposes. The

government failed to raise this issue on appeal, and has therefore waived

it. See United States v. Higgins, 299 F.3d 1039, 1050 (9th Cir. 2002)

(“Standing to challenge a search or seizure is a matter of substantive

Fourth Amendment law rather than of Article III jurisdiction, meaning

that the government can waive the standing defense by not asserting it.”)

(citing Illinois v. Rakas, 439 U.S. 128, 139-40 (1978)).

firearm-related offenses. Prior to trial, the defendants moved

to suppress all evidence obtained in the search. They made

four specific arguments as to why the evidence should be

suppressed: (1) the warrant was invalid because the affidavit

lacked evidence to establish probable cause, and the goodfaith exception did not apply; (2) the police executing the

search failed to knock and announce; (3) information in

affidavit 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 court found that

the evidence did not establish a sufficient nexus between the

criminal activity and the residence itself. The court relied

heavily on the 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 that the initial search was invalid, the court did not

reach the other arguments, though it also suppressed the

evidence of the second search as “tainted fruit.” The United

States appealed.3

II

The government contends that the district court erred by

finding that the affidavit failed to establish probable cause.

Alternatively, even if probable cause did not exist, the

government argues that the good-faith exception recognized

in United States v. Leon, 468 U.S. 897 (1984) should have

been applied. We consider each argument in turn.

6 United States v. Washington, et al. No. 03-3959

A

“When reviewing decisions on motions to suppress, this

court will uphold the factual findings of the district court

unless clearlyerroneous,while legal conclusions are reviewed

de novo.” United States v. Weaver, 99 F.3d 1372, 1376 (6th

Cir. 1996). Because there was no hearing and no factual

findings, the district court made only legal conclusions.

“Where, as in this case, the district court is itself a reviewing

court, we owe its conclusions no particular deference. In

reviewing a state magistrate's determination of probable

cause, this court pays great deference to a magistrate's

findings, which should not be set aside unless arbitrarily

exercised.” United States v. Leake, 998 F.2d 1359, 1362-63

(6th Cir. 1993) (internal citations and quotations omitted).

In determining if an affidavit establishes probable cause:

[T]he task of the issuing magistrate is simply to make a

practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, . . .

there is a fair probability that contraband or evidence of

a crime will be found in a particular place. And the duty

of a reviewing court is simply to ensure that the

magistrate had a substantial basis for concluding that

probable cause existed. 

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)

(en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39

(1983) (emphasis added)). “To justify a search, the

circumstances must indicate why evidence of illegal activity

will be found in a particular place. There must, in other

words, be a nexus between the place to be searched and the

evidence sought.” Ibid. (internal citations and quotations

omitted). Thus, the critical question here is whether the facts

alleged in the affidavit established a sufficient nexus between

the criminal activity observed and the Crossgate residence.
No. 03-3959 United States v. Washington, et al. 7

4

A “bare bones” affidavit “states suspicions, or conclusions, without

providing some underlying factual circumstances regarding veracity,

reliability, and basis of knowledge.” United States v. Van Shutters, 163

F.3d 331, 337 (6th Cir. 1998) (quoting Weaver, 99 F.3d at 1378).

Under the facts of this case, the existence of probable cause

is an extremely close call. However, given our conclusion

that the good-faith exception clearly applies, we will assume

without deciding that probable cause did not exist.

B

As explained above, the police officers in this case

obtained, and relied upon, a warrant issued by a state

magistrate judge. Therefore, the goverment argues that

Leon’s good-faith exception should have been applied. 

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

suppress evidence obtained in objectively reasonable reliance

on a subsequently invalidated search warrant.” Carpenter,

360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897,

922 (1984)). Pursuant to Leon, this good-faith exception will

not apply in four specific situations: (1) where the affidavit

contains information the affiant knows or should have known

to be false; (2) where the issuing magistrate wholly

abandoned his or her judicial role; (3) where the affidavit was

so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable [or] where the

warrant application was supported by [nothing] more than a

“bare bones” affidavit4; (4) where the warrant is so facially

deficient that the executing officers cannot reasonably

presume it to be valid. United States v. Van Shutters, 163

F.3d 331, 337 (6th Cir. 1998). The defendants argued that the

second and third situations existed here. The district court

concluded that the third applied and thus rejected the

government’s good-faith-exception argument.

