       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2     United States v.               Nos. 01-5368/5370/5446
    ELECTRONIC CITATION: 2004 FED App. 0072P (6th Cir.)          Carpenter, et al.
                File Name: 04a0072p.06
                                                                               _________________
UNITED STATES COURT OF APPEALS                                                       COUNSEL
              FOR THE SIXTH CIRCUIT                        ARGUED: Nikki C. Pierce, FEDERAL DEFENDER
                _________________                          SERVICES OF EASTERN TENNESSEE, Greeneville,
                                                           Tennessee, for Appellants. Michael E. Winck, ASSISTANT
UNITED STATES OF AMERICA , X                               UNITED STATES ATTORNEY, Knoxville, Tennessee, for
             Plaintiff-Appellee/ -                         Appellee. ON BRIEF: Nikki C. Pierce, FEDERAL
               Cross-Appellant, -                          DEFENDER SERVICES OF EASTERN TENNESSEE,
                                   -   Nos. 01-5368/       Greeneville, Tennessee, for Appellants. Michael E. Winck,
                                   -   5370/5446           ASSISTANT UNITED STATES ATTORNEY, Knoxville,
            v.                      >                      Tennessee, for Appellee. Lonnie D. Carpenter, Rogersville,
                                   ,
                                   -                       Tennessee, pro se.
LONNIE D. CARPENTER                -                                           _________________
(01-5368) and SHEILA J.            -
CARPENTER (01-5370),               -                                               OPINION
        Defendants-Appellants/ -                                               _________________
               Cross-Appellees. -
                                   -                         SILER, J., delivered the opinion of the court, in which
                                  N                        BOGGS, C. J., BATCHELDER, GIBBONS, ROGERS,
       Appeal from the United States District Court        SUTTON, and COOK, JJ., joined. GILMAN, J. (pp. 12-17),
   for the Eastern District of Tennessee at Greeneville.   delivered a separate concurring opinion. MOORE, J. (pp. 18-
     No. 99-00045—Thomas G. Hull, District Judge.          23), delivered a separate dissenting opinion, in which
                                                           MARTIN, DAUGHTREY, COLE, and CLAY, JJ., joined,
         Argued and Submitted: June 11, 2003               with MARTIN, J. (p. 24), also delivering a separate
                                                           dissenting opinion.
          Decided and Filed: March 9, 2004
                                                              SILER, Circuit Judge. Defendants Lonnie D. and Sheila J.
  Before: BOGGS, Chief Judge; MARTIN, SILER,               Carpenter were convicted of manufacturing marijuana. One
  BATCHELDER, DAUGHTREY, MOORE, COLE,                      of the issues that they raised on appeal was a claim that the
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and                 district court erred in failing to suppress the evidence of their
             COOK, Circuit Judges.                         illegal activity. The government cross-appealed the district
                                                           court’s ruling that limited the amount of the Carpenters’ land
                                                           subject to forfeiture. A divided panel of this court affirmed
                                                           in part, vacated in part, and remanded the case for further


                            1
Nos. 01-5368/5370/5446                 United States v.     3    4      United States v.              Nos. 01-5368/5370/5446
                                       Carpenter, et al.                Carpenter, et al.

proceedings. United States v. Carpenter, 317 F.3d 618 (6th       issued the requested search warrant. The affidavit, which the
Cir. 2003).                                                      warrant incorporated, described the location of the Carpenter
                                                                 residence and then set forth the following reasons (in exactly
   Rehearing en banc was subsequently granted in order to        the syntax shown) why Lawson believed that evidence of
consider a question regarding the application of United States   criminal conduct would be found in the residence:
v. Leon, 468 U.S. 897, 922 (1984), that is, whether a search
conducted pursuant to an invalid warrant may be saved under          On June 23, 1999 at approx 12:30 pm, Helicopter Pilot
the “good-faith exception” on the basis that the officers had        Lt Bob Crumley was conducting an aerial search of
other information that was not presented to the issuing              Hawkins Co when he was flying over the above
magistrate, but that would have established probable cause.          described property he saw numerous Marijuana Plants
We need not reach that question because we conclude that the         growing. Near the residence.
