                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0794n.06

                                            No. 09-5703                                  FILED
                                                                                     Dec 28, 2010
                            UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA                       :
                                               :
     Plaintiff-Appellant,                      :
                                               :        ON APPEAL FROM THE
v.                                             :        UNITED STATES DISTRICT COURT
                                               :        FOR THE MIDDLE DISTRICT OF
CHARLES E. RICE                                :        TENNESSEE
                                               :
         Defendant-Appellee.                   :        OPINION



BEFORE: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*


PER CURIAM:

         Plaintiff/Appellant, the United States of America, appeals the district court’s suppression

of the fruits of the search of the residence of Defendant/Appellee, Charles Rice, pursuant to a

search warrant.

         For the reasons stated below, we REVERSE.

                                                   I.

         On September 17, 2008, a law enforcement officer with the Thirteenth Judicial District Drug

Task Force in the State of Tennessee submitted an affidavit in support of a request for a search

warrant to a state court judge.       The search warrant request was for the residence of the



         *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 09-5703
United States v. Rice

Defendant/Appellee, Charles Rice. The relevant portion of the law enforcement officer’s affidavit

stated the following:

       On September 16, 2008 Agents with the 13th Judicial District Drug Task [Force]
       (JDTF) were contacted by a confidential source regarding activity by Charles Rice.
       Agents from the 13th JDTF met with the confidential source at Attorney Shawn Fry’s
       office, with Attorney Fry present during the meeting. The confidential source
       advised agents that Charles Rice was on his way home to 480 Rice Barnes Lane from
       California transporting several pounds of methamphetamine. The confidential source
       advised agents that he would be driving a white Toyota 4 door Matrix belonging to
       his girlfriend Julie Stinson. Agent Randolph verified through a citizen informant and
       other law enforcement personnel that Julie Stinson is known to be a girlfriend to
       Charles Rice. Agent Randolph learned through this confidential source that his
       information was coming to him from an unidentified citizen informant who was too
       afraid to talk with law enforcement about Charles Rice. Agent Randolph did
       convince the citizen informant to talk with him long enough to say that when Mr.
       Rice arrives home from his trips to California he hides the methamphetamine[] in
       flower pots around the residence. The confidential source advised Agents that Mr.
       Rice stored stolen motorcycles and motorcycle parts in an outbuilding on the property
       at 480 Rice Barnes Lane. Agents were also informed that it was a common practice
       for Mr. Rice to bury money and guns on his property. The confidential source
       advised agents that Mr. Rice would have a bright yellow older model Chevy Impala
       on the property for his personal use. The confidential source provided agents with
       a hand drawn map of the property, the home and the outbuildings on the property at
       480 Rice Barnes Lane.

       When agents left Attorney Fry’s office they ran a criminal history on Charles E. Rice.
       The criminal history revealed to the agents that Mr. Rice has a long history of arrest,
       leading as far back as 1970, in California. The history also shows that Mr. Rice has
       prior arrest[s] for possession of schedule II and schedule VI controlled substances.
       The arrest records also show that Mr. Rice has been charged with carrying weapons
       while being in possession of controlled substances and has been charged on more
       than one occasion with being in possession of an explosive device.

       On September 17, 2008 agents from the 13th JDTF drove to 480 Rice Barnes Lane.
       Agents hoped to speak with neighbors, but found no one at home. Agents had been
       advised from other law enforcement that there had been numerous complaints made
       to the White County Sheriff’s Department concerning Mr. Rice, from his neighbors.
       While agents were close to Mr. Rice’s residence they observed a white Toyota 4 door
       Matrix and a bright yellow older model Chevy Impala. Agents also found that the

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No. 09-5703
United States v. Rice

       hand drawn map provided to them from the confidential informant was accurate.
       When agents arrived back at the office a vehicle registration query was performed on
       Mr. Rice and Julie Stinson. Agents found that Julie Stinson has a 2004 white Toyota
       Matrix registered to her and that Charles Rice has a 1966 Chevy Impala registered
       to him.

