           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2       United States v. Washington, et al.               No. 03-3959
        ELECTRONIC CITATION: 2004 FED App. 0276P (6th Cir.)
                    File Name: 04a0276p.06                                                        _________________
                                                                                                        COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED:         Kevin W. Kelley, UNITED STATES
                  FOR THE SIXTH CIRCUIT                                    ATTORNEY, Columbus, Ohio, for Appellant. Lewis E.
                    _________________                                      Williams, Jr., Columbus, Ohio, for Appellees. ON BRIEF:
                                                                           Kevin W. Kelley, UNITED STATES ATTORNEY,
 UNITED STATES OF AMERICA ,       X                                        Columbus, Ohio, for Appellant. Lewis E. Williams, Jr.,
          Plaintiff-Appellant,     -                                       Columbus, Ohio, John Boyd Binning, Heather R. Zilka,
                                   -                                       Columbus, Ohio, for Appellees.
                                   -  No. 03-3959
           v.                      -                                         BOGGS, C. J., delivered the opinion of the court, in which
                                    >                                      QUIST, D. J., joined. MOORE, J. (pp. 13-26), delivered a
                                   ,                                       separate dissenting opinion.
 DENNIS WASHINGTON ; and           -
 EBONY BROWN ,                     -                                                              _________________
        Defendants-Appellees. -
                                   -                                                                  OPINION
                                  N                                                               _________________
      Appeal from the United States District Court
     for the Southern District of Ohio at Columbus.                          BOGGS, Chief Judge. The United States appeals the
   No. 03-00009—Algenon L. Marbley, District Judge.                        district court’s granting of the defendants’ motion to suppress
                                                                           evidence. The defendants, Dennis Washington and Ebony
                      Argued: June 9, 2004                                 Brown, had been indicted on several counts after police
                                                                           officers executed a search warrant at 3112 Crossgate Road1
             Decided and Filed: August 23, 2004                            and found narcotics and firearms. Although the officers had
                                                                           obtained a warrant, the defendants filed a motion to suppress
  Before: BOGGS, Chief Judge; MOORE, Circuit Judge;                        arguing that the officer’s affidavit, which was the sole basis
             and QUIST, District Judge.*                                   of the warrant, was insufficient to establish probable cause.
                                                                           The district court agreed and granted the motion to suppress.
                                                                           The United States now appeals, arguing that probable cause
                                                                           did exist or, alternatively, that the good-faith exception of
                                                                           United States v. Leon, 468 U.S. 897 (1984) should have been

                                                                               1
                                                                                 In the appellees’ brief, counsel stated that this residence belonged
    *
                                                                           to W ashington even though the Cadillac registered to that address was
     The Honorable Gordon J. Quist, United States District Judge for the   registered to Ebon y Bro wn, who was not a re sident there, accord ing to
W estern District of Michigan, sitting by designation.                     counsel. Appellees’ Brief at 11-13.

                                   1
No. 03-3959             United States v. Washington, et al.             3    4     United States v. Washington, et al.          No. 03-3959

applied. Because we find that the good-faith exception                       him to go to a local Burger King. Detective Johnson and the
should have been applied, we now reverse.                                    unwitting then drove to Burger King to wait for the supplier.
                                                                             The blue Cadillac (which was being followed) pulled into the
                                    I                                        Burger King parking lot and the unwitting got out to meet
                                                                             with the driver. Johnson immediately recognized that this
   The case began when the Columbus (Ohio) Police                            was both the same man and the same Cadillac involved in the
Department’s Narcotics Bureau planned an undercover “buy”                    first “buy” on October 1. After leaving the Cadillac, the
of crack cocaine from an “unwitting,” a person who does not                  unwitting came back and again produced crack cocaine.
know that he is dealing with the police. Detective Michael                   Johnson was unable to identify the driver of the blue Cadillac
Johnson, working undercover, arranged a buy from an                          at that time, though he subsequently observed the blue
unwitting on October 1, 2002. Johnson met with the                           Cadillac parked at 3112 Crossgate Road on both October 8
unwitting, who telephoned his narcotics supplier. Johnson                    and October 9. As it turned out, the man driving the blue
and the unwitting then drove to a designated meeting place.                  Cadillac was defendant Washington.
Shortly thereafter, a black male driving a blue Cadillac parked
next to Johnson’s car.2 The unwitting got out and entered the                   Based on these facts, Johnson sought a warrant to search
Cadillac. When the unwitting returned to Johnson’s car, he                   the residence at 3112 Crossgate Road. The basis for the
produced a bag of crack cocaine. Johnson recorded the                        warrant was a four-page affidavit, in which Johnson relayed
license plate of the Cadillac and later determined that it was               in narrative form the facts stated above. He added that, based
registered to a woman named Ebony Brown at 3112                              on his experience, individuals involved with drug trafficking
Crossgate Road, Columbus, Ohio. The police subsequently                      commonly keep records, documents, and money close by. In
began conducting surveillance on that residence.                             addition, Johnson noted that the Crossgate house had been
                                                                             robbed two months earlier, which was also (in his opinion)
   On October 5 (four days later), Johnson arranged for                      “indicative of suspects searching for narcotics and large sums
another buy with the same unwitting. The unwitting again                     of cash.” A state magistrate judge approved the warrant,
called his supplier, and thereafter reported that the supplier               which was specifically limited to documents and records
said that he would be delayed because he was waiting on a                    relating to drug trafficking, but did not authorize a search for
ride to pick up his Cadillac in the repair shop. Shortly after               drugs themselves.
this call, the police officers at 3112 Crossgate Road observed
a Chevrolet Blazer pick up a black male (later identified as                   The police conducted the search on October 11 (the warrant
Washington) who emerged from that residence. The officers                    was issued on the 9th), and saw drugs in plain view after they
trailed the Blazer, which eventually dropped the man off at                  entered the house. Based on these observations, the police
“Columbus Car Audio,” where he picked up a blue Cadillac                     obtained a second warrant to search for drugs and drug
and drove it away. While the unidentified man was driving,                   paraphernalia. Although it is not relevant for the issues in this
the unwitting received a call from the supplier, who instructed              case, the police found substantial amounts of crack cocaine,
                                                                             a firearm, and large amounts of money at the Crossgate
                                                                             residence.
    2
      This man was later identified as defendant W ashington, although the     The grand jury returned a four-count indictment against the
police were unable to identify him before the execution of the warrant at    defendants, charging them with violations of various drug and
3112 Crossgate Road.
No. 03-3959             United States v. Washington, et al.              5    6      United States v. Washington, et al.         No. 03-3959

