            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.



                           STATE OF MICHIGAN

                             COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       February 4, 2020
                Plaintiff-Appellee,

 v                                                                     No. 345559
                                                                       Ottawa Circuit Court
 MARCUS LAMOND POWELL,                                                 LC No. 17-041204-FH

                Defendant-Appellant.


Before: MARKEY, P.J., and GLEICHER and M.J. KELLY, JJ.

GLEICHER, J. (concurring).

       I concur with the majority’s conclusion that the good-faith exception to the exclusionary
rule applies in this case. I write separately because I respectfully disagree with the majority’s
analysis.

        Suppression of illegally obtained evidence “is not an automatic consequence of a Fourth
Amendment violation.” Herring v United States, 555 US 135, 137; 129 S Ct 695; 172 L Ed 2d
496 (2009). When a search is conducted in reasonable and good-faith reliance on a search warrant
the exclusionary rule does not apply, even if the warrant is later held invalid. United States v Leon,
468 US 897, 920-921; 104 S Ct 3405; 82 L Ed 2d 677 (1984). When considering whether this
good-faith exception applies, courts must focus on “the objectively ascertainable question whether
a reasonably well trained officer would have known that the search was illegal despite the
magistrate’s authorization.” Id. at 922 n 23 (emphasis added). The Supreme Court repeatedly
emphasized in Leon that the inquiry is an objective one: “We conclude that the marginal or
nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id.
at 922 (emphasis added). “[T]he officer’s reliance on the magistrate’s probable-cause
determination and on the technical sufficiency of the warrant he issues must be objectively
reasonable[.]” Id. (emphasis added).
        Leon advanced four circumstances in which an officer’s reliance on a warrant would not
be objectively reasonable. Defendant relies on this one: “Nor would an officer manifest objective
good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.” Id. at 923 (cleaned up).1 This sort
of affidavit offers the reviewing magistrate only “bare bones” instead of a “substantial basis” for
discerning “a fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983). “An affidavit
that states suspicions, beliefs, or conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of knowledge, is a ‘bare bones’ affidavit.”
United States v Weaver, 99 F3d 1372, 1378 (CA 6, 1996). Leon posits that an affidavit may “fall
short” of describing probable cause, yet include enough information to qualify for the good-faith
exception. United States v Hines, 885 F3d 919, 928 (CA 6, 2018).

        Here, the trial court determined that the affidavit signed by Detective John Rathjen
“absolutely [did] not establish the necessary probable cause to issue the search warrant,” and I
agree. The next question is whether the affidavit was so deficient that the officers who executed
it could not have been acting in good faith.

        Although defendant’s argument in support of suppression centered on whether “the
affidavit was so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable,” the trial court analyzed the facts under a different good-faith rubric:
whether “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[.]” United States v Hython,
443 F3d 480, 484 (CA 6, 2006). The trial court applied this prong of the good-faith exception,
reasoning:

       The officer writes in here, although it’s incomplete, that there were two separate
       purchases of narcotics at the residence and that [Detective Rathjen] received a tip
       from an anonymous informant about a month before. There was obviously a history
       of drug activity involving [defendant] and also there were other informants
       confirming his residence. So when you have multiple situations and you take those
       multiple situations to a district court magistrate and say I’ve got a person who’s
       been selling drugs, he has a history of selling drugs, I got a tip he’s selling drugs,
       there’s two informants selling drugs, and other informants say he lives there, in that
       situation the magistrate has not wholly abandoned his judicial role and acted as an
       agent of law enforcement, so that does not apply.




1
  This opinion uses the parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets,
alterations, internal quotation marks, and unimportant citations have been omitted from the
quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


                                                 -2-
        The majority’s analysis barely addresses any of Leon’s exceptions to good faith. Rather,
relying primarily on a federal district court opinion from the Southern District of New York, the
majority holds that the warrant was executed in good faith because “[t]he officer had personal
knowledge regarding the controlled buys, and he personally knew that the unnamed purchaser was
credible and that the information was reliable because the officer surveilled the transactions.”

        By engaging in a subjective analysis focused on the officer’s personal knowledge, the
majority strays far from the path Leon established. Indeed, the majority’s legal error could not be
plainer: “[W]e . . . eschew inquiries into the subjective beliefs of law enforcement officers who
seize evidence pursuant to a subsequently invalidated warrant . . . . Accordingly, our good-faith
inquiry is confined to the objectively ascertainable question whether a reasonably well trained
officer would have known that the search was illegal despite the magistrate’s authorization.” Leon,
468 US at 923 n 23. See also United States v Laughton, 409 F3d 744, 751 (CA 6, 2005) (“[A]
determination of good-faith reliance, like a determination of probable cause, must be bound by the
four corners of the affidavit.”).2 By considering what was in the officer’s head rather than within
the affidavit, the majority disregards Leon and slams the door on virtually all good-faith
exceptions.

        Distorting Leon is unnecessary. Applying an objective standard, I reach the same ultimate
conclusion as did the trial court and the majority. Although the affidavit lacks any allegations
regarding the reliability of the informant or the identity of WE-2441, the totality of the
circumstances described in the affidavit, when read in a common-sense fashion, establishes “a
minimally sufficient nexus between the illegal activity and the place to be searched.” United States
v Carpenter, 360 F3d 591, 596 (CA 6, 2004). The United States Court of Appeals for the Sixth
Circuit has found the “nexus” adequate to justify good faith when “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[.]” United States v White, 874 F3d 490, 497 (CA 6, 2017) (cleaned up). I
would adopt the same general approach.

       The affidavit contained unsubstantiated allegations that defendant lived at the home for
which the warrant was sought, and that two controlled buys occurred there. That should not have
been enough to establish probable cause in the mind of a magistrate, but I cannot conclude that a
reasonably trained officer would have believed the averments so deficient as to render




2
  The majority also suggests that only “governmental misconduct” can overcome the good-faith
exception. I respectfully disagree with this premise. Simple negligence can also eliminate good
faith. See Groh v Ramirez, 540 US 551, 565; 124 S Ct 1284; 157 L Ed 2d 1068 (2004);
Massachusetts v Sheppard, 468 US 981, 988-989; 104 S Ct 3424; 82 L Ed 2d 737 (1984).



                                                -3-
unreasonable a belief that probable cause existed for the search. 3 On that basis, I concur with the
majority.



                                                             /s/ Elizabeth L. Gleicher




3
  The majority asserts: “We would hope … that a reasonably trained officer would have found the
affidavit deficient such that it would be unreasonable to believe that probable cause existed.”
Respectfully, this statement demonstrates that the majority misapprehends the good faith
exception. If an officer executing the warrant believes that the affidavit in support of a warrant
failed to establish probable cause for a search, the officer has executed the warrant in bad faith.
Once again, here is the controlling language from Leon: “Nor would an officer manifest objective
good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as
to render official belief in its existence entirely unreasonable.” Leon at 923. The majority’s
analysis bears no relationship to Leon and in fact contradicts it.


                                                -4-