This court reviews the decision of whether to apply the

good-faith exception de novo. Leake, 998 F.2d at 1366. In

8 United States v. Washington, et al. No. 03-3959

Carpenter, a case decided well after the proceedings below,

we recently outlined the appropriate showing that must be

made to establish that the officers could have reasonably

believed that the affidavit was sufficient to establish probable

cause. Under Carpenter, this showing is less demanding than

the showing necessary to establish probable cause:

If a lack of a substantial basis also prevented application

of the Leon objective good faith exception, the exception

would be devoid of substance. In fact, Leon states that

. . . a finding of objective good faith [is inappropriate]

when an officer's affidavit is “so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable.” This is a less demanding showing

than the “substantial basis” threshold required to prove

the existence of probable cause in the first place.

Carpenter, 360 F.3d at 595 (quoting United States v. Bynum,

293 F.3d 192, 195 (4th Cir. 2002)). Carpenter makes it clear

that the “so lacking in indicia” test is less demanding than the

“substantial basis” test. Thus, it is entirely possible that an

affidavit could be insufficient for probable cause but

sufficient for “good-faith” reliance. 

The standard stated in Carpenter is consistent with the

purpose and rationale of the exclusionary rule. The Supreme

Court has explained that the exclusionary rule is “a judicially

created remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect, rather than a

personal constitutional right of the party aggrieved.” Leon,

468 U.S. at 906. Excluding evidence deters constitutional

violations by providing incentives for the police to seek

warrants before executing a search. Thus, when the officers

do in fact obtain a warrant, the purpose of the exclusionary

rule has largely been served. While it is true that the police

still have a duty to assess the affidavit upon which the warrant

was based, we will, under Carpenter, exclude evidence in

these situations only when the affidavit is “so lacking in
No. 03-3959 United States v. Washington, et al. 9

indicia of probable cause as to render official belief in its

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

There have been several recent cases, all of which involved

questions about the 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 States 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 court explained, “[w]e

[have] previously found Leon applicable in cases where we

determined that the affidavit contained a minimally sufficient

nexus between the illegal activity and the place to be searched

to support an officer's good-faith belief in the warrant's

validity, even if the information provided [did not] establish

probable cause.” 360 F.3d at 596. In Carpenter, police

helicopter surveillance had observed a marijuana patch near

a residence and a beaten path extending from the house to the

plants. This court found that the evidence submitted by the

police failed to provide a sufficient nexus to establish

probable cause, but still found that Leon applied because “the

affidavit was not totally lacking in facts connecting the

residence to the marijuana patches.” Ibid. We added,

“[t]hese facts . . . were too vague to provide a substantial basis

for the determination of probable cause. But these facts . . .

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 States v. Schultz, 14 F.3d 1093 (6th Cir.

1994). In Schultz, a police officer arrested an individual for

drug possession, and that individual then informed the officer

that a man named Schultz was his source for drugs. The

officer investigated further and found that some of the

informant’s information was correct. For example, they

traced some phone records (calls to Jamaica) back to an

apartment where Schultz had been parking his car. The

10 United States v. Washington, et al. No. 03-3959

officer also traced the phone number used by the informant to

purchase drugs back to a woman in whose car Schultz had

once received a traffic ticket. The police officer also

discovered that Schultz had a safe deposit box at the bank.

Based largely on the evidence above, the officer sought a

warrant to search the safe deposit box. 14 F.3d at 1096.

In assessing probable cause, this court explained: “In his

affidavit . . . , 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. of such [drug]

distribution to be maintained in bank safe deposit boxes.’” Id.

at 1097. The court found the affidavit to be insufficient:

“[The officer] did not have anything more than a guess that

contraband or evidence of a crime would be found in the

boxes, and therefore the first warrant should not have been

issued.” Id. at 1097-98.

The court went on, however, to find that the good-faith

exception applied:

[We] cannot say that this warrant was “so lacking [in

indicia of probable cause].” As previously discussed, [the

police officer] certainly had probable cause to believe that

Schultz had committed a crime. Moreover, although we

have held that his “training and experience” were not

sufficient to establish a nexus of probable cause between

that crime 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 not

established, it is clear that the affidavit included enough facts

with respect to the nexus between the criminal activity and

the Crossgate residence to overcome the “so lacking” hurdle.