       On September 17, 2008 Agents met with a confidential informant provided to them
       from other law enforcement personnel. This confidential informant has provided
       credible and reliable information to law enforcement in the past. This confidential
       informant has provided information to law enforcement that has led to the arrest and
       conviction of drug defendants on at least eight (8) separate occasions. This
       confidential informant advised agents that within the last year to year and a half he
       provided iodine to Charles Rice to cook methamphetamine. Confidential informant
       told agents that in exchange for the iodine Mr. Rice would give him money and
       methamphetamine. The confidential informant advised agents that this exchange
       took place at least ten (10) times. This confidential informant also advised agents
       that when Mr. Rice took the trip to California he would have the white Toyota
       Matrix, owned by Julie Stinson, serviced in Cookeville and he would drive it to
       California.

(R.18-2). The state court judge signed the search warrant and it was executed the following day on

September 18, 2008.

       The search of Rice’s home yielded quantities of methamphetamine and marijuana as well as

assorted drug paraphernalia. (R.18-1). The search also yielded a loaded pistol in Rice’s bedroom

and several other firearms located throughout Rice’s property. (Id.).

       As a result, Rice was indicted on one count of possession of methamphetamine with intent

to distribute. (R.1). Rice moved to suppress the evidence seized from the search of his residence.

(R.18). The district court granted Rice’s motion to suppress, holding that the search warrant lacked

probable cause and that the good faith exception to the exclusionary rule did not apply. (R.23). On

June 5, 2009, the United States filed a timely notice of appeal. (R.32).



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United States v. Rice

                                                  II.

       This court reviews the district court’s decision on a motion to suppress using a mixed

standard of review. Findings of fact are reviewed for clear error and conclusions of law are

reviewed de novo. United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009). Where the

district court is itself a reviewing court, this court owes the district court’s conclusions no

particular deference. United States v. King, 227 F.3d 732, 739 (6th Cir. 2000); United States v.

Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996); United States v. Leake, 998 F.2d 1359, 1362 (6th

Cir. 1993).

                                                  A.

       On appeal, the government advances two arguments. First, the government argues that the

circumstances contained in the affidavit for the search warrant in question did in fact constitute

probable cause. Second, it argues that the district court incorrectly rejected the good faith exception

under United States v. Leon, 468 U.S. 897 (1984). Because we find merit in appellant’s second

argument, we will not address the question of whether the search warrant lacked probable cause. See

United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998); United States v. Savoca, 761

F.2d 292, 294 (6th Cir. 1985).

                                                  B.

       In United States v. Leon, the Supreme Court officially recognized the good faith exception

to the exclusionary rule, which requires suppression of all evidence obtained in violation of the

Fourth Amendment. 468 U.S. 897. In doing so, the Supreme Court carefully weighed the benefits

and detriments of recognizing a good faith exception to the exclusionary rule. “[O]ur evaluation of

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No. 09-5703
United States v. Rice

the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying

on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence

should be admissible in the prosecution's case in chief.” Id. at 913.

        However, the Supreme Court also recognized that the good faith exception was not without

limits. Based on the holding of Leon, we have recognized four specific instances in which the good

faith exception would not apply:

         (1) where the issuing magistrate was misled by information in an affidavit that the
        affiant knew was false or would have known was false except for his reckless
        disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial
        role and failed to act in a neutral and detached fashion, serving merely as a rubber
        stamp for the police; (3) where the affidavit was nothing more than a “bare bones”
        affidavit that did not provide the magistrate with a substantial basis for determining
        the existence of probable cause, or where the affidavit was so lacking in indicia of
        probable cause as to render official belief in its existence entirely unreasonable; and
        (4) where the officer's reliance on the warrant was not in good faith or objectively
        reasonable, such as where the warrant is facially deficient.

United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009) (citing United States v. Rice, 478 F.3d

704, 711 (6th Cir. 2007)). The district court herein relied on the fourth exception to the good faith

rule as the basis to grant Rice’s motion to suppress.

        In doing so, the district court ruled that “no reasonably trained officer could have believed

the search to be legal, despite the fact that a judge had issued a warrant.” (R.23 at 9). The district

court rejected the good faith exception stating that there was a “lack of any temporal or locational

nexus between the information provided by the confidential informant and the subsequent search.”

(Id.). This is incorrect.




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No. 09-5703
United States v. Rice

         The affidavit that supported the search warrant specifically stated that a citizen informant told

police that “when Mr. Rice arrives home from his trips to California he hides the methamphetamines

[sic] in flower pots around the residence.” (R.18-2 at 2).

