       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Hammond                     No. 01-5358
    ELECTRONIC CITATION: 2003 FED App. 0443P (6th Cir.)
                File Name: 03a0443p.06                    P. Wisdom, Jr., ASSISTANT UNITED STATES
                                                          ATTORNEY, Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                                BOGGS, Chief Judge. Clifton Glen Hammond was named
                                                          in a seven-count superseding indictment issued in September
             Plaintiff-Appellee, -                        1999 on the basis of evidence seized from his property
                                   -
                                   -   No. 01-5358        pursuant to two search warrants. Hammond was charged in
            v.                     -                      Counts One through Seven respectively with manufacturing
                                    >                     more than fifty marijuana plants, in violation of 21 U.S.C.
                                   ,                      § 841(a)(1), possessing numerous firearms “during and in
 CLIFTON GLEN HAMMOND ,            -
         Defendant-Appellant. -                           relation to a drug trafficking crime,” in violation of 18 U.S.C.
                                                          § 924(c)(1), possessing with the intent to distribute
                                  N                       methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
      Appeal from the United States District Court        possessing a machine gun “during and in relation to a drug
     for the Eastern District of Kentucky at London.      trafficking crime,” in violation of 18 U.S.C. § 924(c)(1),
   No. 99-00194—Jennifer B. Coffman, District Judge.      possessing a machine gun, in violation of 18 U.S.C. § 922(o),
                                                          possessing a “sawed-off shotgun,” in violation of 26 U.S.C.
               Argued: December 4, 2002                   § 5861(d), and possessing an unregistered destructive device,
                                                          in violation of 26 U.S.C. § 5861(d).
        Decided and Filed: December 15, 2003
                                                            Following his indictment, Hammond entered a plea of not
 Before: BOGGS, Chief Judge; and GUY and NELSON,          guilty and subsequently filed a motion to suppress evidence
                  Circuit Judges.                         and a motion to dismiss the charges against him that alleged
                                                          he possessed firearms “during and in relation to” his crime of
                  _________________                       drug trafficking, pursuant to 18 U.S.C. § 924(c)(1). After a
                                                          hearing on the motion to suppress, Hammond further moved
                       COUNSEL                            the district court for a Franks hearing. See Franks v.
                                                          Delaware, 43 U.S. 154 (1978) (holding that a hearing is
ARGUED: Warren N. Scoville, WARREN N. SCOVILLE            required when a defendant makes a substantial preliminary
& ASSOCIATES, London, Kentucky, for Appellant. Charles    showing that a false statement necessary to the finding of
P. Wisdom, Jr., ASSISTANT UNITED STATES                   probable cause was made knowingly and intentionally, or
ATTORNEY, Lexington, Kentucky, for Appellee.              with reckless disregard for the truth, and was included by an
ON BRIEF: Warren N. Scoville, WARREN N. SCOVILLE          affiant in a search warrant affidavit). The court granted the
& ASSOCIATES, London, Kentucky, for Appellant. Charles    Franks hearing, but ultimately denied Hammond’s motions to

                            1
No. 01-5358                 United States v. Hammond         3   4      United States v. Hammond                   No. 01-5358

suppress and dismiss. Hammond, therefore, pled guilty to             have determined that Hammond does occupy this
Counts Two, Three, Six, and Seven under a conditional plea           location. Since this time Rockcastle Co. Sheriff’s office
agreement, while reserving his right to appeal the adverse           has received numerous complaints on this residence and
determinations of his motions to suppress and to dismiss. On         subject stating that the operation was there, confirming
the government’s motion, the remaining counts were                   the complaint from Holt.
dismissed, and Hammond was sentenced to thirty-seven
months on Count 2, to be served consecutively to the             As it turned out, several of the statements made by Detective
sentences imposed on Counts Three, Six, and Seven, for a         Engle in the above quoted portion of his affidavit were false.
total of ninety-seven months. Hammond now appeals the            First, Holt did not state that the operation was “inside a side
district court’s denial of his two motions to suppress and       room of the building,” nor did he mention an “indoor grow
dismiss. Because there was no probable cause for the first       operation,” although he did refer to Hammond’s garage.