First, Officer Johnson observed two drug deals involving the

same man who was driving a car registered to a person at

3112 Crossgate Road. Thus, just like the officer in Schultz,
No. 03-3959 United States v. Washington, et al. 11

Johnson certainly had probable cause to believe that

Washington had committed a crime. Second, Washington

(the then-unidentified dealer) emerged from 3112 Crossgate

immediately prior to conducting the second drug deal on

October 5. Third, Washington had told the unwitting that he

had to wait for a ride so that he could pick up his Cadillac,

which was registered to the Crossgate residence. Fourth, the

same Cadillac used in both drug deals (and which

Washington claimed was his car) was observed at the

Crossgate residence on the mornings of October 8 and 9.

Finally, the affidavit included a reference to an armed robbery

at the Crossgate residence two months earlier, which Johnson

stated (based on four and one-half years in the Narcotics

Bureau) was indicative of suspects searching for narcotics or

cash. These facts might very well be enough to establish

probable cause, although we decline to make that holding. At

the very least, though, the facts listed above clearly satisfy the

“so lacking” standard necessary for Leon’s good-faith

exception to be applied. There was a visible nexus

connecting Washington to the house, Washington to the

Cadillac, and the Cadillac to the house.

Both the district court and the defendants relied on two

cases in which this court declined to apply the good-faith

exception where the officers had obtained a warrant with an

affidavit. United States v. Weaver, 99 F.3d 1372 (6th Cir.

1996) and United States v. Leake, 998 F.2d 1359 (6th Cir.

1993). Both of these cases can be easily distinguished. For

example, in Weaver, the police officer had merely filled in

blanks on a boilerplate affidavit. The officer had also relied

on a single informant without any corroboration of the

informant’s allegations. The court found that the search

warrant could not have been relied on in good faith under

these circumstances. Weaver, 99 F.3d at 1375, 1381 (“We

believe a reasonably prudent officer would have sought

greater corroboration to show probable cause and therefore do

not apply the Leon good-faith exception on the facts of this

case.”). Similarly, in Leake, a police officer relied on an

anonymous informant, who informed the officer that he

12 United States v. Washington, et al. No. 03-3959

smelled marijuana at a residence. 998 F.2d at 1360-61. The

officer spent only two hours on two nights observing the

house, but failed to observe any evidence of wrongdoing. Id.

at 1367. In fact, the only corroboration of the informant’s tip

was that the house matched the informant’s general

description and that it had a basement. Id. at 1361. On the

basis of this information, the officer submitted an affidavit

and obtained a warrant. The court refused to apply Leon. Id.

at 1367 (“The limited information provided by the

anonymous caller, coupled with the brief limited surveillance

by the affiant officer that turned up nothing unusual, was

insufficient. [The officer] knew, or should have known, that

reliance on the search warrant was ill-advised.”). In both

Weaver and Leake, the efforts of the police were far less

extensive than the efforts of Officer Johnson and the

Columbus police, and could hardly be deemed “good-faith”

reliance. 

III

Because we find the good-faith exception should have been

applied, we now REVERSE the district court’s granting of the

defendants’ motion to suppress. Because the district court did

not pass on the defendants’ other bases for the motion to

suppress, we decline to consider those arguments at this time.
No. 03-3959 United States v. Washington, et al. 13

______________

DISSENT

______________

KAREN NELSON MOORE, Circuit Judge, dissenting.

The majority upholds a search when the underlying affidavit

neither connects a searched residence to any illegal activity

nor states that a suspect observed engaging in such illicit

activity away from the residence actually lives at the searched

residence. Because such a warrant is so lacking in probable

cause that no reasonable officer could rely on it in executing

the search, I respectfully dissent.

I would affirm the judgment of the district court. There are

two issues raised by this appeal: whether the warrant was

supported by probable cause, and if not, whether the officers

reasonably relied on the warrant in executing the search.

Believing that both inquiries should be answered in the

negative, I would suppress the evidence uncovered as a

consequence of the illegal search of 3112 Crossgate.