police officers’ reliance on the deficient warrant was               Upon information I received from Lt Crumley, there is a
reasonable because the information that was presented to the         road connecting the above described residence to the
issuing judge was sufficient to support a good-faith belief in       Marijuana Plants. Having personal knowledge that Lt.
the warrant’s validity. We therefore REINSTATE the                   Crumley is certified in the identification of Marijuana I
judgment of the panel in this case, and adopt the panel              feel there is probable cause to search the said residence
opinion except for its discussion of the Leon good-faith             and property and seize any illegal contraband found.
exception, and REMAND the case to the district court for
further proceedings.                                               Armed with this warrant, police officers searched the
                                                                 Carpenters’ residence. They seized marijuana, marijuana
                   I. BACKGROUND                                 seeds, and other items associated with marijuana
                                                                 manufacturing.
A. Factual background
                                                                 B. Procedural background
  In June 1999, Police Lieutenant Robert Crumley was
conducting helicopter surveillance over Hawkins County,             In July 1999, the Carpenters were indicted for
Tennessee. He spotted patches of marijuana growing in fields     manufacturing marijuana and with employing a minor to
approximately 900 feet away from a residence belonging to        assist them, in violation of 21 U.S.C. §§ 841 and 861,
the Carpenters. In addition, he observed beaten paths leading    respectively. The indictment also sought the forfeiture of the
from the back door of the residence to the marijuana patches     Carpenters’ real property, a 100-acre farm, on the basis that
and saw two men, who turned out to be Lonnie Carpenter and       it had been “used, or intended to be used, in any manner or
his son, walking from the patches toward the residence.          part, to commit, or to facilitate the commission of” marijuana
Crumley relayed this information to a team of police officers    manufacturing. 21 U.S.C. § 853(a)(2).
on the ground.
                                                                   The district court subsequently denied the Carpenters’
  Captain Ronnie Lawson, a member of the ground team,            motions to suppress the evidence seized during the search of
sought a warrant to search the residence. A state judge,         their residence. The Carpenters were eventually acquitted on
satisfied that Lawson’s affidavit established probable cause,    the charge that they employed a minor to manufacture
Nos. 01-5368/5370/5446                 United States v.        5   6    United States v.                Nos. 01-5368/5370/5446
                                       Carpenter, et al.                Carpenter, et al.

marijuana, but were found guilty of manufacturing marijuana.          To justify a search, the circumstances must indicate why
The jury also concluded that the Carpenters’ property had          evidence of illegal activity will be found “in a particular
been used to commit the crime, thereby triggering a forfeiture     place.” There must, in other words, be a “nexus between the
of the property.                                                   place to be searched and the evidence sought.” United States
                                                                   v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998).
                      II. ANALYSIS                                 Lawson’s affidavit did not provide a substantial basis for the
                                                                   issuing judge’s conclusion that probable cause existed to
A. The motions to suppress                                         search the Carpenters’ residence, because it failed to set forth