firearm-related offenses. Prior to trial, the defendants moved                                                A
to suppress all evidence obtained in the search. They made
four specific arguments as to why the evidence should be                         “When reviewing decisions on motions to suppress, this
suppressed: (1) the warrant was invalid because the affidavit                 court will uphold the factual findings of the district court
lacked evidence to establish probable cause, and the good-                    unless clearly erroneous, while legal conclusions are reviewed
faith exception did not apply; (2) the police executing the                   de novo.” United States v. Weaver, 99 F.3d 1372, 1376 (6th
search failed to knock and announce; (3) information in                       Cir. 1996). Because there was no hearing and no factual
affidavit was too stale; and (4) the evidence from the second                 findings, the district court made only legal conclusions.
search was the “fruit of the poisonous tree.”                                 “Where, as in this case, the district court is itself a reviewing
                                                                              court, we owe its conclusions no particular deference. In
   The district court found that the affidavit was not sufficient             reviewing a state magistrate's determination of probable
to establish probable cause. Specifically, the court found that               cause, this court pays great deference to a magistrate's
the evidence did not establish a sufficient nexus between the                 findings, which should not be set aside unless arbitrarily
criminal activity and the residence itself. The court relied                  exercised.” United States v. Leake, 998 F.2d 1359, 1362-63
heavily on the fact that the police had not identified the                    (6th Cir. 1993) (internal citations and quotations omitted).
suspect (who turned out to be Washington) and had not
established where he lived prior to executing the search.                         In determining if an affidavit establishes probable cause:
Finding that the initial search was invalid, the court did not
reach the other arguments, though it also suppressed the                          [T]he task of the issuing magistrate is simply to make a
evidence of the second search as “tainted fruit.” The United                      practical, common-sense decision whether, given all the
States appealed.3                                                                 circumstances set forth in the affidavit before him, . . .
                                                                                  there is a fair probability that contraband or evidence of
                                    II                                            a crime will be found in a particular place. And the duty
                                                                                  of a reviewing court is simply to ensure that the
   The government contends that the district court erred by                       magistrate had a substantial basis for concluding that
finding that the affidavit failed to establish probable cause.                    probable cause existed.
Alternatively, even if probable cause did not exist, the
government argues that the good-faith exception recognized                    United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)
in United States v. Leon, 468 U.S. 897 (1984) should have                     (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
been applied. We consider each argument in turn.                              (1983) (emphasis added)). “To justify a search, the
                                                                              circumstances must indicate why evidence of illegal activity
                                                                              will be found in a particular place. There must, in other
    3                                                                         words, be a nexus between the place to be searched and the
      In the district court, the government had raised the issue of whether   evidence sought.” Ibid. (internal citations and quotations
the defendants had standing for Fourth Amendm ent purposes. The               omitted). Thus, the critical question here is whether the facts
government failed to raise this issue on appeal, and has therefore waived
it. See United States v. Higgins, 299 F.3d 1039, 1050 (9th Cir. 2002)         alleged in the affidavit established a sufficient nexus between
(“Standing to challenge a search or seizure is a matter of substantive        the criminal activity observed and the Crossgate residence.
Fourth Amendment law rather than of Article III jurisdiction, meaning
that the government can waive the standing defense by not asserting it.”)
(citing Illinois v. Rakas, 439 U.S. 128 , 139-40 (197 8)).
No. 03-3959             United States v. Washington, et al.              7    8      United States v. Washington, et al.          No. 03-3959