I. THE AFFIDAVIT

In analyzing the legality of the first warranted search and

the reasonableness of the officer’s reliance on the first

warrant, it is helpful to recount the affidavit that Johnson

presented to the issuing judge. Detective Johnson’s affidavit

spoke of an unidentified individual, whom the unwitting

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 occasions Johnson

“observed verbal and physical interaction between the

unwitting and the male,” Joint Appendix (“J.A.”) at 39

(Johnson Aff. I), who was identified by the unwitting as the

supplier, that was consistent with a drug sale. Also on two

separate occasions, Johnson observed the supplier driving a

Cadillac that was registered to Ebony Brown at 3112

Crossgate. Detectives assisting Johnson watched the supplier

14 United States v. Washington, et al. No. 03-3959

leaving the 3112 Crossgate residence on only one occasion,

and Johnson saw the Cadillac parked in front of the residence

on two consecutive mornings, although he did not see the

supplier on those mornings. The affidavit attested to

Johnson’s belief that “it is very common for narcotics

traffickers to conceal their identity by means of having other

persons register vehicles that they commonly drive and

essentially own.” J.A. at 40. The affidavit also discussed

how a 2002 police report showed that Brown had been robbed

at gunpoint by three individuals who stole a diamond ring and

cash, which led Johnson to the conclusion, based on

Johnson’s “experience and expertise[,] . . . that the robbery

. . . is indicative of suspects searching for narcotics and large

sums of cash.” J.A. at 40. Finally, the affidavit attested to

Johnson’s belief that in his experience, drug traffickers are

likely to keep records and documents of their illicit activities

at their residences. J.A. at 41.

The affidavit is notable for what it lacks. It fails to identify

the name of the supplier or to provide a detailed description

of him. It in no way suggests that any drug trafficking

activity was seen transpiring in or near the residence. The

affidavit does not state or provide any information implying

that the supplier lived or resided at 3112 Crossgate, aside

from Johnson’s statement that the supplier was seen leaving

that location on one lone occasion. Additionally, the affidavit

does not indicate that Johnson performed any research to

determine whether the supplier, or Brown, lived at or owned

3112 Crossgate. 

II. PROBABLE CAUSE

Based upon the fundamental principles of the law of

warranted searches, I cannot conclude that probable cause

supported the issuance of the search warrant. The Fourth

Amendment states that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S.

Const. amend. IV. The question is whether “given all the

circumstances set forth in the affidavit . . . there is a fair
No. 03-3959 United States v. Washington, et al. 15

probability that contraband or evidence of a crime will be

found in a particular place.” Illinois v. Gates, 462 U.S. 213,

238 (1984). In evaluating the issuing magistrate’s probable

cause determination, we apply a flexible “totality of the

circumstances” 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, there are “limits beyondwhich

a magistrate may not venture in issuing a warrant.” Id. at 239.

“Sufficient information must be presented to the magistrate to

allow that official to determine probable cause; his action

cannot be a mere ratification of the bare conclusions of

others.” Id. Because Johnson’s affidavit did not establish

that Washington owned the 3112 Crossgate residence, which

diminished the likelihood that evidence of drug trafficking

would be found there, I believe the magistrate erred in its

probable cause determination.

Any review of this search must begin with the clear reality

that Johnson’s affidavit did not mention any illicit activity at

the searched residence nor did it present any credible

information (from a confidential informant or an unwitting)

that drug trafficking occurred there. Unlike other cases in

which drug activity was reported near or at a residence, either

by surveilling police or an informant, there was 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 information about 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

specific location in the immediate past, and is willing to be

named in the affidavit, the ‘totality of the circumstances’

presents a ‘substantial basis’ for conducting a search for that

evidence.”). Johnson’s affidavit stated that he observed the

supplier meet with the unwitting twice in locations away from

the residence, but Johnson never observed drug trafficking

behavior at 3112 Crossgate. The supplier’s actions may have

provided probable cause for an arrest warrant, but the proper

16 United States v. Washington, et al. No. 03-3959

1

 In other cases, which contrary to this factual scenario involved

direct observation of illicit activity at a named residence, incomplete

details about the activity also led us to suppress evidence. See United

States v. Weaver, 99 F.3d 1372, 1379 (6th Cir. 1998) (holding that even

though a confidential informant provided a tip that drug activity was

occurring at a residence, the affidavit did not attest to any “substantive

determinant of a search warrant is whether evidence is likely

to be found on the premises to be searched. See Zurcher v.