                                                                   sufficient facts that incriminating evidence would be found
  1.   Standard of review                                          there, rather than in some other place.
  In reviewing the denial of a motion to suppress, we defer to       The facts that marijuana was growing “near” the residence
the district court’s factual findings unless they are clearly      and that a road ran nearby fall short of establishing the
erroneous. Legal conclusions, however, are reviewed de             required nexus between the Carpenters’ residence and
novo. United States v. Bartholomew, 310 F.3d 912, 919 (6th         evidence of marijuana manufacturing. If Lawson’s affidavit
Cir. 2002), cert. denied, 537 U.S. 1177 (2003).                    had stated that beaten paths led from the marijuana patches to
                                                                   the door of the residence, and that two men had been spotted
  2.   Whether the affidavit provided a substantial basis for      walking from the marijuana patches to the residence, the
       the determination of probable cause                         affidavit would likely have been sufficient to establish
   The Fourth Amendment provides that “no Warrants shall           probable cause. See United States v. Robins, 978 F.2d 881,
issue, but upon probable cause, supported by Oath or               892 (5th Cir. 1992) (holding that where a police detective has
affirmation.” U.S. Const. amend. IV. In determining whether        ascertained that a particular person, Robins, was a marijuana
an affidavit establishes probable cause,                           dealer, “[t]here was undoubtedly an adequate nexus, between
                                                                   Robins’ residence and Detective Soule’s allegations to the
  [t]he task of the issuing magistrate is simply to make a         Magistrate Judge about Robins’ marijuana operation, to
  practical, common-sense decision whether, given all the          support the search warrant for the marijuana and related
  circumstances set forth in the affidavit before him, . . .       records [that] Detective Soule’s experience and common
  there is a fair probability that contraband or evidence of       sense told him would likely be at Robins’ residence”); United
  a crime will be found in a particular place. And the duty        States v. Malin, 908 F.2d 163, 166 (7th Cir. 1990) (holding
  of a reviewing court is simply to ensure that the                that a police officer’s “observation of marijuana growing in
  magistrate had a substantial basis for concluding that           Malin’s [fenced] yard reasonably yielded the conclusion that
  probable cause existed.                                          marijuana or other evidence of marijuana possession would
                                                                   be found in Malin’s house”).
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal
quotation marks and alterations omitted).                            These additional facts, however, were not included in the
                                                                   affidavit. The facts in the affidavit that did connect the
                                                                   marijuana patches and the residence were too vague,
                                                                   generalized, and insubstantial to establish probable cause.
Nos. 01-5368/5370/5446                  United States v.        7   8      United States v.                Nos. 01-5368/5370/5446
                                        Carpenter, et al.                  Carpenter, et al.

We therefore conclude that the state judge lacked a substantial         would be devoid of substance. In fact, Leon states that
basis to determine that probable cause existed to search the            . . . a finding of objective good faith [is inappropriate]
Carpenters’ residence. The government, indeed, concedes                 when an officer’s affidavit is “so lacking in indicia of
this point. Because the search of the Carpenters’ residence             probable cause as to render official belief in its existence
violated the Fourth Amendment, we are left with the question            entirely unreasonable.” This is a less demanding
of whether the evidence seized should be suppressed.                    showing than the “substantial basis” threshold required
                                                                        to prove the existence of probable cause in the first place.
  3.   The good-faith exception to the exclusionary rule
                                                                    United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)
  “When evidence is obtained in violation of the Fourth             (citation omitted).
Amendment, the judicially developed exclusionary rule
usually precludes its use in a criminal proceeding against the        The affidavit in the case before us failed to provide a
victim of the illegal search and seizure.” Illinois v. Krull, 480   substantial basis for probable cause because it did not provide
U.S. 340, 347 (1987). Courts should not, however, suppress          the required nexus between the residence and the illegal
“evidence obtained in objectively reasonable reliance on a          activity. However, the affidavit was not completely devoid of
subsequently invalidated search warrant.” United States v.          any nexus between the residence and the marijuana that the
Leon, 468 U.S. 897, 922 (1984). But this good-faith                 police observed. Rather, it noted both that the marijuana was
exception to the exclusionary rule does not apply in                growing “near” the residence and that “there is a road
circumstances where “the officer will have no reasonable            connecting” the residence and the marijuana plants.
grounds for believing that the warrant was properly issued.”