   Under the facts of this case, the existence of probable cause              Carpenter, a case decided well after the proceedings below,
is an extremely close call. However, given our conclusion                     we recently outlined the appropriate showing that must be
that the good-faith exception clearly applies, we will assume                 made to establish that the officers could have reasonably
without deciding that probable cause did not exist.                           believed that the affidavit was sufficient to establish probable
                                                                              cause. Under Carpenter, this showing is less demanding than
                                    B                                         the showing necessary to establish probable cause:
  As explained above, the police officers in this case                            If a lack of a substantial basis also prevented application
obtained, and relied upon, a warrant issued by a state                            of the Leon objective good faith exception, the exception
magistrate judge. Therefore, the goverment argues that                            would be devoid of substance. In fact, Leon states that
Leon’s good-faith exception should have been applied.                             . . . a finding of objective good faith [is inappropriate]
                                                                                  when an officer's affidavit is “so lacking in indicia of
  This court has explained that “[c]ourts should not . . .                        probable cause as to render official belief in its existence
suppress evidence obtained in objectively reasonable reliance                     entirely unreasonable.” This is a less demanding showing
on a subsequently invalidated search warrant.” Carpenter,                         than the “substantial basis” threshold required to prove
360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897,                     the existence of probable cause in the first place.
922 (1984)). Pursuant to Leon, this good-faith exception will
not apply in four specific situations: (1) where the affidavit                Carpenter, 360 F.3d at 595 (quoting United States v. Bynum,
contains information the affiant knows or should have known                   293 F.3d 192, 195 (4th Cir. 2002)). Carpenter makes it clear
to be false; (2) where the issuing magistrate wholly                          that the “so lacking in indicia” test is less demanding than the
abandoned his or her judicial role; (3) where the affidavit was               “substantial basis” test. Thus, it is entirely possible that an
so lacking in indicia of probable cause as to render official                 affidavit could be insufficient for probable cause but
belief in its existence entirely unreasonable [or] where the                  sufficient for “good-faith” reliance.
warrant application was supported by [nothing] more than a
“bare bones” affidavit4; (4) where the warrant is so facially                    The standard stated in Carpenter is consistent with the
deficient that the executing officers cannot reasonably                       purpose and rationale of the exclusionary rule. The Supreme
presume it to be valid. United States v. Van Shutters, 163                    Court has explained that the exclusionary rule is “a judicially
F.3d 331, 337 (6th Cir. 1998). The defendants argued that the                 created remedy designed to safeguard Fourth Amendment
second and third situations existed here. The district court                  rights generally through its deterrent effect, rather than a
concluded that the third applied and thus rejected the                        personal constitutional right of the party aggrieved.” Leon,
government’s good-faith-exception argument.                                   468 U.S. at 906. Excluding evidence deters constitutional
                                                                              violations by providing incentives for the police to seek
  This court reviews the decision of whether to apply the                     warrants before executing a search. Thus, when the officers
good-faith exception de novo. Leake, 998 F.2d at 1366. In                     do in fact obtain a warrant, the purpose of the exclusionary
                                                                              rule has largely been served. While it is true that the police
                                                                              still have a duty to assess the affidavit upon which the warrant
    4
      A “bare bo nes” affidavit “states suspicions, or conclusions, without   was based, we will, under Carpenter, exclude evidence in
providing some underlying factua l circum stances regarding veracity,         these situations only when the affidavit is “so lacking in
reliability, and basis of knowledge.” United States v. Va n Shutters, 163
F.3d 331 , 337 (6th Cir. 1998) (quoting Weaver, 99 F.3d at 1378).
No. 03-3959          United States v. Washington, et al.        9    10    United States v. Washington, et al.           No. 03-3959

indicia of probable cause as to render official belief in its        officer also traced the phone number used by the informant to
existence entirely unreasonable.” Carpenter, 360 F.3d at 595.        purchase drugs back to a woman in whose car Schultz had
                                                                     once received a traffic ticket. The police officer also
  There have been several recent cases, all of which involved        discovered that Schultz had a safe deposit box at the bank.
questions about the nexus between criminal activity and              Based largely on the evidence above, the officer sought a
places, where this court has found that probable cause did not       warrant to search the safe deposit box. 14 F.3d at 1096.
exist, but that the good-faith exception should apply. United
States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc);            In assessing probable cause, this court explained: “In his
United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998);         affidavit . . . , the only connection [the officer] made was that,
United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994); United       ‘Based on his training and experience, [he] believed . . . that
States v. Savoca, 761 F.2d 292 (6th Cir. 1985).                      it is not uncommon for the records, etc. of such [drug]
                                                                     distribution to be maintained in bank safe deposit boxes.’” Id.
   For example, in Carpenter, this court explained, “[w]e            at 1097. The court found the affidavit to be insufficient:
[have] previously found Leon applicable in cases where we            “[The officer] did not have anything more than a guess that
determined that the affidavit contained a minimally sufficient       contraband or evidence of a crime would be found in the
nexus between the illegal activity and the place to be searched      boxes, and therefore the first warrant should not have been
to support an officer's good-faith belief in the warrant's           issued.” Id. at 1097-98.
validity, even if the information provided [did not] establish
probable cause.” 360 F.3d at 596. In Carpenter, police                 The court went on, however, to find that the good-faith
helicopter surveillance had observed a marijuana patch near          exception applied:
a residence and a beaten path extending from the house to the
plants. This court found that the evidence submitted by the            [We] cannot say that this warrant was “so lacking [in
police failed to provide a sufficient nexus to establish               indicia of probable cause].” As previously discussed, [the
probable cause, but still found that Leon applied because “the         police officer] certainly had probable cause to believe that
affidavit was not totally lacking in facts connecting the              Schultz had committed a crime. Moreover, although we
residence to the marijuana patches.” Ibid. We added,                   have held that his “training and experience” were not
“[t]hese facts . . . were too vague to provide a substantial basis     sufficient to establish a nexus of probable cause between
for the determination of probable cause. But these facts . . .         that crime and the safe deposit boxes, the connection was
were not so vague as to be conclusory or meaningless.” Ibid.           not so remote as to trip on the “so lacking” hurdle.