Stanford Daily, 436 U.S. 547, 556 (1978) (“The critical

element in a reasonable search is not that the owner of the

property is suspected of crime but that there is reasonable

cause to believe that the specific ‘things’ to be searched for

and seized are located on the property to which entry is

sought.”).

In prior cases, a paucity of details linking a defendant to the

named residence and to drug activity at that residence has led

us to conclude that probable cause did not support the issued

warrants. In United States v. Helton, 314 F.3d 812 (6th Cir.

2003), we held that probable cause did not exist when there

was no observation of drug activity at a residence and little to

no additional proof connecting the residence to drug

trafficking. The affidavit in Helton attested to three phone

calls a month between the searched residence and known drug

dealers, a description of the residence, and an assertion that

one of the drug dealers stored money with someone other than

the defendant somewhere other than the residence. Id. at 820-

21. After considering other circumstances of “minimal

persuasive value,” we held that there was little to no

probability that the searched residence contained drugs or

drug proceeds. Id. at 823; see also United States v. Savoca,

761 F.2d 292, 295 (6th Cir. 1985) (holding that probable

cause did not support search of a motel room where two

known bank robbers were observed together, even taking into

account the inference that bank robbers tend to conceal

evidence in places like hotel rooms, because there was

nothing linking the motel room to the particular crime, which

had occurred over 2,000 miles away).1 Similar to the facts in
No. 03-3959 United States v. Washington, et al. 17

independent investigative actions to corroborate [the] informant’s claims,

such as surveillance of the . . . residence for undue traffic or a second

controlled purchase made with officers viewing”); United States v. Leake,

998 F.2d 1359, 1365 (6th Cir. 1993) (suppressing evidence when

anonymous tipster reported personal observation of drug trafficking-type

activities at a residence, but the investigating detective did not notice

anything out of the ordinary at the residence during his two-night

surveillance, and the detective’s tracing of vehicles located at the

residence did not increase the probability that drugs would be found at the

residence). 

Helton, there was no direct connection between the supposed

illegal drug activity observed by Johnson and 3112 Crossgate;

the gulf between the two is bridged by Johnson’s statement

that it is common for drug traffickers to keep business records

and journals at their residences.

The affidavit’s reliance upon a belief that drug-related

materials may be found in the homes of those who sell drugs

elsewhere in lieu of articulable observations of drug

trafficking behavior at a residence does not per se condemn

the magistrate’s probable cause determination. In the past, we

have held that an observation of drug trafficking away from

a dealer’s residence can provide probable cause to search the

alleged dealer’s residence. United States v. Miggins, 302 F.3d

384, 393-94 (6th Cir. 2002). We have permitted searches of

a trafficker’s residence when the trafficker is observed dealing

drugs elsewhere, despite the attenuated connection between

the trafficking and the residence, because an officer’s

experience that drug dealers often store evidence of their

activities at their residences enhances the probability 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 that the incidents referred to in the affidavits took

place on the premises [(in the driveway of the residence or in

the defendant’s car)] rather than inside the house does not

invalidate the search of the house.”); United States v.

Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996) (finding

probable cause when affidavit attested to officer’s experience

18 United States v. Washington, et al. No. 03-3959

that “‘many drug traffickers utilize their homes to conduct

their illegal narcotics trafficking activities’”). Nonetheless,in

these types of cases we should be mindful that Gates’s

“totality of the circumstances” test requires us 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 observed in

Gates, tests and prongs have an unfortunate tendency to

develop a life of their own, and tend to draw more attention

to their individual characteristics than to the totality of the

circumstances.”).

