The district court suppressed over two kilos of heroin finding that the affidavit for search warrant didn’t show probable cause and nexus to the defendant’s house. The Sixth Circuit reversed on both the probable cause and nexus issue and it found that the officers reasonably relied on the warrant for application of the good faith exception. There was a reasonable inference that drugs would be found in the home of a reputed drug dealer. United States v. McCoy, 2018 U.S. App. LEXIS 26859 (6th Cir. Sep. 20, 2018):
One important inference that a reviewing court may consider is that “it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there.” United States v. Williams, 544 F.3d 683, 686-87 (6th Cir. 2008). Our caselaw delineates when this inference may be applied to drug dealers—that is, when one can reasonably infer that “drug contraband is likely to be found inside drug traffickers’ homes.” White, 874 F.3d at 500 (citing Williams, 544 F.3d at 687). In United States v. Frazier, we clarified that “the allegation that the defendant is a drug dealer, without more, is insufficient to tie the alleged criminal activity to the defendant’s residence.” 423 F.3d at 533 (citing United States v. Savoca, 761 F.2d 292, 295 (6th Cir. 1985)). Nor can the government establish this tie by showing evidence of a single instance of the defendant’s having dealt drugs away from his home. Peffer v. Stephens, 880 F.3d 256, 273 (6th Cir. 2018), petition for cert. filed (May 23, 2018) (No. 17-1598) (“[W]hen drugs are used in the commission of a distribution offense, the distributed drugs are no longer in the possession of the suspected distributor.”). So to infer a fair probability that a defendant’s residence may contain evidence of drug trafficking, “[t]he affidavit … must establish some other reason to believe that drugs or other evidence of crime [will] be found in the suspect’s residence.” Id. As Frazier recognized, however, a link between the drug dealer’s activities and his home that would be insufficient to establish probable cause may suffice to establish good-faith reliance on the warrant. 423 F.3d at 537 (holding that even though evidence of a defendant’s having dealt drugs from his former residence could not establish probable cause to search his current residence, the good-faith exception to exclusionary rule applied because “a reasonably well-trained officer could infer that a drug dealer who kept drugs in his former home would also keep drugs in his current home”).
To infer permissibly that a drug-dealer’s home may contain contraband, the warrant application must connect the drug-dealing activity and the residence. Typically, this will require some “facts showing that the residence had been used in drug trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the residence.” Brown, 828 F.3d at 383. Many of our cases provide examples. See, e.g., Carpenter, 360 F.3d at 595-96 (finding sufficient basis for Leon good-faith exception when affidavit explained that “marijuana was growing ‘near’ the residence and that ‘there is a road connecting’ the residence and the marijuana plants”); White, 874 F.3d at 500 (applying inference when officers recorded a controlled buy from the defendant in the driveway of the residence fewer than seventy-two hours before the affidavit was executed); United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (applying inference because reliable confidential informant had “observed someone come out of [the defendant’s] residence, engage in a drug transaction, and then return into the residence”).
But “facts showing that the [defendant’s] residence had been used in drug trafficking” are not always necessary for application of the inference that drug contraband will be found in the drug dealer’s home. See Brown, 828 F.3d at 384 n.2. Evidence of a defendant’s ongoing course of unlawful conduct may make it reasonable to conclude that he keeps evidence of his illegal scheme in his home. Indeed, our cases have long established that “probable cause generally exists to search for the fruits and instrumentalities of criminal activity at the residence of a drug dealer with continual and ongoing operations.” United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004), vacated on other grounds, 546 U.S. 803, 126 S. Ct. 280, 163 L. Ed. 2d 35 (2005); see United States v. Bethal, 245 F. App’x 460, 467 (6th Cir. 2007) (explaining that evidence that a defendant “is a drug dealer with ‘continual and ongoing operations’ in and of itself creates probable cause to search his home”). When a warrant application presents reliable evidence that a drug-trafficking operation is ongoing, “the lack of a direct known link between the criminal activity and [dealer’s] residence, becomes minimal.” Newton, 389 F.3d at 635-36 (citing United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001)).
Under this continual-and-ongoing-operations theory, we have at times found a nexus between a defendant’s residence and illegal drug activity with no facts indicating that the defendant was dealing drugs from his residence. …