E.D.Mich.: Affidavit for SW was “bare bones” so no GFE; Brandeis quoted

The affidavit for the search warrant for defendant’s home proved to be “bare bones” and showed no probable cause or nexus to crime whatsoever. Accordingly, the good faith exception doesn’t even apply. The court cites Brandeis’s 1928 Olmstead dissent. United States v. Nabor, 2019 U.S. Dist. LEXIS 149313 (E.D. Mich. Sept. 3, 2019) [What is more telling is that the good faith exception has caused woefully insufficient affidavits to cause real search warrants to issue. This is a good example.]:

As to [the] Shirley Lane [address], officers did not see any illegal activity much less any evidence of drug activity. Rather, they saw an absence of activity — no cars, no people coming in and out, no drug purchases, no confidential informant information, no prior search which showed drugs. Officers simply saw some shipping notices and the residence appeared unoccupied. Again, the fact that a house has shipping notices on it is not evidence of illegal activity.

To be sure, the affidavit contains a lot of detail as to the drug activities of Alvarez-Torres. It contains some detail as to Acosta-Barrera and Flores-Hernandez’s connection to drug activities and provides a connection with defendants and Shirley Lane. However, the affidavit has no details which would support a finding that evidence of drug activity will be found at Shirley Lane. The facts related to Shirley Lane are not criminal. In other words, it is “bare bones” as to Shirley Lane. Under these circumstances, the good faith exception does not apply because it is objectively unreasonable to rely on the information as to Shirley Lane to believe that probable cause existed to search the residence.



The Court is mindful that as a result of this decision the government will likely have to abandon the prosecution of this case. However unpleasant that may be, at the end of the day the Constitution and rule of law must prevail. As Justice Brandeis said in his famous dissent in Olmstead:

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.

Olmstead v. United States, 277 U.S. 438, 468, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting)

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