We are presented with an altogether different set of

circumstances when the affidavit in question fails to

demonstrate that the suspect actually owns or lives at the

residence. The link between the suspect and the residence is

the key support for the inference that a residential search is

likely to turn up evidence of illicit drug activity. When that

link is missing, it is an impermissible logical leap to assume

that evidence will be found at a location where the suspect

does not reside. While it makes some logical sense that drug

dealers may maintain records and documents at their homes,

it is less reasonable that traffickers would keep records and

documents in places where they temporarily reside (visiting

a friend’s house or a motel) or where they are temporarily

guests (spending several hours at the home of an

acquaintance). It is notable that there is no comparable

inference in Johnson’s affidavit that drug dealers tend to keep

documents and records of their trafficking at any house where

police happen 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 “practical, common-sense”

manner, it is clear that there was a dramatic reduction in the

probability that evidence of drug trafficking would have been

found at 3112 Crossgate when the affidavit failed to draw the

critical link between the supplier’s activities outside the

residence and the residence itself. See United States v. Van
No. 03-3959 United States v. Washington, et al. 19

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

verification that defendant actually lived at the searched

residence “should have been included in the affidavit”).

Johnson’s affidavit stated that his supporting detectives

observed the unnamed supplier leaving the 3112 Crossgate

address on one single occasion, but the affidavit contains no

other information about the supplier’s connection to the

residence. Nor did the affidavit claim that Brown resided at

3112 Crossgate. At the time he produced the affidavit,

Johnson did not know, and consequently did not and could

not inform the court, whether the supplier lived at the

residence, was an occasional houseguest, or just visited 3112

Crossgate on the morning he was observed leaving the house.

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 research into

mortgage or phone records, or any other potential proof that

Washington lived or resided at 3112 Crossgate. See Miggins,

302 F.3d at 388 (affidavit drew link between defendants and

searched residence, even though no drug trafficking activity

occurred at the residence); United States v. Watkins, 179 F.3d

489, 493 (6th Cir. 1999) (affidavit clearly established that

residence was owned by defendant); Caicedo, 85 F.3d at 1193

(affidavit 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 actual residence); United States v. Schultz, 14

F.3d 1093, 1097 (6th Cir. 1994) (upholding search when there

were clear links between defendant and searched apartment;

the affidavit attested to the fact that the defendant resided in

the apartment, and automobiles registered to the defendant

were parked at the searched apartment complex); United

States v. Davidson, 936 F.2d 856, 857-58, 859-60 (6th Cir.

1991) (affidavit attesting to a widespread and thoroughly

documented pattern of drug trafficking activity clearly

identified that the suspect lived at the searched residence).

Furthermore, unlike many of our other decisions in this area,

Johnson’s affidavit failed even to identify the name of the

20 United States v. Washington, et al. No. 03-3959

individual who was presumed to live at 3112 Crossgate. Not

every affidavit and warrant must identify the suspect or name

the suspect as the owner of the searched property, but when

the only evidence making it probable that illicit materials will

be found at a particular residence is the assumption that drug

dealers tend to keep drugs, money, guns, and records at their

homes, it seems clear that there should be evidence that the

trafficker actually owns or resides at the 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 to

name a dealer or the owner of searched property, but only

when a confidential informant actually purchased drugs and

witnessed drug trafficking at the searched residence).

Johnson’s other ruminations in the affidavit about the

supplier’s connection to the residence and Brown’s

connections to the supplier’s alleged drug trafficking

constitute little more than speculation and fail to sustain the

legality of the search. Johnson’s observations of the Cadillac

outside 3112 Crossgate on two separate mornings did not at

all establish that the supplier resided at that address. Nor does

Johnson’s suggestion that the supplier registered the Cadillac

in Brown’s name to conceal his identity successfully show

that the supplier lived at 3112 Crossgate. Furthermore,

Johnson’s statement that the theft of a diamond ring and cash

from Brown “is indicative of suspects searching for narcotics

and large sums of cash,” J.A. at 40, is little more than

guesswork because the robbery may have occurred for myriad

reasons. This speculation is also irrelevant; the robbery

incident does nothing to establish that the supplier lived or

resided at 3112 Crossgate.

Considering the “totality of the circumstances” — the

dearth of observed drug trafficking activity at 3112 Crossgate,

the failure of the affidavit to prove that the supplier resided at

3112 Crossgate, the failure of the affidavit to identify the

supplier, and the lack of any additional evidence

demonstrating a probability that drug evidence would be

found at the residence — Johnson’s affidavit failed to
No. 03-3959 United States v. Washington, et al. 21

establish a fair probability that documents relating to drug

trafficking would be discovered at the 3112 Crossgate

residence. Therefore, the warrant was not supported by

probable cause, and the search cannot be justified on that

basis.