Id. at 923. Thus, an officer would not “manifest objective            We previously found Leon applicable in cases where we
good faith in relying on a warrant based on an affidavit so         determined that the affidavit contained a minimally sufficient
lacking in indicia of probable cause as to render official belief   nexus between the illegal activity and the place to be searched
in its existence entirely unreasonable.” Id. (quotation             to support an officer’s good-faith belief in the warrant’s
omitted).                                                           validity, even if the information provided was not enough to
                                                                    establish probable cause. See United States v. Van Shutters,
  a.   Whether the officers had a reasonable basis to               163 F.3d 331, 336 (6th Cir. 1998) (upholding a search where
       believe that the information actually submitted              the affidavit underlying the warrant described the residence,
       supported the issuance of the search warrant                 the items sought, and the defendant’s counterfeiting scheme,
                                                                    but connected the place to the illegal activity only by stating
  Pursuant to Leon, we must now decide whether the officers         that the residence “was available” to the defendant); United
in the instant case had a reasonable basis to believe that the      States v. Shultz, 14 F.3d 1093, 1098 (6th Cir. 1994)
information that was submitted supported the issuance of the        (upholding a search of safe deposit boxes at a bank where the
search warrant. In considering this question, we agree with         affidavit underlying the warrant connected the boxes and the
the following analysis by the Fourth Circuit:                       defendant’s trafficking in illegal drugs only by stating that the
                                                                    officer’s training and experience led him to believe that
  If a lack of a substantial basis also prevented application       evidence would be located there).
  of the Leon objective good faith exception, the exception
Nos. 01-5368/5370/5446                  United States v.      9    10   United States v.                Nos. 01-5368/5370/5446
                                        Carpenter, et al.               Carpenter, et al.

   A useful contrast is provided by United States v. Hove, 848     Franks.” United States v. Atkin, 107 F.3d 1213, 1216-17 (6th
F.2d 137 (9th Cir. 1988). In Hove, the police officer had          Cir. 1997) (discussing Franks’s holding that a defendant is
obtained a warrant to search a particular residence after          entitled to an evidentiary hearing on the veracity of the
submitting to the issuing magistrate an affidavit that failed to   affidavit if (1) he or she can make a preliminary showing that
provide any nexus between the residence and illegal activity.      portions of the affidavit are deliberately or recklessly false,
Id. at 139-40 (“[T]he final warrant application, while it set      and (2) after setting aside the false information, the remaining
forth facts suggesting that Kimberly Hove had sent                 parts of the affidavit would not support a finding of probable
threatening letters, never linked Kimberly Hove or any             cause). But to be constitutionally problematic, the material
suspected criminal activity in any way with the 2727 DeAnza        must have been deliberately or recklessly omitted and must
residence.”). The Ninth Circuit held that no reasonable            have undermined the showing of probable cause. See id. (“If
officer could have believed that the warrant was valid, given      the defendant does succeed in making a preliminary showing
the failure of the affidavit to articulate any nexus between the   that the government affiant engaged in ‘deliberate falsehood’
illegal activity and the place to be searched.                     or ‘reckless disregard for the truth’ in omitting information
                                                                   from the affidavit, the court must then consider the affidavit
   In the present case, however, the affidavit was not totally     including the omitted portions and determine whether
lacking in facts connecting the residence to the marijuana         probable cause still exists.”). The Carpenters have made no
patches. These facts, as we explained above, were too vague        showing that Lawson omitted facts from his affidavit
to provide a substantial basis for the determination of            deliberately or recklessly. Moreover, the omitted facts would
probable cause. But these facts (unlike Hove) were not so          have bolstered the affidavit’s showing of probable cause, not
vague as to be conclusory or meaningless. See United States        undermined it.
v. Williams, 3 F.3d 69, 74 (3d Cir. 1993) (“This is not a case
in which the affidavit contained mere conclusory assertions          The fact that a police officer had such additional knowledge
or a single piece of evidence which the law of the                 certainly raises the inference that the officer should have
stationhouse shop would recognize as clearly insufficient.”).      recognized that a stronger showing of probable cause could
We therefore conclude that reasonable officers could have          have been made to the issuing magistrate. But such
believed that the affidavit as submitted, even without the         recognition says nothing about the reasonableness of the
additional relevant information known to the officers, was         belief that the information that was presented was sufficient.
sufficient to support the issuance of the warrant.