search warrant and because the good faith rule established in    Second, although Detective Engle’s statement implies that he
United States v. Leon, 468 U.S. 897 (1984), does not apply       drove by Hammond’s property as a result of the complaint
here, we reverse the district court’s denial of Hammond’s        made by Holt, and in so doing verified the information
motion to suppress.                                              supplied by Holt, that was not the case. Detective Engle
                                                                 admits that he did not find out about Holt’s complaint until
                             I                                   August 5 or 6, when he filled out the application for the
                                                                 warrant and instead drove by Hammond’s property at an
  On August 6, 1999, Detective Tim Engle filled out an           earlier date, on the basis of “numerous,” unspecified, and
application for a warrant to search Hammond’s property,          anonymous complaints received by the police, complaining
including all buildings, vehicles, and persons present on the    about the “Hammonds raising marijuana up on Red Hill.”
property at the time of the search. Probable cause for the       The dispatcher admitted that the brother of Glen Hammond
warrant was substantiated by Detective Engle’s affidavit,        lived on Red Hill, and professed ignorance of how many other
which was attached to the application. In the affidavit,         Hammond households may exist on Red Hill in Rockcastle
detective Engle stated that:                                     County. Third, Engle testified at the evidentiary hearing that
                                                                 all he was able to verify by driving by Hammond’s property
  During the first week of April 1999, [Deputy] Danny            was the fact that a driveway existed off the main road at the
  Keeney received information from Jeremy Holt stating           entrance to Hammond’s property with a gate across it.
  that he had attempted to steal marijuana from an indoor
  grow operation belonging to Glenn Hammonds [sic] in              Detective Engle’s affidavit, however, did not end there.
  Rockcastle Co. on KY-1955. Holt stated that he was             Engle went on to explain that he had conducted the following
  shot at and that he got away, but that they were looking       independent investigation in order to verify the information
  for him. Holt stated that the residence was located off        he had obtained on Hammond’s alleged growing operation:
  KY-1955 beside Morning View Church and that the
  Location had a gate across the driveway which lead [sic]           In addition to confirming the complaints, on 8-5-99 I
  to a barn/garage style building. Holt stated that the              subpoenaed the power records of Glenn Hammonds [sic].
  operation was inside a side room of the building. On 4-            These records indicate a trailer on the property which is
  20-99 Det. Tim Engle conducted a drive-by recon of the             using 400 to 700 kilowatts of power. However there is
  location and verified the complaint. Since this time we            no trailer on the property. The other power record #02-
No. 01-5358                       United States v. Hammond              5    6     United States v. Hammond                            No. 01-5358

  1235-48-001 shows power usage that is consistent with                        A state judge, on the basis of the information contained in
  a dwelling. However during the observation of the                          Detective Engle’s affidavit, issued the requested search
  location no windows were observed in the building in                       warrant. On August 6, 1999, Detective Engle, along with
  question. This along with a security gate, satellite dish,                 approximately thirteen other officers, executed the warrant.
  and no trespassing signs tells me that this subject is                     During the search, a vehicle drove across Hammond’s
  security conscious which is consistent with other                          property, in order to get to an adjoining plot. Several officers
  marijuana growers. On 8-5-99 at approx. 0230 hrs. I                        followed the vehicle, which was driven by Bill Ponder, the
  conducted an Aerial Thermal Image of the location in                       son of the adjoining property owner. Bill Ponder was
  question that is consistent with other indoor grow                         approached by law enforcement officers on the scene and
  operations investigated by this officer.                                   consented to their searching his vehicle, person, and trailer.
                                                                             The officers discovered marijuana in the trailer.
