E.D.Mich.: Def used two houses, and his drug operation was from one; the SW for the second was still valid under GFE despite lack of nexus

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.

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