UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA

Plaintiff,

v. Case No. 09-CR-20191

LARRY MELL McCREARY,

Defendant.

___________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS

Pending before the court is Defendant’s “Motion to Suppress Evidence,” filed on

July 13, 2009. The matter has been fully briefed, and a hearing on the motion was held

on September 2, 2009. For the reasons stated below, the court will deny Defendant’s

motion.

I. BACKGROUND

Defendant is charged with being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). (Indictment at 1.) The charges arise out of the execution of a

search warrant by the Detroit Police Department at 5621 Rogers on April 2, 2009. 

(Def.’s Mot. ¶ 2; Govt.’s Ex. 1.) Defendant resided in a bedroom at this address and

was present during the search. (Def.’s Resp. to 8/12/09 Order.) During the execution

of the search warrant, the police found a firearm, which serves as the basis for the

Defendant’s indictment. (Def.’s Mot. ¶ 2; Def.’s Ex. 2.) 

On April 2, 2009, a Wayne County magistrate judge issued a search warrant for

5621 Rogers in order to seize narcotics and related materials. (Govt.’s Ex. 2.) A Detroit

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police officer signed a three-paragraph affidavit in support of the issuance of the

warrant. (Govt.’s Ex. 1.) The first paragraph of the affidavit described the officer’s

qualifications, including over twenty-two years as a police officer and twelve years in the

Narcotics Division. (Id.) The affidavit stated that the officer has “received specialized

training in undercover techniques and investigative skills.” (Id.) It further goes on to

note that the officer “has participated in numerous narcotic raids and/or investigations

where illegal narcotics were confiscated.” (Id.)

The second paragraph of the affidavit, which forms the basis for the defendant’s

argument regarding lack of probable cause, states:

On April 2, 2009, affiant set up fixed surveillance at 5621 Rogers, while at

the location affiant observed a Mexican male walk up to the side of the

location on the alley side of the dwelling and reach through a vent and

place what appeared to be money and then grab a small item out of the

vent and walk away. Affiant then observed a black female walk to the

same side of the dwelling and observed the same transaction. While

continuing fixed surveillance affiant observed a white female conduct the

same [transaction] as the other persons. The white female (name and

dob given upon request), who was stopped and questioned [about] the

nature of being a[t] 5621 Rogers and stated that they were out of cocaine

but have heroin and marijuana. Based on affiant’s experience in drug

trafficking and sale affiant believes drugs are being sold at this location. 

Affiant also found that this location at 5621 Rogers has a narcotics

complaint# A09-386.

(Id.)

Finally, the affidavit offers the officer’s conclusion that there is probable cause to

find narcotics at the address based on the officer’s “experience, training, and the above

information.” (Id.) Defendant argues that this affidavit was insufficient to support the

issuance of a search warrant and that the evidence seized during the execution of the

warrant should therefore be suppressed. (Def.’s Mot. ¶ 2.)

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The Government does not contest this conclusion. At the hearing on the motion,

the Government’s position was that Defendant had both a subjective and objective

expectation of privacy in the house. See United States v. Washington, 380 F.3d 236,

240 n.3 (6th Cir. 2004) (“[T]he government can waive the standing defense by not

asserting it.”)

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II. DISCUSSION

A. Reasonable Expectation of Privacy

In Defendant’s motion to suppress, he “provided no statement explaining his

presence in the subject house, how he might allege that he had any expectation of

privacy therein, or how that expectation of privacy might be one that society is prepared

to accept as legitimate.” (8/12/09 Order at 3.) Thus, in the interest of judicial economy,

the court issued an order requiring Defendant to file a supplemental statement

demonstrating that “he had, at the time of the search, a reasonable expectation of

privacy in the place searched.” (Id.) On August 13, 2009, Defendant filed a response

indicating that he had “standing” because he lived in a bedroom at the house that was

searched. In the response and at the hearing, Defendant pointed to evidence which

demonstrated that he lived there. Accordingly, the court finds that Defendant had a

reasonable expectation of privacy in the place searched.1

 See United States v.

Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988).

B. Probable Cause

“The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

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Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. Amend. IV. 

In determining whether an affidavit establishes probable cause,

[t]he task of the issuing magistrate is simply to make a practical, commonsense 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 a magistrate had a substantial basis for concluding that

probable cause existed.

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

462 U.S. 213, 238-39 (1983)) (alteration in original). An affidavit must contain

“particularized facts,” United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006),

and a “nexus between the place to be searched and the evidence sought,” Carpenter,

360 F.3d at 594 (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.

1998)). Courts must “insist that the magistrate perform his ‘neutral and detached’

function and not serve merely as a rubber stamp for the police.” McPhearson, 469 F.3d

at 524. However, a magistrate’s probable cause determination “should be paid great

deference by reviewing courts.” Gates, 462 U.S. at 236. Indeed, “‘line-by-line scrutiny

[of an underlying affidavit is] . . . inappropriate in reviewing [a] magistrate[‘s] decisions,’”

and “‘after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the

form of de novo review.’” United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en

banc) (quoting Gates, 462 U.S. at 246 n.14, 236) (alteration in original).

Defendant argues that the affidavit does not support a finding of probable cause.

(Def.’s Mot. at 4.) Specifically, Defendant argues that the affidavit lacks any information

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about the initial informant and that the observations of the affiant, standing alone, are

insufficient. (Def.’s Mot. at 4.) The Government argues that four aspects of the affidavit

support the magistrate’s determination of probable cause: (1) the police officer’s

observations as detailed in the affidavit, (2) the statement of the third buyer that “they

were out of cocaine but have heroin and marijuana,” (3) the prior narcotics complaint at

the residence, and (4) the experienced police officer’s conclusion about the nature of

these events. (Govt.’s Resp. at 11-12.)

In this case, “the existence of probable case is an extremely close call.” 

Washington, 380 F.3d at 240. Defendant points out that the affidavit was lacking in

evidence of criminal activity and perhaps further investigation was warranted. But the

court’s job when reviewing a magistrate’s determination of probable cause is not to

determine whether, in its opinion, the police could have performed the investigation

differently. Allen, 211 F.3d at 975-76 (The “affidavit is judged on the adequacy of what

it does contain, not on what it lacks, or on what a critic might say should have been

added . . . But while better investigative work is preferable to merely adequate

investigation, it is not the constitutional measure of probable cause.”). Rather, the court

must determine whether the affidavit provided the magistrate with a “substantial basis”

for concluding there was probable cause that a search of the residence would yield

evidence of a crime. Carpenter, 360 F.3d at 594. 

The Government relies on two cases from other Circuits involving hand-to-hand

transactions in support of its argument that the magistrate did have a “substantial

basis.” See United States v. Persaud, 167 F. App’x 920 (3d Cir. 2006) (finding probable

cause to arrest the defendant when officers observed two hand-to-hand transactions

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that officers believed were drug transactions, and officers stopped one of the parties to

the transaction, who then stated that she possessed crack cocaine); United States v.

Funches, 327 F.3d 582 (7th Cir. 2003) (finding probable cause when officers observed

individuals drive to an alley, wait while one of the individuals drove to another location,

and then upon that individual’s return, exchange shopping bags in the alley). However,

a case from the Sixth Circuit, is more closely analogous to the present facts. See

United States v. Rudolph, No. 93-2392, 1994 WL 592932 (6th Cir. Oct. 27, 1994). In

Rudolph, officers received a tip from a reliable source that a heroin operation had just

begun at a residence. Id. at *1. Conducting surveillance, the officers repeatedly

observed individuals “walk up to the house, pass currency through a mail slot in the

metal-grate front door, and receive small packages in return.” Id. They stopped one of

the individuals after leaving the house and found heroin. Id. Officers also observed the

Defendant’s car parked in front of the house and were aware that he had at least three

prior narcotics convictions. Id. at *5. The allegation concerning the recency of the

operation was confirmed by the electricity being established in Defendant’s name a

month earlier. Id. The court found that the affidavit was sufficient to establish probable

cause, holding that the “agents’ subsequent surveillance of that residence, and not the

tip alone, provided the actual probable cause supporting the warrant.” Id.