Again, there were several inaccuracies in Detective Engle’s
statement. First, although Engle stated that there was no                       While following Ponder across Hammond’s property, the
trailer, there is a trailer located at the back of the property.             officers passed a roadway that led to a building, which had
Second, as stipulated to by the government, the power usage                  not been previously identified by the officers conducting the
records were not for the buildings they were attributed to in                search, and which was not included in the warrant under
the affidavit. The record that was claimed to be for a trailer,              which they were operating. Ponder told the officers that the
was actually the power usage record of the building within                   building was the residence of Glen and Judy Hammond. Late
which the marijuana was subsequently found. The other                        in the evening of that same day, Detective Moore sought and
power usage record, which was “consistent with a dwelling,”                  obtained a search warrant for this building.
was for Hammond’s residence and not for the building
identified by Engle as having no windows. Third, the                            During the search of the property, the officers discovered
building that Engle claimed had no windows does in fact have                 marijuana growing inside a barn-like building, along with
windows, although it is unclear from the photograph in the                   sixteen firearms and ammunition, a disassembled sawed-off
record whether the only windows it has are dormer windows.                   shotgun, and four electric blasting caps. Outside the building,
The government has agreed that the power usage records were                  the officers found more marijuana and another firearm,
incorrectly referred to in the affidavit. Fourth, the “security              alleged to be a machine gun. On the Ponder property, the
gate” did not have security features of any kind, as the district            officers discovered marijuana in a trailer that was titled to
court found. Finally, the government has stipulated that the                 Hammond.
thermal imaging can not be considered, in accordance with
the recent Supreme Court decision of Kyllo v. United States,
533 U.S. 27, 34-35 (2001), which held that thermal imaging
used to measure the heat emanating from a home constitutes                   the use of thermal imaging on a home and the use of such imaging on
                                                                             commercial property, and noted that since comm ercial prop erty enjoys a
a search, requiring a warrant.1                                              lesser expe ctation of privacy, it is unlikely that the Sup reme Court’s
                                                                             holding in Kyllo would apply. Id. at 646. Nevertheless, the Elkins panel
                                                                             declined to reach that issue since it was unnecessary to the resolution of
    1
                                                                             the case, and here we too decline to reach that issue since the government
     W e note that the government’s stipulation may have been                has stipulated that Kyllo applies, and there is no discussion on record as
improvident because of our relatively recent decisio n in United States v.   to whether the barn structure at issue would properly be considered a
Elkins, 300 F.3d 638 (6th Cir. 2002). In Elkins, we distinguished between    residential or commercial structure.
No. 01-5358                  United States v. Hammond         7    8    United States v. Hammond                     No. 01-5358

   Hammond was not present during the execution of either          unreliable, the reconnaissance drive that Engle said he did in
search warrant, and on August 10, 1999, a warrant was issued       order to verify Holt’s complaint was actually done prior to
for his arrest. On August 17, 1999, the Peach County               Holt’s complaint and could not have “verified” anything other
Sheriff’s Department in Georgia stopped a tractor-trailer in       than the fact that a driveway existed with a gate across it off
which Hammond was riding as a passenger, while his cousin          of the main road, that Engle lied about the specific
drove. Hammond was arrested for possession of a concealed          information supposedly supplied by Holt with regard to the
.22-caliber single-shot pistol, possession of a small amount of    location of the growing operation on Hammond’s property,
methamphetamine, and possession of a firearm during the            that the power usage records were not for the locations
commission of a crime. When the Georgia Sheriff’s                  specified in the affidavit and must therefore be excluded from
Department learned of the outstanding arrest warrant issued        consideration, and that the thermal imaging information was
in this case, it transported Hammond to Kentucky. Other            illegally obtained and must also be excluded from
firearms were located inside the truck, but none of them,          consideration. The district court when ruling on this question
including the .22-caliber pistol in Hammond’s pocket, are          held that although there were several misstatements in the
listed in the indictment for this case.                            affidavit, there was still enough to establish probable cause
                                                                   “[g]iven the Holt ‘tip’ (even if the reference to ‘an outdoor
                              II                                   grow operation’ in a ‘side room’ is redacted), the
                                                                   confirmation of the location of the Hammond premises, the
                     Motion to Suppress                            FLIR thermal image results, and the assertion that the
                                                                   ‘Rockcastle Sherriff’s Office has received numerous
   The district court’s conclusions of law regarding a motion      complaints on this residence and subject [Glen Hammond]’
to suppress are reviewed de novo, while the district court’s       regarding marijuana.”
