                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0396n.06

                                          No. 17-3503

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                 FILED
                                                                               Aug 07, 2018
 UNITED STATES OF AMERICA,                              )
                                                                           DEBORAH S. HUNT, Clerk
                                                        )
        Plaintiff-Appellant,                            )
                                                        )
                                                               ON APPEAL FROM THE
 v.                                                     )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE
 CURTIS EARL TUCKER, JR.,                               )
                                                               NORTHERN DISTRICT OF
                                                        )
                                                               OHIO
        Defendant-Appellee.                             )
                                                        )
                                                        )



BEFORE:        BOGGS, CLAY, and DONALD, Circuit Judges.

       BOGGS, Circuit Judge. On March 29, 2017, a federal grand jury indicted Curtis Earl

Tucker, Jr. for possessing with the intent to distribute more than 500 grams of a methamphetamine

mixture, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and for being a felon in

possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Tucker subsequently filed a motion to suppress evidence seized from two residences, which the

United States District Court for the Northern District of Ohio granted. The government now

appeals that order, arguing that investigators acted in good faith when they executed search

warrants for those residences.

       For the reasons outlined below, we affirm the district court’s grant of Tucker’s motion to

suppress.
No. 17-3503
United States v. Tucker
                                                              I

                                                             A

         From July 2016 until February 2017, law enforcement agents electronically surveilled

Camiolo Rocha-Ayon, Jr., a suspected narcotics trafficker living in Canal Winchester, Ohio.

During that timeframe, officers observed Rocha-Ayon engaging in behavior that was indicative of

drug trafficking. On multiple occasions, for instance, Rocha-Ayon left his residence at 5126

Algean Drive in his day-to-day vehicle, drove to a second residence at 5387 Bradshaw Street,

Canal Winchester, Ohio, stayed only for a short while, and then departed in a car that he normally

did not use.1 At least once, Rocha-Ayon drove this second vehicle, a white Infiniti, to a truck stop,

where an unidentified individual removed a duffel bag from the car’s trunk and walked away.

         On February 17, 2017, Rocha-Ayon once again left his Algean Drive home, drove to the

Bradshaw Street residence, and changed vehicles. After stopping at a Columbus, Ohio, sporting-

goods store to purchase a vacuum sealer and sealing bags, Rocha-Ayon traveled to 791 Saxon

Avenue, Akron, Ohio and parked in the driveway. Some time after Rocha-Ayon’s arrival, a white

van registered to Tucker also pulled up to the residence; and although the van left shortly thereafter,

it returned at 12:07 p.m. At 12:59 p.m., Rocha-Ayon departed in his white Infiniti and, on his way

back to Canal Winchester, stopped at an outlet mall. Rocha-Ayon then proceeded to his Algean

Drive residence, where he stayed for an unspecified period of time before returning to Bradshaw

Street to switch back into his day-to-day vehicle.

         Two days later, on February 19, Rocha-Ayon began this sequence anew. After leaving his

Algean Drive residence in his day-to-day car, Rocha-Ayon drove to Bradshaw Street and switched



1
  Akron Police Department Detective M.V. Gilbride, who applied for and obtained one of the search warrants at issue
in this case, stated in his affidavit that based upon his training and experience, drug traffickers avoid using their normal,
day-to-day vehicles when transporting contraband.

                                                            -2-
No. 17-3503
United States v. Tucker
vehicles. He then made his way to an area Wal-Mart, where he was observed placing a tan duffel

bag into the trunk of his Infiniti. Approximately two minutes after he arrived at the Wal-Mart,

Rocha-Ayon departed. This time, however, Rocha-Ayon did not reach his intended destination.

While traveling on highway I-270, he was stopped by the Ohio State Highway Patrol for a moving

violation. When a K-9 drug unit alerted to the odor of narcotics, his car was searched, and roughly

11 kilograms of cocaine was discovered in the tan duffel bag. A receipt for bulk plastic bags and

a vacuum sealer, dated February 17, 2017, was also found.

       Later that day, federal search warrants were issued for Rocha-Ayon’s Canal Winchester

residences. At the Bradshaw Street location, investigators found a vacuum sealer, scales, United

States currency, wire-transfer receipts, and empty drug packaging, while at the Algean Drive

residence, they discovered approximately $223,000 in U.S. currency and eight firearms.