   A case more factually similar to the one before us can be         Id. at 1098.
found in United States v. Schultz, 14 F.3d 1093 (6th Cir.
1994). In Schultz, a police officer arrested an individual for         In this case, even assuming probable cause was not
drug possession, and that individual then informed the officer       established, it is clear that the affidavit included enough facts
that a man named Schultz was his source for drugs. The               with respect to the nexus between the criminal activity and
officer investigated further and found that some of the              the Crossgate residence to overcome the “so lacking” hurdle.
informant’s information was correct. For example, they               First, Officer Johnson observed two drug deals involving the
traced some phone records (calls to Jamaica) back to an              same man who was driving a car registered to a person at
apartment where Schultz had been parking his car. The                3112 Crossgate Road. Thus, just like the officer in Schultz,
No. 03-3959          United States v. Washington, et al.       11    12   United States v. Washington, et al.         No. 03-3959

Johnson certainly had probable cause to believe that                 smelled marijuana at a residence. 998 F.2d at 1360-61. The
Washington had committed a crime. Second, Washington                 officer spent only two hours on two nights observing the
(the then-unidentified dealer) emerged from 3112 Crossgate           house, but failed to observe any evidence of wrongdoing. Id.
immediately prior to conducting the second drug deal on              at 1367. In fact, the only corroboration of the informant’s tip
October 5. Third, Washington had told the unwitting that he          was that the house matched the informant’s general
had to wait for a ride so that he could pick up his Cadillac,        description and that it had a basement. Id. at 1361. On the
which was registered to the Crossgate residence. Fourth, the         basis of this information, the officer submitted an affidavit
same Cadillac used in both drug deals (and which                     and obtained a warrant. The court refused to apply Leon. Id.
Washington claimed was his car) was observed at the                  at 1367 (“The limited information provided by the
Crossgate residence on the mornings of October 8 and 9.              anonymous caller, coupled with the brief limited surveillance
Finally, the affidavit included a reference to an armed robbery      by the affiant officer that turned up nothing unusual, was
at the Crossgate residence two months earlier, which Johnson         insufficient. [The officer] knew, or should have known, that
stated (based on four and one-half years in the Narcotics            reliance on the search warrant was ill-advised.”). In both
Bureau) was indicative of suspects searching for narcotics or        Weaver and Leake, the efforts of the police were far less
cash. These facts might very well be enough to establish             extensive than the efforts of Officer Johnson and the
probable cause, although we decline to make that holding. At         Columbus police, and could hardly be deemed “good-faith”
the very least, though, the facts listed above clearly satisfy the   reliance.
“so lacking” standard necessary for Leon’s good-faith
exception to be applied. There was a visible nexus                                                 III
connecting Washington to the house, Washington to the
Cadillac, and the Cadillac to the house.                               Because we find the good-faith exception should have been
                                                                     applied, we now REVERSE the district court’s granting of the
  Both the district court and the defendants relied on two           defendants’ motion to suppress. Because the district court did
cases in which this court declined to apply the good-faith           not pass on the defendants’ other bases for the motion to
exception where the officers had obtained a warrant with an          suppress, we decline to consider those arguments at this time.
affidavit. United States v. Weaver, 99 F.3d 1372 (6th Cir.
1996) and United States v. Leake, 998 F.2d 1359 (6th Cir.
1993). Both of these cases can be easily distinguished. For
example, in Weaver, the police officer had merely filled in
blanks on a boilerplate affidavit. The officer had also relied
on a single informant without any corroboration of the
informant’s allegations. The court found that the search
warrant could not have been relied on in good faith under
these circumstances. Weaver, 99 F.3d at 1375, 1381 (“We
believe a reasonably prudent officer would have sought
greater corroboration to show probable cause and therefore do
not apply the Leon good-faith exception on the facts of this
case.”). Similarly, in Leake, a police officer relied on an
anonymous informant, who informed the officer that he
No. 03-3959         United States v. Washington, et al.     13    14    United States v. Washington, et al.           No. 03-3959

                      ______________                              leaving the 3112 Crossgate residence on only one occasion,
                                                                  and Johnson saw the Cadillac parked in front of the residence
                         DISSENT                                  on two consecutive mornings, although he did not see the
                      ______________                              supplier on those mornings. The affidavit attested to
                                                                  Johnson’s belief that “it is very common for narcotics
  KAREN NELSON MOORE, Circuit Judge, dissenting.                  traffickers to conceal their identity by means of having other
The majority upholds a search when the underlying affidavit       persons register vehicles that they commonly drive and
neither connects a searched residence to any illegal activity     essentially own.” J.A. at 40. The affidavit also discussed
nor states that a suspect observed engaging in such illicit       how a 2002 police report showed that Brown had been robbed
activity away from the residence actually lives at the searched   at gunpoint by three individuals who stole a diamond ring and
residence. Because such a warrant is so lacking in probable       cash, which led Johnson to the conclusion, based on
cause that no reasonable officer could rely on it in executing    Johnson’s “experience and expertise[,] . . . that the robbery
the search, I respectfully dissent.                               . . . is indicative of suspects searching for narcotics and large
                                                                  sums of cash.” J.A. at 40. Finally, the affidavit attested to
  I would affirm the judgment of the district court. There are    Johnson’s belief that in his experience, drug traffickers are
two issues raised by this appeal: whether the warrant was         likely to keep records and documents of their illicit activities
supported by probable cause, and if not, whether the officers     at their residences. J.A. at 41.
reasonably relied on the warrant in executing the search.
Believing that both inquiries should be answered in the             The affidavit is notable for what it lacks. It fails to identify
negative, I would suppress the evidence uncovered as a            the name of the supplier or to provide a detailed description
consequence of the illegal search of 3112 Crossgate.              of him. It in no way suggests that any drug trafficking
                                                                  activity was seen transpiring in or near the residence. The
I. THE AFFIDAVIT                                                  affidavit does not state or provide any information implying
                                                                  that the supplier lived or resided at 3112 Crossgate, aside
  In analyzing the legality of the first warranted search and     from Johnson’s statement that the supplier was seen leaving
the reasonableness of the officer’s reliance on the first         that location on one lone occasion. Additionally, the affidavit
warrant, it is helpful to recount the affidavit that Johnson      does not indicate that Johnson performed any research to
presented to the issuing judge. Detective Johnson’s affidavit     determine whether the supplier, or Brown, lived at or owned
spoke of an unidentified individual, whom the unwitting           3112 Crossgate.
called his “supplier” and who responded when the unwitting
requested to purchase cocaine. Johnson did not actually see       II. PROBABLE CAUSE
the drug exchange, but on two separate occasions Johnson
“observed verbal and physical interaction between the                Based upon the fundamental principles of the law of
unwitting and the male,” Joint Appendix (“J.A.”) at 39            warranted searches, I cannot conclude that probable cause
(Johnson Aff. I), who was identified by the unwitting as the      supported the issuance of the search warrant. The Fourth
supplier, that was consistent with a drug sale. Also on two       Amendment states that “no Warrants shall issue, but upon
separate occasions, Johnson observed the supplier driving a       probable cause, supported by Oath or affirmation.” U.S.
Cadillac that was registered to Ebony Brown at 3112               Const. amend. IV. The question is whether “given all the
Crossgate. Detectives assisting Johnson watched the supplier      circumstances set forth in the affidavit . . . there is a fair
No. 03-3959          United States v. Washington, et al.     15    16       United States v. Washington, et al.              No. 03-3959

