The good faith applies to the nexus argument here [which is also a probable cause question], so the question of probable cause for issuance of the warrant doesn’t even have to be decided [and how lazy is that?]. Here, there was an allegation of firearms and drugs, and defendant was a stable resident of the house, but the information was eight months old. It’s not stale as to the firearms because firearms are commonly kept [even though it would almost certainly be stale as to the drugs alone]. Also, defendant was a stable resident at the house and that heightened the likelihood the stuff would still be there. United States v. Powell, 2015 U.S. App. LEXIS 3816 (6th Cir. March 9, 2015):
The good-faith standard is “less demanding” than the “threshold required to prove the existence of probable cause.” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en banc) (citation omitted). Thus, the good-faith exception applies where “the affidavit contain[s] 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 (citations omitted); see also United States v. Laughton, 409 F.3d 744, 750 (6th Cir. 2005) (suggesting that the good-faith exception applies when the affidavit underlying the warrant provides “some connection, regardless of how remote it may have been, between the criminal activity at issue and the place to be searched”).
The good-faith exception applies in this case. The affidavit created a minimally sufficient nexus between the drug and firearm activity and the Grandmont residence for the executing agents to reasonably believe that the residence contained evidence of drug and firearm offenses. First, the agents had reason to believe that Powell resided at the Grandmont property because he listed it as his address, maintained its electric service in his name, and frequently parked two of his cars there. R. at 70. Also, the affidavit states that a controlled buy transpired between Edwards and a confidential informant at that address on September 30, 2010. During this transaction, Edwards briefly entered the Grandmont residence and, upon exiting, supplied the confidential informant with two ounces of heroin. R. at 68; see also United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (“Commission of a drug transaction outside of a house and one participant’s walking back into the house … plainly demonstrate[s] a sufficient nexus with the house.”). Further, the affidavit states that Powell discussed both selling heroin to Edwards on September 21, 2010 and buying marijuana from Edwards on September 25, 2010. R. at 66-67. Thus, because the facts indicated that Powell lived at the Grandmont property, the agents could have reasonably believed that he was using his “home[] to store drugs and otherwise further [his] drug trafficking.” United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008). Additionally, the affidavit states that, during a conversation on December 6, 2010, Williamson told Edwards that he wanted to retrieve a bag of guns that Edwards was storing at “that house,” which Special Agent Koss understood as a potential reference to the Grandmont property. See R. at 68-70; see also United States v. Rodriguez-Suazo, 346 F.3d 637, 644 (6th Cir. 2003) (citation omitted) (internal quotation marks omitted) (“The issuing judge or magistrate may give considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found and is entitled to draw reasonable inferences about where evidence is likely to be kept.”). Also, we have recognized that “firearms are often used by narcotics traffickers for protection, and people generally store their firearms at home.” United States v. Chapman, 112 F. App’x 469, 472 (6th Cir. 2004). Accordingly, it was objectively reasonable for the agents to believe that the Grandmont residence contained evidence of drug and firearm offenses.
Powell argues that the affidavit failed to create a minimally sufficient nexus with the Grandmont residence because it had gone stale by the time the agents executed the search. To support this argument, Powell notes that the agents executed the search warrant approximately eight months after some of the key drug activity detailed in the affidavit.
We consider four factors when analyzing whether an affidavit is stale: (1) whether the crime is transitory or continuing; (2) whether the criminal is nomadic or stationary; (3) whether the thing to be seized is perishable or durable; and (4) whether the place to be searched is a forum of convenience or a secure operational base. See United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir. 2006).
Here, the balance of the staleness factors weighs in the United States’ favor. The first factor may favor Powell somewhat. Although the affidavit purports to describe a continuing drug ring, the vast bulk of the activity relating to the Grandmont residence took place in the fall of 2010. See R. at 65-67. Factor two, however, favors the United States. The affidavit’s averments support a reasonable belief that Powell was a stable resident at the Grandmont property. As for factor three, the warrant targeted documentary and physical evidence of drug activity, including firearms and ammunition. Although firearms are transferrable, we have nevertheless stated that they “are durable goods and might well be expected to remain in a criminal’s possession for a long period of time.” United States v. Pritchett, 40 F. App’x 901, 906 (6th Cir. 2002); see also United States v. Vanderweele, 545 F. App’x 465, 469-70 (6th Cir. 2013) (holding that a seven-month delay in executing a search warrant for a silencer did not render it stale, partly because “a silencer is like a gun, easily transferrable, but more commonly kept by its owner for a long time”). The final factor also favors the United States. The agents searched Powell’s home, which is more like a secure operational base than a mere forum of convenience. See United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001) (citation omitted) (internal quotation marks omitted) (“The place to be searched was the defendant’s home, suggesting that there was some permanence to the defendant’s base of operation.”). Accordingly, despite the eight-month time lag, the affidavit was not sufficiently stale to vitiate the minimally sufficient nexus between the Grandmont residence and the drug and firearm activity the affidavit outlines.