        Based upon this evidence, Akron Police Department Detective M.V. Gilbride sought a

records-and-documents search warrant for the Saxon Avenue house. Citing his training and

experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride

hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from

TUCKER to pay for [an] upcoming delivery of cocaine.” Affidavit for Search Warrant for

791 Saxon Avenue ¶ 24. He further speculated that “a portion of the cocaine seized” from Rocha-

Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-

Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum

sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from

Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester.

Ibid. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County,

Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the



                                               -3-
No. 17-3503
United States v. Tucker
account holder for the residence’s electric utilities; that the Akron Police Department had received

a service call in October 2016, which suggested that drug dealing was occurring at the house; that,

inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack

cocaine2; and that the affidavit had been presented to and approved by “the Akron Police Legal

Advisor.” Id. at ¶¶ 25–27, 33.

        On March 8, 2017, an Akron Municipal Court judge issued a search warrant for the Saxon

Avenue house, permitting the seizure of:

        [b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic
        equipment to store information relating to the possession, transportation, ordering,
        purchase and distribution of controlled substances, . . . bank statements and records
        and other items evidencing the obtaining, secreting, transfer and/or concealment
        and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency,
        photographs, indicia of occupancy; and other fruits, instrumentalities and evidence
        related to drug trafficking.

Search Warrant for 791 Saxon Avenue. A search was conducted the next day, at which time

officers recovered several empty vacuum-seal bags, multiple handguns (one of which was loaded),

a hydraulic press with a mold, and United States currency. Investigators also found Tucker’s birth

certificate, vehicle registrations, and Summit County Fiscal Office records identifying him as the

owner of 2123 Penguin Avenue, Akron, Ohio.

        That same day, investigators obtained a records-and-documents search warrant for the

Penguin Avenue residence. In addition to reciting the information contained in the Saxon Avenue

affidavit and listing the evidence seized from that location, the Penguin Avenue affidavit noted

that Tucker had forwarded the utilities bill for the Saxon Avenue residence to 2123 Penguin

Avenue. It further stated that in April 2016, the Summit County Sheriff’s Office had received a



2
  The affidavit also stated that Tucker had been convicted in 2012 for possession of drugs. Both parties agree and
stipulate that this was an error, but that it was unintentional.

                                                       -4-
No. 17-3503
United States v. Tucker
report of a domestic dispute at the address and that Tucker had been identified as a participant in

it. On March 9, 2017, shortly after the warrant was issued, a search of the residence was conducted,

during which three guns, United States currency, and four kilograms of methamphetamine were

discovered.

                                                  B

       On April 24, 2017, Tucker moved to suppress the evidence seized from the Saxon Avenue

and Penguin Avenue residences on the grounds that the affidavits offered in support of the search

warrants were “devoid of any evidence connecting the residences to the drug dealing activity.”

Tucker accordingly claimed that the affidavits failed to establish probable cause and that the good-

faith exception did not apply.

       After holding a suppression hearing, the district court agreed with Tucker. United States

v. Tucker, No. 5:17–CR–105, 2017 WL 1950692, at *1 (N.D. Ohio May 11, 2017). Regarding the

Saxon Avenue affidavit, the court held that it was insufficient to establish probable cause because

it did “not say that Rocha-Ayon or Tucker ever went into the Saxon Avenue location on February

17”; said “almost nothing about criminal activity at the house other than that Rocha-Ayon had

parked in the house’s driveway”; relied on a vague, unsubstantiated, stale tip regarding drug

dealing at the house; “contained no evidence that [Tucker] distributed narcotics from the . . .

location, that he used the . . . location to store narcotics, or that any suspicious activity had taken

place there”; and “document[ed] just a few instances when Rocha-Ayon drove the Infiniti for drug-

related purposes.” Id. at *5–6 (first alteration in original) (citation omitted). The court also found

that the warrant “fail[ed] to meet the Fourth Amendment’s particularity requirement” because it

“sanction[ed such] a wide-ranging exploration of [the] Saxon house” that “[o]fficers could not

‘readily ascertain which items were subject to seizure.’” Id. at *7 (quoting United States v.



                                                 -5-
No. 17-3503
United States v. Tucker
Anderson, 555 F. App’x 589, 595 (6th Cir. 2014)). Finally, the court held that the good-faith

exception to the exclusionary rule did not apply to the evidence seized from the Saxon Avenue

residence because the affidavit was “so bare bones that it was objectively unreasonable for officers

to rely on” it. Id. at *8. Specifically, the court faulted the affidavit for relying on the erroneous

assumption that “because Rocha-Ayon, a drug dealer, visited Tucker’s house once, drug activity

must have taken place there.” Ibid.