probability that contraband or evidence of a crime will be         determinant of a search warrant is whether evidence is likely
found in a particular place.” Illinois v. Gates, 462 U.S. 213,     to be found on the premises to be searched. See Zurcher v.
238 (1984). In evaluating the issuing magistrate’s probable        Stanford Daily, 436 U.S. 547, 556 (1978) (“The critical
cause determination, we apply a flexible “totality of the          element in a reasonable search is not that the owner of the
circumstances” approach, which permits us to evaluate the          property is suspected of crime but that there is reasonable
particular facts of each case. Id. Despite our consideration of    cause to believe that the specific ‘things’ to be searched for
a broad range of circumstances that factor into a magistrate’s     and seized are located on the property to which entry is
probable cause determination, there are “limits beyond which       sought.”).
a magistrate may not venture in issuing a warrant.” Id. at 239.
“Sufficient information must be presented to the magistrate to        In prior cases, a paucity of details linking a defendant to the
allow that official to determine probable cause; his action        named residence and to drug activity at that residence has led
cannot be a mere ratification of the bare conclusions of           us to conclude that probable cause did not support the issued
others.” Id. Because Johnson’s affidavit did not establish         warrants. In United States v. Helton, 314 F.3d 812 (6th Cir.
that Washington owned the 3112 Crossgate residence, which          2003), we held that probable cause did not exist when there
diminished the likelihood that evidence of drug trafficking        was no observation of drug activity at a residence and little to
would be found there, I believe the magistrate erred in its        no additional proof connecting the residence to drug
probable cause determination.                                      trafficking. The affidavit in Helton attested to three phone
                                                                   calls a month between the searched residence and known drug
  Any review of this search must begin with the clear reality      dealers, a description of the residence, and an assertion that
that Johnson’s affidavit did not mention any illicit activity at   one of the drug dealers stored money with someone other than
the searched residence nor did it present any credible             the defendant somewhere other than the residence. Id. at 820-
information (from a confidential informant or an unwitting)        21. After considering other circumstances of “minimal
that drug trafficking occurred there. Unlike other cases in        persuasive value,” we held that there was little to no
which drug activity was reported near or at a residence, either    probability that the searched residence contained drugs or
by surveilling police or an informant, there was no such           drug proceeds. Id. at 823; see also United States v. Savoca,
information provided here. Cf. United States v. Martin, 920        761 F.2d 292, 295 (6th Cir. 1985) (holding that probable
F.2d 393, 399 (6th Cir. 1990) (upholding search when               cause did not support search of a motel room where two
narcotics sale occurred near the residence and a confidential      known bank robbers were observed together, even taking into
informant provided information about drug activity occurring       account the inference that bank robbers tend to conceal
inside the residence); United States v. Pelham, 801 F.2d 875,      evidence in places like hotel rooms, because there was
878 (6th Cir. 1986) (“When a witness has seen evidence in a        nothing linking the motel room to the particular crime, which
specific location in the immediate past, and is willing to be      had occurred over 2,000 miles away).1 Similar to the facts in
named in the affidavit, the ‘totality of the circumstances’
presents a ‘substantial basis’ for conducting a search for that
evidence.”). Johnson’s affidavit stated that he observed the            1
                                                                          In other cases, which contrary to this factual scenario involved
supplier meet with the unwitting twice in locations away from      direct observation of illicit activity at a na med residence, incomp lete
the residence, but Johnson never observed drug trafficking         details about the activity also led us to suppress evidence. See United
behavior at 3112 Crossgate. The supplier’s actions may have        States v. Weaver, 99 F.3d 1372 , 1379 (6th Cir. 1998) (holding that even
                                                                   though a confidential informant provided a tip that drug activity was
provided probable cause for an arrest warrant, but the proper      occurring at a residence, the affidavit did not attest to any “substantive
No. 03-3959              United States v. Washington, et al.            17     18    United States v. Washington, et al.           No. 03-3959