III. THE LEON GOOD-FAITH EXCEPTION

The majority errs by concluding that the good-faith

exception established in United States v. Leon, 468 U.S. 897

(1984), insulates the search from reproach. Leon articulated

the principle that the exclusionary rule does not operate “to

bar admission of evidence seized in reasonable, good-faith

reliance on a search warrant that is subsequently held to be

defective.” Van Shutters, 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 affidavit so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable.” Id. at 923 (emphasis added). Thus,

the inquiry is whether Johnson’s affidavit was so deficient in

establishing probable cause to search 3112 Crossgate that “a

reasonably well trained 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 —

where no criminal activity is observed at the searched

residence and the affidavit fails: 1) to identify the suspect;

and 2) to demonstrate that the suspect lives at the place to be

searched — is a novel question for this circuit. In different

factual circumstances, we have held that an officer’s reliance

on a warrant was objectively unreasonable when the warrant

failed to make a sufficient connection between a suspect, the

suspect’s illegal actions, the objects to be seized, and the

place to be searched. See Helton, 314 F.3d at 825 (“A

22 United States v. Washington, et al. No. 03-3959

reasonable officer knows that evidence of three calls a month

to known drug dealers from a house, a description of that

house, and an allegation that a drug dealer stores drug

proceeds with his brother and his brother's girlfriend (neither

of whom live at or are known to visit that house), falls well

short of establishing probable cause that the house contains

evidence of a crime.”); United States v. Weaver, 99 F.3d

1372, 1381 (6th Cir. 1998) (holding that “a reasonably

prudent officer would have sought greater corroboration to

show probable cause” when the affidavit did not indicate a

fair probability that a suspect was growing marijuana at a

particular residence); United States v. Leake, 998 F.2d 1359,

1367 (6th Cir. 1993) (rejecting application of Leon because “a

two-night, two-hour surveillance simply produced no

significant corroboration of the information’s claim of

marijuana trafficking”). 

The government unpersuasively suggests that several of our

cases mandate an outcome in its favor because those cases

apply the good-faith exception “despite the lack of any nexus

between the criminal activity and the place to be searched.”

Gov’t Br. at 34 (citing Van Shutters, 163 F.3d at 337-38;

Schultz, 14 F.3d at 1098; Savoca, 761 F.2d at 298). The

government’s misreading of these cases explains its

overstatement; in the cited cases, an identified suspect and a

strong and demonstrable connection between the suspect and

the place to be searched 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 or otherwise

determined that the suspect frequented the residence, and a

search of a different residence owned by the suspect turned up

incriminating evidence. Van Shutters, 163 F.3d at 334, 337.

We ruled that Leon preserved the fruits of the search. In

Schultz, an officer sought a warrant to search a safe-deposit

box based upon the intuition that documents and records of

drug distribution are often kept in such boxes. Schultz, 14

F.3d at 1097. We held that despite the lack of a nexus
No. 03-3959 United States v. Washington, 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 nexus between the

suspect and the safe-deposit box, a connection missing here.

See also Savoca, 761 F.2d at 298 (holding that affidavit was

not “so lacking in indicia of probable cause” when two known

bank robbers were observed staying at the motel room that

was searched). By contrast, Johnson’s affidavit does not

show in any meaningful fashion that the supplier was

connected to 3112 Crossgate in a way that would increase the

probability that documentary evidence would be discovered

there.

The majority’s belief 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 majority of the en

banc court upheld a search under Leon when an affidavit

stated merely that marijuana was observed near a residence

belonging to the defendants and that a road connected the

residence to the marijuana. Id. at 593. The Carpenter

majority discussed the applicability of Leon in cases when

“the affidavit contained a minimally sufficient nexus between

the illegal activity and the place to be searched to support an

officer’s good-faith belief in the warrant’s validity.” Id. at

596. The court concluded that the officers acted reasonably

in searching the Carpenters’ residence for evidence of

marijuana cultivation. Id.