The present case has many similarities to Rudolph. The observations of the

officers are nearly identical in that in both cases officers observed people going up to a

house, exchanging money for a small item through a small opening in the house, and

then immediately leaving. Arguably, the circumstances in the present case are even

more suspicious than in Rudolph, given that a vent on the side of the house was being

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used, instead of the typical place where visitors are greeted, the front door, as in

Rudolph. Also, in both cases a “police veteran with considerable experience in

narcotics investigation, stated in the affidavit that he observed suspicious activity,

consistent with drug trafficking, at the house on several occasions.” Id. And in both

cases, police were aware of prior drug activity. In Rudolph, the defendant, whose car

was parked in front of the house, had three prior drug convictions. Id. In the present

case, the residence had a prior narcotics complaint. Thus, three of the Government’s

bases for finding probable cause in the present case are nearly identical to the bases in

Rudolph. 

The present case is not completely analogous to Rudolph though. In Rudolph,

the officers actually found drugs on the person that they stopped leaving the house after

observing the suspicious transaction. Id. at *1. Here, the affidavit does not state that

drugs were found on the woman that the officers stopped, but instead merely alleges a

somewhat unreliable statement by the woman that “they were out of cocaine but have

marijuana and heroin.” (Govt.’s Ex. 1.) Thus, the Government’s final basis, while

possessing some similarities to Rudolph, provides less support for a finding of probable

cause because here no drugs were actually found. Another important distinction is that

in Rudolph the officers were acting on a tip from a reliable informant, whose tip was

corroborated by the fact that the electrical service had recently been established at the

house. Rudolph, 1994 WL 592932, at *1. Here, the affidavit does not provide any

information about the initial tip or what led the officers to the residence in the first place. 

While not fatal, these differences do make the existence of probable cause in the

present case “an extremely close call.” Washington, 380 F.3d at 240. 

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 When presented with a close call, the Sixth Circuit has assumed without

deciding that there was no probable cause when the Leon good-faith exception clearly

applied. Id. (“[G]iven our conclusion that the good-faith exception clearly applies, we

will assume without deciding that probable cause did not exist.”). Although the court is

inclined to find that the magistrate had a “substantial basis” for finding probable cause,

the court will nevertheless assume that there was no probable cause because, as

discussed below, the Leon good-faith exception clearly applies. See id.

C. The Good-Faith Exception to the Exclusionary Rule

Evidence seized without probable cause violates the Fourth Amendment and

may be suppressed by the reviewing court. “When evidence is obtained in violation of

the Fourth Amendment, the judicially developed exclusionary rule usually precludes its

use in criminal proceeding against the victim of the illegal search and seizure.” 

Carpenter, 360 F.3d at 595 (quoting Illinois v. Krull, 480 U.S. 340, 347 (1987)). 

However, “[t]he fact that a Fourth Amendment violation occurred . . . does not

necessarily mean that the exclusionary rule applies.” Herring v. United States, 129 S.

Ct. 695, 700 (2009). Even if a reviewing court concludes that a warrant lacked probable

cause, courts 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)).

The “good-faith inquiry is confined to the objectively ascertainable question

whether a reasonably well trained officer would have known that the search was illegal

despite the magistrate’s authorization.” United States v. Higgins, 557 F.3d 381, 391

(6th Cir. 2009) (quoting Leon, 468 U.S. at 922-23 n.23). Pursuant to Leon, the Sixth

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Circuit has ruled that the 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” affidavit; (4) where the warrant is so facially deficient that the

executing officers cannot reasonably presume it to be valid.

Washington, 380 F.3d at 241. The standard for the good-fath exception is “less

demanding” than “the one involved in determining whether the affidavit provided a

‘substantial basis’ for the magistrate’s conclusion of probable cause.” McPhearson, 469

F.3d at 526.

