Defendant conducted a drug operation from what the court called the 1st Premises, and he lived in the 2nd Premises, apparently avoiding keeping any drugs there. When he went out to do a drug deal, he’d stop at the 1st Premises. Nexus to the 2nd Premises was lacking for drugs, but the government gets the benefit of the good faith exception because of the search warrant for the second premises for records and proceeds, which was a valid inference. Motion to suppress denied. United States v. Myers, 2019 U.S. Dist. LEXIS 10600 (E.D. Mich. Jan. 23, 2019):
The rules for assessing the sufficiency of a search warrant affidavit are well known. The Court is limited to viewing “the four corners of the affidavit.” United States v. Church, 823 F.3d 351, 360-61 (6th Cir. 2016) (citing United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013)). But the Court does not scrutinize each line; instead it considers the totality of the circumstances that the affidavit presents. United States v. Brown, 732 F.3d 569, 573 (6th Cir. 2013). And it applies common sense and avoids picking at technicalities. Ibid. Under that approach, it is difficult to find facts in the affidavit that support a search of the 2nd Premises. The only mention of that dwelling is that Myers was seen entering as if he controlled the place, and that the cars he drove in his drug business were seen parked there on occasion.
Although the affidavit must be evaluated on what in contains, not what it omits, United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000), the comparison between the activity at the 1st Premises and the lack of any such activity at the 2nd premises shows what is lacking. That comparison is fair, as it is part of the total circumstances. Myers worked his drug business through the 1st Premises. He merely lived at the 2nd Premises. The only facts mentioned are that he drove there — without engaging in the cleaning maneuvers that characterized his arrivals at and departures from the 1st Premises — and his vehicles were seen parked on the driveway. He apparently did not spend much time at the 1st Premises, except when his retail business was up and running. There are no comparable facts about the 2nd Premises, where it appears that the defendant stayed for extended periods. Detective Otto said that he thought he would find evidence of drug trafficking at the 2nd Premises, but that was based on his speculation that some drug dealers use multiple locations. He was not able to point to any fact that the 2nd Premises was one of them.
The state magistrate apparently had some doubts about that conclusion as well. In the first search warrant for the 2nd Premises, he did not authorize the police to search for drugs or other contraband. Curiously, he did authorize a search for “[a]ll weapons used to protect controlled substances,” which seems to put the cart before the horse. If he could not find probable cause that drugs would be found on the premises, why would there be a likelihood that drug-protecting weapons would be there?
The inference sometimes cited in the appellate cases that drug dealers keep their stock and records where they live is derived from the idea that in an ongoing business, drug dealers must put those things somewhere. See Brown, 828 F.3d at 383 & n.2. But in this case, the affidavit contained facts that undercut, rather than supported, that inference. The 1st Premises, also a residence, was the proper subject of that inference. But without some “evidence that [the defendant] distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there,” id. at 382, the 2nd Premises became just another house on the block.
Because the affidavit did not contain facts from which one could find probable cause to believe that contraband or evidence of crime would be found at the 2nd premises, the state magistrate erred in authorizing the police to search it.
B. Good Faith
. . .
As discussed above, the search warrant affidavit in this case shows that Myers was involved in a continuous and ongoing drug trafficking business. That reasonable inference justified the probable cause finding for the search of the 1st Premises, which Myers does not challenge. And following McCoy, that is enough to find that the officers would not have known that the search warrant was illegal despite the magistrate’s decision. After all, the warrant authorized a search for records and proceeds, not the drugs themselves.
The difference between a “substantial basis” and a “minimally sufficient nexus” is fact based and not easy to articulate. And it is true that negating the exclusionary rule’s deterrent effect by allowing the police a near-miss safety valve dilutes the Fourth Amendment’s protections. But faithful application of Sixth Circuit precedent ordains the result in this case. The good faith exception to the exclusionary rule saves the evidence recovered in the search of the 2nd Premises. Likewise, the two statements Myers made at the 2nd Premises while under arrest, and after he was given Miranda warnings, will not be suppressed.
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)