                                                                     To the extent that the Carpenters are continuing to argue
   At oral argument, the Carpenters contended that Lawson’s        that the factual assertions that were in the affidavit were both
omission from his affidavit of the additional information          false and recklessly included (a traditional Franks challenge),
known to the police (concerning the beaten paths and the two       the district court found after a hearing that the affidavit was
men walking from the marijuana patches to the residence)           reasonably accurate and that no evidence supported the
militated against the conclusion that they executed the            proposition that any inaccuracy was deliberately or recklessly
warrant in good-faith reliance on its reasonableness. We           included. These findings were not clearly erroneous.
disagree. Extrapolating from Franks v. Delaware, 438 U.S.
154 (1978), this court has recognized that “material omissions
[from an affidavit] are not immune from inquiry under
Nos. 01-5368/5370/5446                  United States v.     11    12   United States v.                Nos. 01-5368/5370/5446
                                        Carpenter, et al.               Carpenter, et al.

  b.   Whether the fact that the officers had other                                   ___________________
       information that was not presented to the issuing
       magistrate, but that would have established probable                             CONCURRENCE
       cause, is relevant to the good-faith analysis                                  ___________________
  Since we have concluded that the police officers’ reliance          RONALD LEE GILMAN, Circuit Judge, concurring. I
on the deficient warrant was reasonable based on the               concur in the conclusion reached by the majority opinion and
information that actually was submitted to the issuing judge,      in most of its reasoning. But I respectfully disagree with its
we leave for another day the question of whether the search        decision to defer to another day the issue of whether a court
could have been saved under the “good-faith exception” on          should consider the additional information known to the
the basis that the officers had other information that was not     officers but not communicated to the magistrate in deciding
presented to the issuing magistrate, but that would have           if the Leon good-faith exception has been satisfied. The
established probable cause. See, e.g., United States v.            government persuaded the district court that the consideration
Marion, 238 F.3d 965, 969 (8th Cir. 2001).                         of such additional information was appropriate. In addition,
                                                                   the issue has been fully briefed and argued on appeal and is
B. Other issues                                                    discussed in the dissenting opinion. Deciding the issue is
                                                                   therefore appropriate in order to provide guidance to the
  Rule 35 of the Rules of the Sixth Circuit provides that          district courts within our circuit and to future panels of this
“[t]he effect of the granting of a rehearing en banc shall be to   court. See Webster v. Reproductive Health Servs., 492 U.S.
vacate the previous opinion and judgment of this Court.” All       490, 532-35 (1989) (Scalia, J., concurring in part and
of the issues raised by the Carpenters on appeal are thus          concurring in the judgment) (discussing numerous cases
before us. In our opinion, however, the reasoning of the prior     where the Supreme Court has departed from the general
panel was correct on all issues other than its analysis of the     principle of deciding cases on the narrowest possible
motions to suppress. We therefore reinstate and reaffirm the       constitutional grounds).
judgment in United States v. Carpenter, 317 F.3d 618 (6th
Cir. 2003), and adopt its opinion except for its discussion of       As part of its argument, the government contends that the
the Leon good-faith exception. See Donahey v. Bogle, 129           good-faith exception to the exclusionary rule should apply in
F.3d 838, 844 (6th Cir. 1997) (en banc) (reinstating the prior     this case because the police officers knew additional facts that
panel opinion on all issues not otherwise discussed by the en      were not included in Captain Lawson’s affidavit, but that,
banc court), vacated on other grounds, 524 U.S. 924 (1998).        when added to the information contained in the affidavit,
                                                                   would have established probable cause. Specifically, the
                    III. CONCLUSION                                police (1) knew that beaten paths led from the back door of
                                                                   the residence to the marijuana patches, and (2) had seen two
  For all of the reasons set forth above, we REINSTATE the         men walking from the patches to the residence. I am of the
judgment of the panel in this case, albeit with different          opinion that any consideration of this additional information
reasoning, and REMAND the case to the district court for           would be contrary to controlling Supreme Court precedent.
further proceedings.
Nos. 01-5368/5370/5446                   United States v.      13    14   United States v.               Nos. 01-5368/5370/5446
                                         Carpenter, et al.                Carpenter, et al.

