CA6: Dist.Ct. erroneously suppressed over two kgs of heroin; the affidavit for SW showed a reasonable inference drugs would be found at home and GFE applied
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. …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)