findings of fact are reviewed only for clear error. United
States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000). In                The critical question to be determined is whether the
addition, the evidence is to be reviewed “in the light most        affidavit, apart from the tainted information that is either
likely to support the district court’s decision.” Ibid. (quoting   inaccurate or illegally obtained, provides the requisite
United States v. Navarro-Comacho, 186 F.3d 701, 705 (6th           probable cause to sustain a search warrant. See United States
Cir. 1999)).                                                       v. Charles, 138 F.3d 257, 263 (6th Cir. 1998). In determining
                                                                   if probable cause exists, the court must examine the totality of
  Hammond contends that Detective Engle’s affidavit in             the circumstances. See United States v. Van Shutters, 163
support of the warrant issued to search Hammond’s property         F.3d 331, 336 (6th Cir. 1998). If there was not probable cause
contained false information that was essential to the probable     for searching Hammond’s property, then the only way that the
cause determination made in issuing the search warrant.            evidence at issue in this case would survive suppression is
Hammond argues that as a result the evidence seized from his       through the Leon good-faith rule.
property in both the initial search done, based on the allegedly
faulty affidavit, and in the subsequent search done later that                            Probable Cause
day on the basis of information garnered during the initial
search, should be suppressed. In particular, Hammond                 Since the district court’s ruling, Kyllo was decided by the
maintains that the information obtained from the informant,        Supreme Court and on that basis the government stipulated
Holt, and restated in Detective Engle’s affidavit was stale and    that the thermal imaging results could not be considered.
No. 01-5358                       United States v. Hammond              9    10    United States v. Hammond                     No. 01-5358

This leaves us with three pieces of information in Engle’s                   encounter in the night or regenerating conspiracy?), the
affidavit that are not tainted. First, there is the fact that Holt           criminal (nomadic or entrenched?), the thing to be seized
gave Keeney a “tip” that there was “dope” on Glen                            (perishable and easily transferable or of enduring utility to its
Hammond’s property, although this tip was received at some                   holder?), the place to be searched (mere criminal forum of
point prior to March 1999 – at least five months before                      convenience or secure operational base?).” United States v.
Detective Engle requested the search warrant — and does not                  Greene, 250 F.3d 471, 480-81 (6th Cir. 2001) (quoting United
specify the location of the marijuana on the property. Second,               States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998)). In this
there is the “verification” of Hammond’s address by Engle.                   case, the crime of drug trafficking is ongoing, the defendant’s
And third, there were several anonymous phone calls vaguely                  location is established, the drugs were likely to be there for an
complaining about “the Hammonds on Red Hill” raising                         indefinite period of time, and the place to be searched
marijuana.2 Everything else contained in the affidavit was                   constituted a secure operational base. Holt’s tip was not,
either the result of a mistake, a fabrication, or cannot legally             therefore, stale.
be considered.
                                                                               Nevertheless, Holt’s information was vague, not obviously
   The government argues that Holt’s “tip” was enough on its                 reliable, and entirely unsupported by any independent
own to produce probable cause and relies on United States v.                 investigation on the part of the police. The tip, on its own, is
Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc), in which                 insufficient for establishing probable cause.
this court held that under a totality of the circumstances
approach, a confidential informant’s information need not                       In Allen, this court stated that “where a known person,
always be independently corroborated. Alternatively, the                     named to the magistrate, to whose reliability an officer attests
government contends that the good faith exception to the                     with some detail, states that he has seen a particular crime and
warrant requirement validates the search. See United States                  particular evidence, in the recent past, a neutral and detached
v. Leon, 468 U.S. 897, 926 (1984) (holding that the                          magistrate may believe that evidence of a crime will be
exclusionary rule should not be used to suppress evidence                    found.” Allen, 211 F.3d at 975. However, here, as noted by
when the officers who obtained the evidence acted in                         the federal magistrate judge in his report and
reasonable reliance on a search warrant issued by a neutral                  recommendation, officer Engle did not provide any detail as
and detached magistrate that is later found to be invalid). We               to the reliability of the named informant. The affidavit at
find neither of these arguments convincing.                                  issue in Allen noted that the officer knew the informant for
                                                                             five years. Here, Detective Engle did not state how long
                              Holt’s Tip                                     Keeney had known Holt, or if he, himself, knew Holt.