         In light of these considerations, the district court further held that “evidence from the Saxon

search [could not] provide the underlying basis for the Penguin house’s search warrant.” Id. at *7.

Stripped of this evidence, the court found that the Penguin Avenue affidavit did not “show[ that

the property had] any connection to drug dealing or to records of drug dealing” and, thus, that

probable cause for the search was lacking. Id. at *8 (emphasis added). Moreover, because the

court found that the Penguin Avenue affidavit “only contained ‘suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances regarding veracity, reliability, and basis

of knowledge[,]’” it also held that the good-faith exception did not apply to the Penguin Avenue

search. Ibid. (quoting United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). The court

therefore excluded all evidence seized from that location. Id. at *9.

         The government now appeals that order, though it concedes that the affidavits supporting

the search warrants were insufficient to establish probable cause. Thus, the only question on

appeal is whether officers acted in good faith when they executed the two search warrants.3




3
  Because the government did not argue that any of the other exceptions to the exclusionary rule applied—for instance,
that the evidence seized from the residences “ultimately or inevitably would have been discovered by lawful means,”
Nix v. Williams, 467 U.S. 431, 444 (1984)—we limit our discussion to the applicability of the good-faith exception.

                                                         -6-
No. 17-3503
United States v. Tucker
                                                 II

       When reviewing an order suppressing evidence, we review the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. White, 874 F.3d 490,

495 (6th Cir. 2017). The applicability of the good-faith exception is a legal conclusion and, thus,

is reviewed de novo. United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006).

                                                 A

       Because the exclusionary rule is “a judicially created remedy designed to safeguard Fourth

Amendment rights[,]” evidence obtained in violation of the amendment should be suppressed

where, but only where, the rule’s “remedial objectives are . . . most efficaciously served.” United

States v. Leon, 468 U.S. 897, 906, 908 (1984) (quoting United States v. Calandra, 414 U.S. 338,

348 (1974)). Since that objective is the “deter[rence of] police misconduct rather than [the

punishment of] the errors of judges and magistrates,” Leon, 468 U.S. at 916, suppression is

appropriate “[o]nly when law enforcement officials operate in ‘deliberate, reckless, or grossly

negligent disregard for Fourth Amendment rights,’” White, 874 F.3d at 497 (quotation marks

omitted) (quoting Davis v. United States, 564 U.S. 229, 237–38 (2011)). Accordingly, the

exclusionary rule does not “bar the admission of evidence seized in reasonable, good-faith reliance

on a search warrant that is subsequently held to be defective[,]” i.e., where “the offending officers

acted in the objectively reasonable belief that their conduct did not violate the Fourth

Amendment.” Leon, 468 U.S. at 905, 918–19. When determining whether the executing officers

acted in good faith, we are “bound by the four corners of the affidavit . . . and

. . . may not consider what the officer executing the warrant knew or believed[,]” United States v.

Rose, 714 F.3d 362, 367 (6th Cir. 2013), unless that “extra-affidavit information was made known

to the issuing magistrate[,]” Hython, 443 F.3d at 488.



                                                -7-
No. 17-3503
United States v. Tucker
        Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable

where “a reasonably well[-]trained officer would have known that the search was illegal despite

the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. One such situation is where the

affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.” Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–

11 (1975) (Powell, J., concurring in part)); see also White, 874 F.3d at 496. At various times, we

have further defined a bare-bones affidavit as one that “states suspicions, or conclusions, without

providing some underlying factual circumstances regarding veracity, reliability, and basis of

knowledge[,]” United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998) (quoting Weaver,

99 F.3d at 1378), one that “asserts ‘only the affiant’s belief that probable cause existed[,]’” White,

874 F.3d at 496 (quoting United States v. Williams, 224 F.3d 530, 533 (6th Cir. 2000)), or one that

is “so vague as to be conclusory or meaningless[,]” United States v. Frazier, 423 F.3d 526, 536

(6th Cir. 2005) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc)).

        In contrast, an affidavit is not bare bones so long as it “contain[s] a minimally sufficient

nexus between the illegal activity and the place to be searched[.]” Carpenter, 360 F.3d at 596.