Defendant argues that the good faith exception should not apply because the

affidavit is “bare bones.” (Def.’s Reply at 4.) An affidavit is “bare bones” if it “states

suspicions, beliefs, or conclusions, without providing some underlying factual

circumstances regarding veracity, reliability, and basis of knowledge.” United States v.

Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). Here, the affidavit is not bare bones. The

affidavit would have been bare bones in the present case if it only contained paragraphs

one and three, i.e. a statement regarding the officer’s qualifications and experience and

then his conclusion that based on this experience, there is probable cause to believe

narcotics will be found at the residence. The affidavit, however, did not merely contain

conclusions but instead also contained the underlying factual basis for those

conclusions. Namely, the observations of the suspicious transactions on the side of the

house through the vent, the woman’s statements regarding the presence of heroin and

marijuana in the residence, and the fact that there had been a previous narcotics

complaint at the house. (Govt.’s Ex. 1.) Thus, the affidavit is not “bare bones.” 

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Higgins, 557 F.3d at 390 (finding the affidavit to be “weak,” but not “bare bones”).

Defendant appears to be instead arguing that “the affidavit was so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable.” Washington, 380 F.3d at 241. Thus, the court’s “inquiry is . . . whether

a reasonably well trained officer would have known that the search was illegal despite

the magistrate’s authorization.” Higgins, 557 F.3d at 391 (quoting Leon, 468 U.S. at

922 n.23). The court finds that a reasonable officer would not have known that the

search was illegal despite the magistrate’s authorization. See id. As explained above,

the affidavit presents a close case regarding the existence of probable cause. Because

it is such a close case, the affidavit cannot be said to be “so lacking in indicia of

probable cause as to render official belief in its existence entirely unreasonable.” See

Washington, 380 F.3d at 241. Indeed, the Sixth Circuit “has applied the good faith

exception to warrants supported by far less information than that set forth [here.]” Van

Shutters, 163 F.3d at 338. For example, in Higgins, officer reliance on a magistrate’s

determination of probable cause was deemed reasonable. Higgins, 557 F.3d at 391. 

There, the affidavit was made by an officer who was told by a second officer of

statements made by persons recently arrested regarding the source of their drugs and

that these statements were corroborated by the second officer driving the persons by

the alleged source’s house. Id. at 385. In the present case, not only did the affidavit

contain statements alleging drug activity at the house as in Higgins, but it also described

first-hand observations of an experienced officer of highly suspicious behavior for which

there is no plausible innocent explanation. In addition, the house was known to have

been involved in narcotics activity in the past. These facts arguably create a

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“substantial basis” for a magistrate’s determination of probable cause, but they most

certainly provide enough of an indicia of probable cause to render objectively

reasonable an officer’s reliance on a magistrate’s issuance of a warrant. See id. at 391. 

Defendant also argues that the affidavit contains false information. (Def.’s Reply

at 2, 4.) The affidavit states “name and dob given upon request” regarding the woman

that the officers stopped leaving the house. (Govt.’s Ex. 1.) Defendant argues that this

was a false statement because the affiant only had the name and age of that person. 

(Def.’s Reply at 4.) However, the falsehood must be material to invalidate a warrant,

see United States v. Campbell, 878 F.2d 170, 172 (6t Cir. 1989), and whether the officer

merely had the age instead of the “dob” is not material. The issuing magistrate would

not be misled by this statement. See Leon, 468 U.S. at 914. Indeed, this type of de

minimis discrepancy is not the type of deliberate falsehood for which there is an

exception to the Leon rule. See generally Herring, 129 S. Ct. 695 (“To trigger the

exclusionary rule, police conduct must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price

paid by the justice system.”).

Accordingly, the Leon good-faith exception applies, and the court will therefore

not apply the exclusionary rule to the evidence seized pursuant to the search warrant in

this case.

IV. CONCLUSION

IT IS ORDERED that Defendant’s “Motion to Suppress Evidence” [Dkt. # 13] is

DENIED. 

 s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: September 16, 2009

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I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, September 16, 2009, by electronic and/or ordinary mail.

 s/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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