                                                                             Detective Engle did not even state that Holt was a “reliable
  Holt’s tip was not stale, as Hammond contends. A                           source” or that he had given the police reliable information in
determination of whether an informant’s tip is stale rests on                the past. Cf. United States v. Pinson, 321 F.3d 558, 563 (6th
several factors including “the character of the crime (chance                Cir. 2003) (holding that an affidavit met “the Allen test”
                                                                             where the officer stated in the affidavit that he knew the
                                                                             informant was “reliable from past information received from
    2                                                                        said [informant],” the informant was familiar with the drugs
      The calls only referenced “the Hamm onds” and did no t specifica lly   at issue from “past experience and exposure,” and where the
identify Glen Hamm ond, the property in question, or the absence of other
perso ns nam ed H amm ond in the vicinity.
                                                                             affidavit contained the officer’s personal observation of the
No. 01-5358                  United States v. Hammond         11    12   United States v. Hammond                     No. 01-5358

informant’s drug deal, his pat down of the informant before         warrant, because it “was based upon information provided by
and after the purchase of the narcotics, and the fact that the      a known reliable informant, and was verified by Detective
drugs purchased tested positive for cocaine base). Holt’s tip       Gannon to the extent possible.” Id. at 742. Specifically, the
does not pass the Allen test and, therefore, cannot constitute      affidavit indicated that the confidential informant had
probable cause on its own.                                          “provided credible information in the past which has led to
                                                                    the arrest and/or conviction of ‘more than seventy individuals
   Despite the minimal probative value of Holt’s information,       for violations of state and/or federal drug laws, as well as the
the tip can take on an increased level of significance for          confiscation of more than $100,000.00 and 5 kilograms of
probable cause purposes, if corroborated by the police              controlled substances.’” Ibid. In addition, the confidential
through subsequent investigation. See United States v. Leake,       informant had described the defendant’s illegal activity and
998 F.2d 1359, 1365 (6th Cir. 1993). See also United States         residence in significant detail, noting, for example, that the
v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). For example,          defendant had received a large amount of cocaine within the
in United States v. Smith, 783 F.2d 648 (6th Cir. 1986), we         past day from a man by the name of Antonio Cook and that
considered a warrant obtained on the basis of a tip provided        the defendant used his car in the distribution of that cocaine,
by a confidential informant, whose information was                  which he described as a “1980's model gray Chevrolet
corroborated through the independent investigation of the           Cavalier, Ohio Temporary License Number K591513.” Ibid.
police. In the supporting affidavit, the officer stated as          The confidential informant was also able to describe the
follows:                                                            defendant’s house as being
  On the 20th day of August, 1984, at approximately 5:00              the downstairs unit in a two family, two and one half
  p.m., the affiant received information from a reliable              story, white wood sided dwelling with green trim, the
  informant that Eric Helton was producing marijuana at               numbers ‘1439,’ the address for the upstairs unit, clearly
  his residence. Acting on the information received, affiant          visible on the south side of the entrance door to the
  conducted the following independent investigation: On               upstairs unit, the structure being located on the east side
  August 21, 1984 at 11:30 A.M. Detective William                     of East 116th Street, facing west.
  Stweart [sic] observed a marijuana plant growing beside
  the residence of Eric Helton.                                     Ibid. Finally, the police corroborated the tip provided by the
                                                                    informant. First, the detective on the case verified that the
Smith, 783 F.2d at 649. The panel stated that the tip standing      vehicle described by the informant was in fact registered to
alone would not have been sufficient to establish probable          the defendant at the address provided by the informant.
cause, Smith, 783 F.2d at 650, yet upheld the warrant because       Second, the detective verified that the defendant had a prior
the officer’s observations verified the tip and, in addition, the   history of criminal offenses. Third, the detective stated that
informant’s reliability had been established.                       “Antonio Cook [was] a person known to members of the Task
                                                                    Force as a supplier of cocaine on the east side of Cleveland.”