Previously, we have said that a minimally sufficient nexus exists “[i]f the reviewing court is ‘able

to identify in the averring officer’s affidavit some connection, regardless of how remote it may

have been’—‘some modicum of evidence, however slight’—‘between the criminal activity at issue

and the place to be searched[.]’” White, 874 F.3d at 497 (quoting United States v. Laughton,

409 F.3d 744, 749–50 (6th Cir. 2005)). Given this, “it is entirely possible that an affidavit could

be insufficient for probable cause but sufficient for ‘good-faith’ reliance.” United States v.

Washington, 380 F.3d 236, 241 (6th Cir. 2004).




                                                  -8-
No. 17-3503
United States v. Tucker
         Such permissive language can be misleading, however; that is because not every iota of

evidence qualifies as a modicum. For instance, we have been clear that “a single piece of evidence

which the law of the station house shop would recognize as clearly insufficient” is so vague as to

be conclusory or meaningless. Carpenter, 360 F.3d at 596 (quoting United States v. Williams, 3

F.3d 69, 74 (3d Cir. 1993)). More generally, an affidavit qualifies as “bare bones” where (1) a

well-established legal principle precludes a finding of probable cause based upon the particularized

facts it contains, (2) all reasonably well-trained officers would be acquainted with that principle,

and (3) no such officer “could conclude that the present affidavit was [outside] the operation of

that rule.” United States v. Savoca, 761 F.2d 292, 297, 298 n.10 (6th Cir. 1985). One such legal

principle is that “[t]he critical element in a reasonable search is not that the owner of the property

is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be

searched for and seized are located on the property to which entry is sought.” Id. at 297 (quoting

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)). Precedent therefore gives guidance as to

what does and does not count as a minimally sufficient nexus.

                                                           B

         The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit.4 Stripped

down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the

Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a

brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent

to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested




4
  Because this determination resolves the question of whether the good-faith exception applies to the Saxon Avenue
search, we need not consider whether the exception is inapplicable on other grounds, specifically, whether the warrant
was “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the
executing officers [could not have] reasonably presume[d] it to be valid,” Leon, 468 U.S. at 923 (citing Massachusetts
v. Sheppard, 468 U.S. 981, 988–91 (1984)).

                                                          -9-
No. 17-3503
United States v. Tucker
that drug dealing may have occurred there. Given that all reasonably well-trained officers must

be presumed to know that “‘a suspect’s mere presence . . . at a residence is too insignificant a

connection with that residence to establish that relationship’ necessary to a finding of probable

cause,” Savoca, 761 F.2d at 297 (quoting United States v. Flores, 679 F.2d 173, 175 (9th Cir.

1982)); cf. United States v. Helton, 314 F.3d 812, 825 (6th Cir. 2003) (“A reasonable officer knows

that evidence of three calls a month to known drug dealers from a house . . . falls well short of

establishing probable cause that the house contains evidence of a crime.”), and because the

remaining evidence is not probative of drug trafficking at the residence, it was objectively

unreasonable for the executing officers in this case to believe that their conduct comported with

the Fourth Amendment.

       The government attempts to resist this conclusion by pointing to additional, allegedly

“critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that

when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always—

used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon

stopped to purchase household items that are sometimes—but not always—used by drug

traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting

cocaine. Based on these additional facts, the government claims that a reasonable law enforcement

officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on

February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of

cocaine,” that “a portion of the currency recovered in ROCHA-AYON’s possession was obtained

from TUCKER” that day, and that Rocha-Ayon had “purchased the vacuum sealer and bags to

conceal the currency he was to obtain from TUCKER[.]” Affidavit for Search Warrant for 791

Saxon Avenue ¶ 24.



                                               -10-
No. 17-3503
United States v. Tucker
         Contrary to the government’s assertion, no reasonably well-trained officer could draw such

conclusions based upon the particularized facts in the affidavit; rather, the officers speculated

based upon hunches (albeit, good hunches, as their suspicions proved correct). To see why, it

helps to note what is absent from the Saxon Avenue affidavit. It does not contain any indication

of drug dealing at the residence.5 Nor does the affidavit provide any specific basis for concluding

that Rocha-Ayon was transporting drugs to that location when he was arrested on February 19.

Furthermore, it tells us nothing about the relationship between Rocha-Ayon and Tucker. And,

most importantly, it does not mention what Rocha-Ayon did once he arrived at the residence on

February 17.6 For all that appears (and he was under surveillance), Rocha-Ayon sat quietly in his

car, interacted with no one, and neither retrieved nor left anything at the address. Rocha-Ayon’s

purchase of drug-trafficking paraphernalia—i.e., the vacuum sealer and bags—therefore cannot

constitute evidence of criminality at the Saxon Avenue residence because there is no indication

that they ever left his car, let alone that they made their way into the residence.

