Affidavit for search warrant failed to show PC for defendant’s house, and no GFE either

The affidavit for the search warrant of defendant’s house, as opposed to his office, was stale and it was speculative even as to extending good faith to it. United States v. Paymon, 523 F. Supp. 2d 584 (E.D. Mich. 2007):

The government points to a line of cases that rely on the abstraction that if someone is involved in drug trafficking, there is probable cause to search his residence because drug dealers tend to keep contraband or evidence of crimes in their residence. In Newton, the Sixth Circuit Court of Appeals found that the searches of the defendant’s four listed addresses were supported by probable cause despite the lack of a nexus because detailed evidence of Newton’s drug operations was provided to the state judge. 389 F.3d at 636. In Miggins, the finding of probable cause to search defendant’s actual residence was upheld by the Sixth Circuit even though defendant signed for a controlled shipment of drugs at a separate residence. 302 F.3d at 393. In Jones, the search warrant used to search defendant’s residence was upheld despite the fact that the control buys only took place in the driveway as opposed to inside the house. 159 F.3d at 975. In Caicedo, after being arrested for possessing blocks of cocaine, a search warrant was properly issued to search defendant’s residence despite the fact that there was no evidence linking the residence to drug trafficking. 85 F.3d at 1192-93.

Although it may be argued that the supporting affidavit included detailed evidence involving Paymon’s alleged drug trafficking, there is a key difference between this case and the line of cases cited by the government. In each of the cases, there was direct evidence prior to the search warrants issuing that the suspect was trafficking in drugs that directly led to the defendant’s arrest. In Newton, the defendant was arrested for driving to a rural residence and loading thirty-three bundles of marijuana into his car, afterwards the search took place. In Miggins, the defendant accepted a controlled package of cocaine delivered from a police officer posing as a Federal Express driver. In Jones, the defendant sold drugs to a confidential informant at least six times in the driveway of the residence. In Caicedo, the defendant was arrested after a legal search of his backpack turned up bricks of cocaine.

. . .

Unlike these cases, Paymon was not arrested for drug possession nor was their sufficient evidence to arrest Paymon on drug charges prior to the searches. Moreover, the only evidence contained within the affidavit placing Paymon in the presence of drugs was stale. Had the Government established through fresh evidence that Paymon had direct contact with drug trafficking, the lack of a nexus between his Riverfront Towers and the probability of finding contraband would not be at issue. Here the supporting affidavit was defective because the lack of a nexus was not alleviated by fresh information that Defendant was a drug trafficker. Under the totality of the circumstances test, this Court finds that the affidavit failed to provide a sufficient basis to find probable cause for a warrant to search Paymon’s Riverfront Towers residence.

. . .

Similar to Laughton the application simply listed the address of Paymon’s premises to be searched, a summary of the Special Agent’s professional experience, and the speculation that Paymon used the dock, not even his home, to launch his boat to illegally enter Canada. There is no modicum of evidence to connect the alleged criminal activity described in the affidavit to Paymon’s Riverfront Towers other than mere speculation that Paymon may have used the dock at the apartment complex to make his illegal entries into Canada. The affidavit, although detailed in terms of criminality and connections to the Southfield home, lacked the required nexus between criminality and the Riverfront address to such a degree to make a well trained officer would not be able to objectively and reasonably believe that the warrant was sufficient. Thus, Leon’s good faith exception does not apply.