E.D.Ky.: SW application failed to show nexus to def’s house, and GFE can’t apply

This search warrant’s application failed to show nexus, even by inference. This is significant, and it makes it a “bare bones” affidavit not subject to the good faith exception. United States v. Spillman, 2015 U.S. Dist. LEXIS 128878 (E.D.Ky. September 25, 2015):

The affidavit states that in the twenty-four hours prior to submitting their petition NPD used a confidential informant “to make two controlled buys for quantities of Heroin from the above location.” (DE 21-2.) The use of the singular “location” here is key because this sentence is the only place the affidavit could be construed to link narcotics trafficking to anything other than the 114 Honeysuckle Court residence. Every other factual assertion is directly tied to the residence alone. (See, e.g., DE 21-2 Def.’s Ex. 2 at 2 (“behavior is consistent with that of residence selling narcotics”)(emphasis added).) As written, however, this lone sentence cannot be read as grounds for the inference the United States seeks. Though Defendants’ Persons and the two vehicles are listed “above” the information about controlled buys, only the residence is referenced directly above this statement and it is hardly reasonable to infer that a singular “location” intended to reference four separate areas. Had the affidavit offered that two controlled buys of Heroin were made “from the above location[s] [in transactions conducted by the persons to be searched],”this affidavit may have provided enough. That is not the case here.

Though this Court’s review is not rigid, only those inferences which can be reasonably made from the affidavit can establish probable cause. This affidavit “completely neglect[s] to indicate why the affiant believed that” the defendants or the vehicles had any connection with either the residence or the narcotics trafficking described therein. United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013). Consequently, the affidavit failed to provide the probable cause necessary to satisfy the Fourth Amendment warrant requirement. U.S. Const. amend. IV. Yet, this determination does not necessarily mandate suppression of the evidence at issue.

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A review of this Circuit’s precedents leads the Court to conclude that the United States cannot avoid exclusion through Leon’s good-faith exception. In Laughton, a majority of the panel rejected a good-faith argument put forth to justify reliance on an affidavit that claimed “the defendant ‘will keep controlled substances in his pants pockets and stashes around his home” without factual support and failed to connect “observed controlled narcotics purchases” with the place to be searched. 409 F.3d at 749. The affidavit here undoubtedly links observed narcotics purchases and other drug activity to the residence, but, as in Laughton, there is no link between any incriminating facts and the challenged search locations—the vehicles, and the Defendants’ persons.

Moreover, the evidence in this affidavit is weaker than the averments found insufficient to establish a nexus between the evidence sought and the defendant’s home in United States v. McPhearson. 469 F.3d 518, 526 (6th Cir. 2006). In McPhearson, the Government sought to base the requisite connection on the defendant’s arrest at his home in possession of crack cocaine. Id. The court held this bare fact inadequate to justify good-faith reliance. Id. If a (1) homeowner’s arrest (2) in their home (3) while in possession of narcotics, cannot be relied on to connect that home with narcotics evidence, a (1) drug purchase (2) at a home (3) with no identified owner, cannot connect two individuals and two vehicles to that purchase. The affidavit here neither contained facts sufficient to establish probable cause to search the challenged locations, nor incorporated claims which could justify good-faith reliance on the warrant. Thus, the United States cannot avoid suppression through resort to the Fourth Amendment’s Warrant Clause.