 I continue to believe that Carpenter was wrongly decided,

id. at 601-04 (Moore, J., dissenting), but it is the law in this

circuit. Nonetheless, its holding does not guide this outcome

because of the differences between the two cases. The

“minimally sufficient” nexus of physical proximity between

the drugs and the residence that was the focal point in

Carpenter is not evident in this case. The majority in

Carpenter felt that an observation of marijuana growing

“near” the residence (about 900 feet away), as opposed to

“in,” “abutting,” or “within the curtilage of” the residence,

justified the officers’ reasonable reliance upon the warrant

24 United States v. Washington, et al. No. 03-3959

even though the proximity of the marijuana was too remote to

give probable cause to search. By contrast, Johnson did not

observe drug activity anywhere near 3112 Crossgate; the

purported trafficking occurred several miles from the home.

As a result, Johnson, unlike the officer in Carpenter, could

not rely on the propinquity of the drugs to the residence as an

indicator that drugs were likely to be discovered 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 their

residence. Relatedly, the warrant in Carpenter strongly

implied that the defendants owned the residence, but it did not

need to because the observation of the marijuana plants

“near” the residence provided the requisite nexus that made

belief in the warrant’s validity reasonable. Dissimilarly,

Johnson’s warrant made no mention of the supplier’s

connection to 3112 Crossgate, but such a connection was

absolutely necessary given that the supplier, as opposed to

some observation of physical proximity, served as the

primary link to the residence. 

Any reasonable officer would have known that probable

cause did not support the warrant because the affidavit’s

discussion of only a sparse and speculative connection

between the supplier and 3112 Crossgate highlighted its clear

deficiencies. As justification for the document search,

Johnson relied on his intuition and experience that those

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 Crossgate, both of which constitute fatal omissions.

Any reasonable officer would have known that it is illegal to

search a residence when it is not clear that the suspect lives or

resides there or conducts illegal drug activity there, because

there is not a high probability that the desired evidence will

be uncovered at that location. A reasonable officer would

have realized that, without more surveillance or research, he

or she could not determine whether the supplier owned the

residence at 3112 Crossgate, was an occasional houseguest,
No. 03-3959 United States v. Washington, et al. 25

or simply stayed at 3112 Crossgate the one time he was

observed leaving the house. Under such circumstances, a

reasonable officerwouldrecognize the diminished probability

of finding documentary evidence at 3112 Crossgate. 

Two additional facts reinforce the unreasonableness of

Johnson’s reliance upon the warrant. First, Johnson’s

affidavit stated that he had agreed to make a controlled buy of

a kilogram of cocaine, which he suspected would be provided

by the supplier. Johnson submitted the first affidavit and

obtained the first warrant before the buy occurred, and the

abandonment of the controlled buy suggests that the officers

acted with unnecessary haste when more investigation could

have been conducted. Second, it is impossible to ignore the

ease with which Johnson could have uncovered the supplier’s

connection to 3112 Crossgate. A simple public records

inquiry, further research into the name on the utilities

accounts registered at the address, or additional surveillance

would have provided clear evidence of whether the supplier

actually lived at 3112 Crossgate. The relative prolixity of the

affadavit (4 pages, single-spaced) does not remedy its failure

to provide easily acquired and vital 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

rejecting application of Leon even though affidavit was

twenty-seven pages long). It was unreasonable for Johnson

to rely on an affidavit lacking this critical information.

IV. CONCLUSION

In sum, I dissent because the majority’s holding further

erodes the fundamental protections against unreasonable

governmental intrusions promised by the warrant provisions

of the Fourth Amendment. By declaring that the officers

relied reasonably on the warrant when the underlying

affidavit drew no connection between the illegal activity and

the place to be searched or between the suspect and the place

to be searched, the majority vitiates the prophylaxis of the

search warrant requirement. In the triangulation between

26 United States v. Washington, et al. No. 03-3959

trafficking activity, a suspect, and a place to be searched, we

have previously permitted searches even though all three

points cannot be connected, but the majority unfortunately

and unnecessarily debilitates the Fourth Amendment by

validating a search in which neither the trafficking activity

nor the suspect are tied to the location to be searched.