         Once the government’s additional evidence is discounted, however, the Saxon Avenue

affidavit “provides nothing more than a mere ‘guess that contraband or evidence of a crime would

be found[.]’” White, 874 F.3d at 496 (quoting United States v. Schultz, 14 F.3d 1093, 1098 (6th

Cir. 1994)). Because Tucker’s 17-year-old conviction is not probative of whether he was using

his current residence to traffic drugs, see United States v. Christian, 893 F.3d 846, 863 (6th Cir.

2018) (“Absent additional recent reliable evidence, . . . old criminal convictions cannot support a

finding that drug activity is continuous at the time of the search.”); see also United States v. Brown,



5
 Admittedly, the affidavit did state that four months earlier the Akron Police Department received a call, provenance
unknown, which suggested that drug dealing was occurring at the house. There is no indication in the affidavit,
however, that the police found the call to be credible, let alone that they found evidence corroborating the claim.
6
 The absence of such information is all the more pronounced given that the affidavit details the arrival and departure
of cars from the driveway of the residence.

                                                        -11-
No. 17-3503
United States v. Tucker
828 F.3d 375, 385 (6th Cir. 2016) (stating that a 12-year-old conviction for conspiracy to distribute

marijuana is not probative of whether a defendant is using his residence for drug trafficking), the

government’s appeal rests entirely on Rocha-Ayon’s brief appearance in the driveway of 791

Saxon Avenue. As noted earlier, no reasonably well-trained officer would think this sufficient to

establish probable cause.

       This conclusion is supported by our refusal to apply the good-faith exception in cases

where there existed a more substantial nexus between the place to be searched and illegal activity.

In Helton, for instance, a magistrate judge authorized a search warrant for a residence based on,

inter alia, telephonic records and an anonymous tip. 314 F.3d at 820–21. Specifically, the

affidavit stated that over a ten-month period, 31 calls had been made between suspected drug

dealers and the residence and that a tipster had reported that the house contained “stacks” of

money, some of which was being held on behalf of a suspected drug dealer. Ibid. We held that

the affidavit was bare bones because “no reasonable officer would afford much weight to the

anonymous tipster’s statements” and because “[a] reasonable officer knows that evidence of three

calls a month to known drug dealers from a house . . . falls well short of establishing probable

cause.” Id. at 824–25. Here, the connection between the Saxon Avenue residence and drug activity

was even more tenuous, as the suspected drug dealer’s (i.e., Rocha-Ayon’s) interaction with the

home was a one-time event and because police lacked even an anonymous informant linking the

home to drug activity.

       Our opinions in Savoca, Van Shutters, and Frazier do not contradict this analysis. As we

explained in United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), in each of these cases,

“[t]he application of the good-faith exception . . . depended on the fact that each of the defendants

were known to have participated previously in the type of criminal activity that the police were



                                                -12-
No. 17-3503
United States v. Tucker
investigating.” Id. at 526. However, unlike here, in those cases such knowledge consisted of more

than a mere awareness of a long-ago conviction; rather, it constituted significant, probative

evidence of the defendants’ current schemes. In Savoca, we held that officers could infer that the

defendants intended to continue their criminal activity based on the crime alleged (bank robbery)

and the fact that they had perpetrated a series of such crimes, albeit at unspecified prior times.

761 F.2d at 298 n.9. In Van Shutters, we held that the affidavit was not bare bones because it

stated that the defendant had been identified by his victims, described the items that the defendant

had used to perpetrate an auto-theft scheme, and detailed his criminal activities, some of which

had occurred only a few months prior to the search. 163 F.3d at 333–34, 337–38. Finally, in

Frazier, we held that the good-faith exception applied to a search of a suspected drug dealer’s

current residence because two months earlier, authorities had found drugs at his former residence

shortly after he had moved out. 423 F.3d at 537.

       For the foregoing reasons, the district court properly refused to apply the good-faith

exception to the search of the Saxon Avenue residence. We therefore affirm the district court’s

grant of Tucker’s motion to suppress evidence seized from that location.

                                                 C

       Having held that the good-faith exception does not apply to the evidence seized from Saxon

Avenue, we must next consider whether this determination precludes us from finding that the

officers acted in good faith when they conducted the Penguin Avenue search. Put differently, the

question before us now is whether officers could have acted in reasonable, good-faith reliance on

the Penguin Avenue search warrant even though the underlying affidavit was tainted by evidence

obtained from the Saxon Avenue residence. Because this court has issued facially inconsistent

directives on this matter, some judicial housekeeping is first necessary.



