E.D.Mich.: Attempt to show nexus was “bare bones,” and GFE doesn’t apply

Defendant was suspected of a robbery, and he had some thin connection to a house he’d been kicked out of because of a domestic dispute. He’d been seen taking the trash out and his car was there once. The court concludes he was no more than a guest, and the affidavit is truly “bare bones” and doesn’t show any nexus to the house to find evidence of the robbery. And, it is so “bare bones” the good faith exception doesn’t apply. United States v. Fritts, 2016 U.S. Dist. LEXIS 170360 (E.D.Mich. Dec. 9, 2016):

To meet the nexus requirement, “[t]he connection between the residence and the evidence of criminal activity must be specific and concrete, not ‘vague’ or ‘generalized.'” United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016). The affidavit must provide sufficient facts for why the officer believes the evidence is expected to be found in the place to be searched rather than some other location. Id.

The affidavit provided no reason to believe that the items being sought would be found in the house. First, the affidavit does not contain evidence to establish probable cause on the nexus issue. The Sixth Circuit in United States v. Brown stated that “[w]e have never held, however, that a suspect’s status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home” and that to establish a nexus between evidence in a drug case and a residence, a sufficient affidavit required “some reliable evidence connecting the known drug dealer’s ongoing criminal activity to the residence.” 828 F.3d at 383.

While that case dealt with drug trafficking, it is instructive in this case where the affidavit does not contain any facts to link the single alleged incident of robbery to the alleged residence of the Defendant. There are no observations of any of the items to be found at the residence or any indication in the affidavit that Defendant would have items from a robbery in the Asbury residence. Rather, the only observations of the Defendant at the residence contained in the affidavit do not establish any link whatsoever between the robbery and the evidence and the residence. There is nothing presented in the affidavit to connect the crime alleged and the location to be searched to suggest that evidence would be likely to be found in the house, rather than in another location like Defendant’s car.

Further, the nexus argument presented by the Government is not persuasive since the affidavit does not even provide evidence to support the conclusion that Defendant resided at the Asbury house. The only evidence presented to link Defendant and the house is that Defendant was observed taking trash out and returning to the house, the presence of a car that Defendant is “known to drive,” but with no factual support provided, parked in the driveway, and a domestic dispute report made by a woman, who identified herself as Defendant’s girlfriend, from May 22, 2016 where she indicated that Defendant lived at the Asbury house with her. These are all insufficient to support an inference that Defendant resided at the house. First, the mere fact that Defendant was seen taking out trash and entering the house is not any more indicative of Defendant being a visitor than it is of Defendant residing at the house. Second, while the affidavit states that a car that Defendant was “known to drive” was seen parked in the driveway, the affidavit does not establish how the officer knew that Defendant drove that car. While the Government argued at the hearing that the officer gained that knowledge from extensive interviews of witnesses and former co-workers of Defendant at the Dollar Store, there is no indication of this in the four corners of the affidavit, and rather it is presented as an ad hoc, unsupported conclusion.