Helton, there was no direct connection between the supposed                    that “‘many drug traffickers utilize their homes to conduct
illegal drug activity observed by Johnson and 3112 Crossgate;                  their illegal narcotics trafficking activities’”). Nonetheless, in
the gulf between the two is bridged by Johnson’s statement                     these types of cases we should be mindful that Gates’s
that it is common for drug traffickers to keep business records                “totality of the circumstances” test requires us to eschew firm
and journals at their residences.                                              rules and that evidence may not always be likely to be found
                                                                               where a dealer resides. See United States v. Allen, 211 F.3d
   The affidavit’s reliance upon a belief that drug-related                    970, 975 (6th Cir. 2000) (en banc) (“As the Court observed in
materials may be found in the homes of those who sell drugs                    Gates, tests and prongs have an unfortunate tendency to
elsewhere in lieu of articulable observations of drug                          develop a life of their own, and tend to draw more attention
trafficking behavior at a residence does not per se condemn                    to their individual characteristics than to the totality of the
the magistrate’s probable cause determination. In the past, we                 circumstances.”).
have held that an observation of drug trafficking away from
a dealer’s residence can provide probable cause to search the                     We are presented with an altogether different set of
alleged dealer’s residence. United States v. Miggins, 302 F.3d                 circumstances when the affidavit in question fails to
384, 393-94 (6th Cir. 2002). We have permitted searches of                     demonstrate that the suspect actually owns or lives at the
a trafficker’s residence when the trafficker is observed dealing               residence. The link between the suspect and the residence is
drugs elsewhere, despite the attenuated connection between                     the key support for the inference that a residential search is
the trafficking and the residence, because an officer’s                        likely to turn up evidence of illicit drug activity. When that
experience that drug dealers often store evidence of their                     link is missing, it is an impermissible logical leap to assume
activities at their residences enhances the probability that                   that evidence will be found at a location where the suspect
trafficking-related evidence will be discovered. Id.; see also                 does not reside. While it makes some logical sense that drug
United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998)                   dealers may maintain records and documents at their homes,
(“[T]he fact that the incidents referred to in the affidavits took             it is less reasonable that traffickers would keep records and
place on the premises [(in the driveway of the residence or in                 documents in places where they temporarily reside (visiting
the defendant’s car)] rather than inside the house does not                    a friend’s house or a motel) or where they are temporarily
invalidate the search of the house.”); United States v.                        guests (spending several hours at the home of an
Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996) (finding                           acquaintance). It is notable that there is no comparable
probable cause when affidavit attested to officer’s experience                 inference in Johnson’s affidavit that drug dealers tend to keep
                                                                               documents and records of their trafficking at any house where
                                                                               police happen to see them, nor would such a presupposition
                                                                               be plausible or supportable absent some direct observation or
independent investigative actions to corrob orate [the] informa nt’s claims,   knowledge of documents kept at a particular location.
such as surve illance o f the . . . residence for undue traffic or a second
controlled purchase m ade with officers viewing”); United States v. Leake,
998 F.2d 135 9, 13 65 (6th Cir. 199 3) (sup pressing evidence when
                                                                                 Reviewing the warrant in a “practical, common-sense”
anonymous tipster reported personal observation of drug trafficking-type       manner, it is clear that there was a dramatic reduction in the
activities at a residence, but the investigating detective did not notice      probability that evidence of drug trafficking would have been
anything out of the ordinary at the residence during his two-night             found at 3112 Crossgate when the affidavit failed to draw the
surveillance, and the detective’s tracing of vehicles located at the           critical link between the supplier’s activities outside the
residence did not increase the probability that drugs would be found at the
residence).
                                                                               residence and the residence itself. See United States v. Van
No. 03-3959          United States v. Washington, et al.     19    20    United States v. Washington, et al.           No. 03-3959

Shutters, 163 F.3d 331, 337 n.4 (6th Cir. 1998) (noting that       individual who was presumed to live at 3112 Crossgate. Not
verification that defendant actually lived at the searched         every affidavit and warrant must identify the suspect or name
residence “should have been included in the affidavit”).           the suspect as the owner of the searched property, but when
Johnson’s affidavit stated that his supporting detectives          the only evidence making it probable that illicit materials will
observed the unnamed supplier leaving the 3112 Crossgate           be found at a particular residence is the assumption that drug
address on one single occasion, but the affidavit contains no      dealers tend to keep drugs, money, guns, and records at their
other information about the supplier’s connection to the           homes, it seems clear that there should be evidence that the
residence. Nor did the affidavit claim that Brown resided at       trafficker actually owns or resides at the property to be
3112 Crossgate. At the time he produced the affidavit,             searched. Cf. United States v. Pinson, 321 F.3d 558, 564-65
Johnson did not know, and consequently did not and could           (6th Cir. 2003) (holding that an affidavit does not need to
not inform the court, whether the supplier lived at the            name a dealer or the owner of searched property, but only
residence, was an occasional houseguest, or just visited 3112      when a confidential informant actually purchased drugs and
Crossgate on the morning he was observed leaving the house.        witnessed drug trafficking at the searched residence).
  Unlike the affidavits in other cases in which officers have         Johnson’s other ruminations in the affidavit about the
clearly established that a defendant owned the residence to be     supplier’s connection to the residence and Brown’s
searched, Johnson’s affidavit did not reflect any research into    connections to the supplier’s alleged drug trafficking
mortgage or phone records, or any other potential proof that       constitute little more than speculation and fail to sustain the
Washington lived or resided at 3112 Crossgate. See Miggins,        legality of the search. Johnson’s observations of the Cadillac
302 F.3d at 388 (affidavit drew link between defendants and        outside 3112 Crossgate on two separate mornings did not at
searched residence, even though no drug trafficking activity       all establish that the supplier resided at that address. Nor does
occurred at the residence); United States v. Watkins, 179 F.3d     Johnson’s suggestion that the supplier registered the Cadillac
489, 493 (6th Cir. 1999) (affidavit clearly established that       in Brown’s name to conceal his identity successfully show
residence was owned by defendant); Caicedo, 85 F.3d at 1193        that the supplier lived at 3112 Crossgate. Furthermore,
(affidavit noted that defendant had lied about his address and     Johnson’s statement that the theft of a diamond ring and cash
the affidavit claimed that defendant’s concealment of his true     from Brown “is indicative of suspects searching for narcotics
address could indicate that additional evidence would be           and large sums of cash,” J.A. at 40, is little more than
found at his actual residence); United States v. Schultz, 14       guesswork because the robbery may have occurred for myriad
F.3d 1093, 1097 (6th Cir. 1994) (upholding search when there       reasons. This speculation is also irrelevant; the robbery
were clear links between defendant and searched apartment;         incident does nothing to establish that the supplier lived or
the affidavit attested to the fact that the defendant resided in   resided at 3112 Crossgate.
the apartment, and automobiles registered to the defendant
were parked at the searched apartment complex); United               Considering the “totality of the circumstances” — the
States v. Davidson, 936 F.2d 856, 857-58, 859-60 (6th Cir.         dearth of observed drug trafficking activity at 3112 Crossgate,
1991) (affidavit attesting to a widespread and thoroughly          the failure of the affidavit to prove that the supplier resided at
documented pattern of drug trafficking activity clearly            3112 Crossgate, the failure of the affidavit to identify the
identified that the suspect lived at the searched residence).      supplier, and the lack of any additional evidence
Furthermore, unlike many of our other decisions in this area,      demonstrating a probability that drug evidence would be
Johnson’s affidavit failed even to identify the name of the        found at the residence — Johnson’s affidavit failed to
No. 03-3959         United States v. Washington, et al.     21    22   United States v. Washington, et al.          No. 03-3959