  In a more recent case, a warrant was challenged as                Id. at 741.
insufficient to establish probable cause because the
detective’s independent investigation was inadequate to                Given these examples, it is apparent that the information
corroborate the informant’s claims. United States v. King,          left for us to rely on for probable cause in this case is
227 F.3d 732, 741 (6th Cir. 2000). The panel upheld the             insufficient. Neither the anonymous phone calls nor
No. 01-5358                  United States v. Hammond         13    14       United States v. Hammond                         No. 01-5358

Detective Engle’s drive by Hammond’s residence can be               presented in his affidavit. Detective Engle by his own
considered substantial enough to corroborate Holt’s tip for         admission was informed by Deputy Keeney of Holt’s tip
purposes of probable cause. First, Holt was not established as      within a day of filling out the application for the warrant in
a reliable informant in any respect. Second, the information        this case, yet Engle implied in his affidavit that he drove by
provided by Holt and the anonymous callers was lacking in           Hammond’s property in order to verify Holt’s tip in April.
detail with respect to the location of Hammond’s residence,         Detective Engle stated that Holt informed Deputy Keeney that
the location of the marijuana within Hammond’s residence,           the marijuana was located in a “side room” of the building,
and specifics regarding the illegal operation allegedly             yet Deputy Keeney testified at the Franks hearing that he did
conducted by Hammond. The information does not, in                  not recall such a statement. Detective Engle stated in his
quantity or quality, approach the detail offered, for example,      affidavit that he “verified [Holt’s] complaint” when he drove
in Smith or King. Third, Detective Engle, when driving by           by Hammond’s property, yet he did not see any marijuana
the property, noticed nothing out of the ordinary at the            growing or for that matter any indications of criminal activity.
Hammond residence.          Detective Engle only served to          All he was able to “verify” was that a Glen Hammond lived
corroborate the fact that a Hammond lived in Rockcastle             in Rockcastle County off of KY 1955. Detective Engle stated
County on KY 1955 and that there was a gate across his              with certainty that there was no trailer on the Hammond
property. Such information would not be difficult for anyone        property, yet there was a trailer. The power records were not
to obtain and does not suggest criminal activity. This, along       for the buildings they were attributed to in the affidavit. The
with anonymous phone calls providing absolutely no specific         building that Engle claimed to have no windows, did in fact
information, is not enough for probable cause.                      have windows. This is not the case in which an officer made
                                                                    a small error in the affidavit, when applying for a warrant.
                    Good Faith Exception                            The number of falsehoods and half-truths told are substantial
                                                                    and reflect, at the very least, a reckless disregard for the truth.
  It is well established that the Fourth Amendment                  For these reasons, we should reverse the district court’s ruling
exclusionary rule does not apply in cases where law                 and grant Hammond’s motion to suppress the evidence seized
enforcement officers reasonably rely in good faith upon a           in both searches.3
search warrant, even if that warrant is ultimately found to be
invalid. Leon, 468 U.S. at 922. Nevertheless, this good-faith                                          III
exception to the exclusionary rule established in Leon does
not apply when 1) the supporting affidavit contained knowing          Hammond also contends that there was insufficient
or reckless falsity, 2) the issuing magistrate failed to act in a   evidence to support his conviction under 18 U.S.C.
neutral and detached fashion and served merely as a rubber          § 924(c)(1). However, given our decision to grant
stamp for the police; 3) the supporting affidavit did not           Hammond’s motion to suppress, it is unnecessary for us to
provide the magistrate with a substantial basis for determining     evaluate this second issue on appeal. For the reasons given
the existence of probable cause; or 4) the officer’s reliance on    above, we REVERSE the district court’s denial of
the warrant was neither in good faith nor objectively
reasonable.
                                                                         3
  There is no question that Officer Engle acted with reckless            The government concedes that if the first warrant is invalidated, the
disregard for the truth in view of the remarkable inaccuracies      second warrant would also be invalidated, as it would be “fruit of the
                                                                    poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963).
No. 01-5358             United States v. Hammond   15

Hammond’s suppression motion and REMAND this case for
proceedings consistent with this opinion.