                                               -13-
No. 17-3503
United States v. Tucker
        The uncertainty surrounding this issue stems from a pair of published opinions, filed ten

days apart in late 2005. In United States v. Davis, 430 F.3d 345 (6th Cir. 2005), we stated, without

qualification, that “the Leon good-faith exception is inapplicable where a warrant was secured in

part on the basis of an illegal search or seizure.” Id. at 358 n.4. In the later case United States v.

McClain, 444 F.3d 556 (6th Cir. 2005), however, we refused to apply the exclusionary rule even

though the warrants in question relied in part on evidence seized during an illegal, warrantless

search because (1) “the officers who sought and executed the search warrants acted in good faith”

and (2) “the facts surrounding the initial . . . search were close enough to the line of validity to

make the executing officers’ belief in the validity of the search warrants objectively reasonable[.]”

Id. at 566.

        Faced with these competing opinions, we are bound by McClain. While it is well-

established that “[a] panel of this Court cannot overrule the decision of another panel[,]” Salmi v.

Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), it is also the case that “one

panel of this court is not bound by dicta in a previously published panel opinion[,]” United States

v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993). Because Davis’s discussion of the good-faith

exception was dicta—not only was its analysis cursory and relegated to a footnote, the government

had not argued that the good-faith exception applied—it does not constitute binding precedent.

See United States v. Fugate, 499 F. App’x 514, 519, 519 n.5 (6th Cir. 2012). Accordingly, per

Salmi and Burroughs, we must follow the holding in McClain. The question before us, therefore,

is whether “this is one of those unique cases in which the Leon good[-]faith exception should apply

despite an earlier Fourth Amendment violation.” McClain, 444 F.3d at 565 (emphasis added).

        It is not. In McClain, we refused to apply the exclusionary rule because we found that

there was “nothing more that [the officer who executed the follow-on search] ‘could have or should



                                                -14-
No. 17-3503
United States v. Tucker
have done under the[] circumstances to be sure his search would be legal.’” Id. at 566 (quoting

United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985)). And we made that holding because,

inter alia, the circumstances of the earlier, illegal, warrantless search did not render the executing

officer’s belief in the validity of the search warrants objectively unreasonable. Ibid. For the

limited exception recognized in McClain to apply here, then, it must be the case that the facts

surrounding the Saxon Avenue search were “close enough to the line of validity” that an

objectively reasonable officer could believe in the validity of a subsequent search warrant secured,

in part, on the basis of evidence seized during that earlier search. This requires, at a minimum,

that the Leon exception apply to the initial search; after all, if a reasonably well-trained officer

would have known that the initial search was illegal, it is hard to see how such an officer could

believe in the validity of the second warrant.

        In short, when determining whether the McClain exception applies, it matters whether the

initial, illegal search was conducted with a warrant. When only the second search is conducted

with a warrant, as in McClain, we ask: (1) whether “the officers who sought and executed the

search warrants acted in good faith” as prescribed by Leon and (2) whether “the facts surrounding

the initial . . . search were close enough to the line of validity to make the executing officers’ belief

in the validity of the search warrants objectively reasonable[.]” 444 F.3d at 566. However, when

both searches are conducted pursuant to a search warrant, each warrant must be sought and

executed by law enforcement in good faith as prescribed by Leon. For the good-faith exception to

apply to the evidence seized at the Penguin residence, it must therefore be the case that: (1) the

Penguin search warrant was sought and executed by law enforcement in good faith as prescribed

by Leon, and (2) the Saxon search warrant was sought and executed by law enforcement in good

faith as prescribed by Leon.



                                                  -15-
No. 17-3503
United States v. Tucker
       As detailed above, the problems with the Saxon Avenue search were so glaringly obvious

that the Leon exception does not apply. See supra Part II.B. And because the second part of the

test is not met, we need not consider whether the Penguin search warrant was sought and executed

in good faith. As such, the district court was correct to hold that the good-faith exception does not

bar the application of the exclusionary rule to evidence seized from the Penguin Avenue residence.

                                                 III

        For the reasons stated above, we AFFIRM the district court’s grant of Tucker’s motion

to suppress all evidence seized from the Saxon Avenue and Penguin Avenue residences.




                                                -16-