establish a fair probability that documents relating to drug      reasonable officer knows that evidence of three calls a month
trafficking would be discovered at the 3112 Crossgate             to known drug dealers from a house, a description of that
residence. Therefore, the warrant was not supported by            house, and an allegation that a drug dealer stores drug
probable cause, and the search cannot be justified on that        proceeds with his brother and his brother's girlfriend (neither
basis.                                                            of whom live at or are known to visit that house), falls well
                                                                  short of establishing probable cause that the house contains
III. THE LEON GOOD-FAITH EXCEPTION                                evidence of a crime.”); United States v. Weaver, 99 F.3d
                                                                  1372, 1381 (6th Cir. 1998) (holding that “a reasonably
    The majority errs by concluding that the good-faith           prudent officer would have sought greater corroboration to
exception established in United States v. Leon, 468 U.S. 897      show probable cause” when the affidavit did not indicate a
(1984), insulates the search from reproach. Leon articulated      fair probability that a suspect was growing marijuana at a
the principle that the exclusionary rule does not operate “to     particular residence); United States v. Leake, 998 F.2d 1359,
bar admission of evidence seized in reasonable, good-faith        1367 (6th Cir. 1993) (rejecting application of Leon because “a
reliance on a search warrant that is subsequently held to be      two-night, two-hour surveillance simply produced no
defective.” Van Shutters, 163 F.3d at 337 (quotations             significant corroboration of the information’s claim of
omitted). However, Leon will not apply when “it is clear that     marijuana trafficking”).
. . . the officer will have no reasonable grounds for believing
that the warrant was properly issued.” Leon, 468 U.S. at 922-        The government unpersuasively suggests that several of our
23. The relevant exception to the Leon rule provides that “an     cases mandate an outcome in its favor because those cases
officer [would not] manifest objective good faith in relying on   apply the good-faith exception “despite the lack of any nexus
a warrant based on an affidavit so lacking in indicia of          between the criminal activity and the place to be searched.”
probable cause as to render official belief in its existence      Gov’t Br. at 34 (citing Van Shutters, 163 F.3d at 337-38;
entirely unreasonable.” Id. at 923 (emphasis added). Thus,        Schultz, 14 F.3d at 1098; Savoca, 761 F.2d at 298). The
the inquiry is whether Johnson’s affidavit was so deficient in    government’s misreading of these cases explains its
establishing probable cause to search 3112 Crossgate that “a      overstatement; in the cited cases, an identified suspect and a
reasonably well trained officer would have known that the         strong and demonstrable connection between the suspect and
search was illegal despite the magistrate’s authorization.” Id.   the place to be searched served as the nexus between the
n.23.                                                             criminal activity and the search location. For example, in Van
                                                                  Shutters, the affiant had personal knowledge of the suspect’s
  The application of Leon to this precise factual situation —     criminal enterprises, the affidavit implied that the affiant had
where no criminal activity is observed at the searched            observed the suspect in the searched residence or otherwise
residence and the affidavit fails: 1) to identify the suspect;    determined that the suspect frequented the residence, and a
and 2) to demonstrate that the suspect lives at the place to be   search of a different residence owned by the suspect turned up
searched — is a novel question for this circuit. In different     incriminating evidence. Van Shutters, 163 F.3d at 334, 337.
factual circumstances, we have held that an officer’s reliance    We ruled that Leon preserved the fruits of the search. In
on a warrant was objectively unreasonable when the warrant        Schultz, an officer sought a warrant to search a safe-deposit
failed to make a sufficient connection between a suspect, the     box based upon the intuition that documents and records of
suspect’s illegal actions, the objects to be seized, and the      drug distribution are often kept in such boxes. Schultz, 14
place to be searched. See Helton, 314 F.3d at 825 (“A             F.3d at 1097. We held that despite the lack of a nexus
No. 03-3959          United States v. Washington, et al.     23    24    United States v. Washington, et al.          No. 03-3959

