CA6 (en banc): The question of PC isn’t even close, and the GFE applies

The question of probable cause isn’t even close, and the good faith exception applies. United States v. Christian, 2019 U.S. App. LEXIS 16322 (6th Cir. May 31, 2019) (en banc). (The dissent is concerned about use of criminal history as being part of the justification for probable cause because of its age, and that a prior case should be overruled):

Probable cause therefore existed, and it is not a close call. The opposite conclusion can be reached only by engaging in the kind of “hypertechnical[,] … line-by-line scrutiny,” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004), of the affidavit explicitly forbidden by the Supreme Court, see Gates, 462 U.S. at 235-36, 245 n.14. In Wesby, the Court explained that “this kind of divide-and-conquer approach is improper,” because “[a] factor viewed in isolation is often more ‘readily susceptible to an innocent explanation’ than one viewed as part of a totality.” 138 S. Ct. at 589 (quoting Arvizu, 534 U.S. at 274). That is the case here too, where alone some parts of the affidavit might be criticized but taken together they point clearly to one conclusion: that Christian was dealing drugs from 618 Granville.

We are accordingly compelled to hold that there was probable cause in this case, especially given the undemanding character of the probable-cause standard and the deferential nature of our review. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Tagg, 886 F.3d at 585 (quoting Wesby, 138 S. Ct. at 586). Time and again the Supreme Court has emphasized that “[p]robable cause ‘is not a high bar'” to clear. Wesby, 138 S. Ct. at 586 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). Where, as here, a magistrate has issued a search warrant based on probable cause, we “do[] not write on a blank slate.” Tagg, 886 F.3d at 586. Rather, the magistrate’s probable-cause determination “should be paid great deference,” Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)), and we overturn that decision only “if the magistrate arbitrarily exercised his or her authority,” United States v. Brown, 732 F.3d 569, 573 (6th Cir. 2013) (citing United States v. Greene, 250 F.3d 471, 478 (6th Cir. 2001)). We are “not permitted to attempt a de novo review of probable cause.” Tagg, 886 F.3d at 586 (citing Gates, 462 U.S. at 238-39; United States v. King, 227 F.3d 732, 739 (6th Cir. 2000)).

Also in the dissent, United States v. Laughton, 409 F.3d 744 (6th Cir. 2005), should be overruled. But still, considering the lack of closeness of the decision, why did this go en banc?

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