E.D.Mich.: No PC for nexus to def’s house, and no GFE

The affidavit failed to show probable cause for nexus to defendant’s house. It was so devoid of probable cause that the good faith exception does not apply. United States v. Myles, 2018 U.S. Dist. LEXIS 69373 (E.D. Mich. Apr. 25, 2018):

Here, the record is devoid of any evidence, much less reliable evidence that Defendant uses his current residence for drug dealing. None of the confidential informants claimed that Defendant engaged in drug trafficking from his home or witnessed him sell drugs near his home. The majority of Tillman’s affidavit details information provided by CS1, however this information not only fails to provide a nexus between drug trafficking and Defendant’s current residence, it is also stale. “[S]tale information cannot be used in a probable cause determination.” United States v. Frechette, 583 F.3d 374, 377 (6th Cir. 2009). Evidence of drug trafficking becomes stale quickly “because drugs are usually sold and consumed in a prompt fashion.” Id. at 378. While CS1 asserted that photographs on Defendant’s Instagram page showed Defendant with drugs, a large amount of cash and high-end jewelry, these photographs were taken several months prior to the execution of the warrant and when Defendant resided in a different apartment. Similarly, in addition to a lack of nexus between Defendant’s purported criminal activity and his residence, CS3’s observation of Defendant selling heroin in an unidentified location some seven months before the execution of the search is stale information and cannot provide probable cause for this separate reason.

. . .

Here, the warrant is completely devoid of any facts suggesting that Defendant deals drugs, keeps contraband or other indicia of drug trafficking in his current residence. Tillman failed to surveil Defendant’s home other than to establish that on two occasions, he apparently slept at the apartment. Nor did Tillman attempt to set up any controlled purchases at or near the apartment. The affidavit before this Court can best be described as a fishing expedition based on speculation and conjecture. CS3’s observation that Defendant sold heroin seven months earlier at an unidentified location, Defendant’s 6 1/2 year-old conviction for selling heroin and his communications with suspected drug traffickers are not “probative of whether [Defendant] was using his current residence for drug trafficking.” Brown, 828 F.3d at 385.

Officer Tillman was required to make some attempt to connect the purported drug trafficking with the apartment and the Jeep. This he failed to do. As such, the affidavit was “so lacking in indicia of probable cause that Tillman’s belief in its existence was “entirely unreasonable.” Carpenter, 360 F.3d at 595. As such, application of the good faith exception is unwarranted here.