between the crime and the safe-deposit boxes, the connection       even though the proximity of the marijuana was too remote to
was not so remote as to make Leon inapplicable. Id. at 1098.       give probable cause to search. By contrast, Johnson did not
In Schultz, however, there was a proven nexus between the          observe drug activity anywhere near 3112 Crossgate; the
suspect and the safe-deposit box, a connection missing here.       purported trafficking occurred several miles from the home.
See also Savoca, 761 F.2d at 298 (holding that affidavit was       As a result, Johnson, unlike the officer in Carpenter, could
not “so lacking in indicia of probable cause” when two known       not rely on the propinquity of the drugs to the residence as an
bank robbers were observed staying at the motel room that          indicator that drugs were likely to be discovered at the home.
was searched). By contrast, Johnson’s affidavit does not           Instead, Johnson had to rely on the extremely tenuous link
show in any meaningful fashion that the supplier was               between the supplier and the residence and the presumption
connected to 3112 Crossgate in a way that would increase the       that a trafficker will keep drug-related materials at their
probability that documentary evidence would be discovered          residence. Relatedly, the warrant in Carpenter strongly
there.                                                             implied that the defendants owned the residence, but it did not
                                                                   need to because the observation of the marijuana plants
   The majority’s belief that the result here is dictated by       “near” the residence provided the requisite nexus that made
United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en       belief in the warrant’s validity reasonable. Dissimilarly,
banc) is no less misplaced. In Carpenter, a majority of the en     Johnson’s warrant made no mention of the supplier’s
banc court upheld a search under Leon when an affidavit            connection to 3112 Crossgate, but such a connection was
stated merely that marijuana was observed near a residence         absolutely necessary given that the supplier, as opposed to
belonging to the defendants and that a road connected the          some observation of physical proximity, served as the
residence to the marijuana. Id. at 593. The Carpenter              primary link to the residence.
majority discussed the applicability of Leon in cases when
“the affidavit contained a minimally sufficient nexus between        Any reasonable officer would have known that probable
the illegal activity and the place to be searched to support an    cause did not support the warrant because the affidavit’s
officer’s good-faith belief in the warrant’s validity.” Id. at     discussion of only a sparse and speculative connection
596. The court concluded that the officers acted reasonably        between the supplier and 3112 Crossgate highlighted its clear
in searching the Carpenters’ residence for evidence of             deficiencies. As justification for the document search,
marijuana cultivation. Id.                                         Johnson relied on his intuition and experience that those
                                                                   involved in trafficking often keep records of their illegal
   I continue to believe that Carpenter was wrongly decided,       activities where they live. Yet, the affidavit did not identify
id. at 601-04 (Moore, J., dissenting), but it is the law in this   the supplier or attempt to show that the supplier resided at the
circuit. Nonetheless, its holding does not guide this outcome      3112 Crossgate, both of which constitute fatal omissions.
because of the differences between the two cases. The              Any reasonable officer would have known that it is illegal to
“minimally sufficient” nexus of physical proximity between         search a residence when it is not clear that the suspect lives or
the drugs and the residence that was the focal point in            resides there or conducts illegal drug activity there, because
Carpenter is not evident in this case. The majority in             there is not a high probability that the desired evidence will
Carpenter felt that an observation of marijuana growing            be uncovered at that location. A reasonable officer would
“near” the residence (about 900 feet away), as opposed to          have realized that, without more surveillance or research, he
“in,” “abutting,” or “within the curtilage of” the residence,      or she could not determine whether the supplier owned the
justified the officers’ reasonable reliance upon the warrant       residence at 3112 Crossgate, was an occasional houseguest,
No. 03-3959         United States v. Washington, et al.     25    26   United States v. Washington, et al.         No. 03-3959

or simply stayed at 3112 Crossgate the one time he was            trafficking activity, a suspect, and a place to be searched, we
observed leaving the house. Under such circumstances, a           have previously permitted searches even though all three
reasonable officer would recognize the diminished probability     points cannot be connected, but the majority unfortunately
of finding documentary evidence at 3112 Crossgate.                and unnecessarily debilitates the Fourth Amendment by
                                                                  validating a search in which neither the trafficking activity
   Two additional facts reinforce the unreasonableness of         nor the suspect are tied to the location to be searched.
Johnson’s reliance upon the warrant. First, Johnson’s
affidavit stated that he had agreed to make a controlled buy of
a kilogram of cocaine, which he suspected would be provided
by the supplier. Johnson submitted the first affidavit and
obtained the first warrant before the buy occurred, and the
abandonment of the controlled buy suggests that the officers
acted with unnecessary haste when more investigation could
have been conducted. Second, it is impossible to ignore the
ease with which Johnson could have uncovered the supplier’s
connection to 3112 Crossgate. A simple public records
inquiry, further research into the name on the utilities
accounts registered at the address, or additional surveillance
would have provided clear evidence of whether the supplier
actually lived at 3112 Crossgate. The relative prolixity of the
affadavit (4 pages, single-spaced) does not remedy its failure
to provide easily acquired and vital information linking the
supplier to the residence. See, e.g., Helton, 314 F.3d at 816,
824 (showing that length of affidavit is not dispositive by
rejecting application of Leon even though affidavit was
twenty-seven pages long). It was unreasonable for Johnson
to rely on an affidavit lacking this critical information.
IV. CONCLUSION
  In sum, I dissent because the majority’s holding further
erodes the fundamental protections against unreasonable
governmental intrusions promised by the warrant provisions
of the Fourth Amendment. By declaring that the officers
relied reasonably on the warrant when the underlying
affidavit drew no connection between the illegal activity and
the place to be searched or between the suspect and the place
to be searched, the majority vitiates the prophylaxis of the
search warrant requirement. In the triangulation between