         The affidavit also stated that a separate confidential source advised police that “it was a

common practice for Mr. Rice to bury money and guns on his property.” (Id.). The affidavit also

included information from a third confidential informant, who told police that, at least ten times in

an eighteen-month period preceding the search warrant, he had provided Charles Rice with iodine

in exchange for money and methamphetamine.1 (Id.).

         Multiple decisions of this court have held that “a nexus between the place to be searched and

the item to be seized may sometimes be inferred.” Higgins, 557 F.3d at 391 (6th Cir. 2009) (citing

United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008)).

         In a recent line of cases, we have held that an issuing judge may infer that drug
         traffickers use their homes to store drugs and otherwise further their drug trafficking.
         See, e.g., United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002); see also
         United States v. Gunter, 266 Fed. App’x 415, 419 (6th Cir. 2008) (unpublished
         decision) (noting that our precedents establish that there is a nexus between a drug
         dealer's criminal activity and the dealer's residence when there is reliable evidence
         connecting the criminal activity to the residence) . . . .

United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008). Accord United States v. Martinez,

No.95-3962, 1997 WL 26461, at *2 (6th Cir. Jan.22, 1997); United States v. Davidson, 936 F.2d

856, 860 (6th Cir. 1991); United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir. 1976).



         1
           Iodine is a precursor material used in manufacturing methamphetamine. See U.S. Drug
E n f o r ce m e n t A d m i n i s t r a t i o n c l a n d es t i n e l a b o r a t o r y i nd i c a t o r s l i s t a t
http://www.justice.gov/dea/concern/clandestine_indicators.html.

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No. 09-5703
United States v. Rice

        Such an inference is reasonable because “probable cause requires only a probability or

substantial chance of criminal activity, not an actual showing of such activity." Illinois v. Gates, 462

U.S. 213, 244 n.13 (1983). Here, the search warrant affidavit contained information indicating that

Rice used his residence as a place to hide the drugs he was suspected of possessing and/or

manufacturing. This information renders the law enforcement officer’s reliance upon the search

warrant objectively reasonable. “[T]his court has noted that reasonably well trained officers may

infer a nexus between a place to be searched and items sought, even when the affidavit fails to

establish probable cause.” United States v. Sneed, 385 Fed. App’x 551, 559-60 (6th Cir. 2010).

        On multiple occasions, this court has held that the Leon good faith exception was applicable

where the search warrant was later determined to be invalid. See United States v. Washington, 380

F.3d 236, 242 (6th Cir. 2004); United States v. Carpenter, 360 F.3d 591, 595-97 (6th Cir. 2004) (en

banc); United States v. Van Shutters, 163 F.3d at 336-38; United States v. Schultz, 14 F.3d 1093 (6th

Cir. 1994); United States v. Savoca, 761 F.2d 292 (6th Cir. 1985). Therefore, without deciding the

question, even if the search warrant in the instant case was invalid, the Leon good faith exception

would still apply.

        The fact that an affidavit fails to establish probable cause is not determinative of whether that

affidavit could support a reasonable belief in the validity of the search warrant for purposes of the

exclusionary rule. United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006). The reason is

that the standard for applying the good faith exception of Leon is lower than that which is required

to find probable cause.



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No. 09-5703
United States v. Rice

       A police officer’s objectively reasonable reliance on a signed search warrant requires “a less

demanding showing” than the “substantial basis” threshold required for probable cause. Higgins,

557 F.3d at 391 (6th Cir. 2009) (quoting Carpenter, 360 F.3d at 595 (6th Cir. 2004) (en banc)). “If

the inquiries were identical, the probable cause determination would subsume the good faith

exception.” McPhearson, 469 F.3d at 526 (citing United States v. Laughton, 409 F.3d 744, 749 (6th

Cir. 2005)).

       Here, the affidavit was not so lacking in information that a reasonable law enforcement

officer’s reliance upon it was per se unreasonable. The affidavit contained information from several

different sources indicating a likelihood of Rice’s involvement in drug trafficking. At least one

source connected the alleged unlawful activity to the residence that was eventually searched. Thus,

while the affidavit arguably may have been deficient, the good faith exception under Leon saves the

search, and the fruits thereof, from application of the exclusionary rule.

       REVERSED.




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