   The Fourth Amendment prohibits police officers, absent            cause. . . . [W]hat the officer knew but did not tell the
certain exceptions not applicable here, from conducting              magistrate is irrelevant.”).
searches of a residence without a properly issued warrant.
Agnello v. United States, 269 U.S. 20, 33 (1925) (“Belief,              The government argues that Leon itself described situations
however well founded, that an article sought is concealed in         in which a reviewing court would need to look to facts
a dwelling house furnishes no justification for a search of that     beyond the affidavit in order to ascertain whether the officers
place without a warrant.”). An officer’s correct belief in the       could have reasonably relied on a deficient warrant. I do not
existence of probable cause does not obviate the warrant             quarrel with this argument. But nothing in Leon suggests the
requirement. Id. (“And such searches are held unlawful               illogical position that information supporting probable cause
notwithstanding facts unquestionably showing probable                that is known to the officers but not to the issuing magistrate
cause.”).                                                            could make the officers’ reliance on the deficient warrant
                                                                     reasonable. Instead, Leon describes several specific situations
   According to the Supreme Court in Leon, evidence                  where the relevant extra-affidavit facts are ones other than
obtained through a search pursuant to a deficient warrant must       pertinent, truthful information known to the officers but not
be suppressed, unless the police officer acted “in objectively       communicated to the magistrate. 468 U.S. at 923.
reasonable reliance on a subsequently invalidated search             Suppression is appropriate, for example, “in cases where the
warrant.” 468 U.S. at 922. Information tending to show the           issuing magistrate wholly abandoned his judicial role,”
existence of probable cause that was not disclosed to the            because the Fourth Amendment requires a magistrate to be
issuing magistrate cannot logically have any bearing on the          neutral and detached and to make his or her own
reasonableness of the presenting officer’s belief that the           determination of probable cause. Id. “[N]o reasonably well
warrant was properly issued, as opposed to the officer’s             trained officer should rely on the warrant” where the officer
reasonable belief that probable cause existed for the search.        knows that it was not validly issued. Id. Similarly, the Leon
The straightforward reason for this conclusion is that no            Court instructed:
magistrate can base his or her determination of the existence
of probable cause upon information never received.                     [O]ur good-faith inquiry is confined to the objectively
                                                                       ascertainable question whether a reasonably well trained
  Leon and Agnello make clear that the relevant question is            officer would have known that the search was illegal
whether the officer reasonably believed that the warrant was           despite the magistrate’s authorization. In making this
properly issued, not whether probable cause existed in fact.           determination, all of the circumstances—including
See United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)           whether the warrant application had previously been
(“The Leon test for good faith reliance is clearly an objective        rejected by a different magistrate—may be considered.
one and it is based solely on facts presented to the magistrate.
An obviously deficient affidavit cannot be cured by an               Id. at 922 n.23.
officer’s later testimony on his subjective intentions or
knowledge.”) (citation omitted); United States v. Bynum, 293           This passage from Leon points out the need to consider the
F.3d 192, 212 (4th Cir. 2002) (Michael, J., dissenting) (“Leon       circumstances where extra-affidavit information might be
requires that the officer be able to entertain a reasonable belief   relevant to an officer’s good-faith reliance on the warrant’s
that the magistrate had a substantial basis for finding probable     validity. For example, if an officer takes an affidavit to nine
Nos. 01-5368/5370/5446                   United States v.      15    16   United States v.                Nos. 01-5368/5370/5446
                                         Carpenter, et al.                Carpenter, et al.

magistrates, all of whom decide that it does not establish           known to [the police officer] at the time he applied for the
probable cause, and the officer subsequently relies on a later-      search warrant, we find that [the police officer] reasonably
invalidated warrant issued by a tenth magistrate presented           believed that probable cause existed to execute a search
with the same affidavit, the fact that nine magistrates had          warrant.” Id. at 1320. I find this portion of the opinion in
decided against issuing a warrant raises an inference that the       Martin perplexing, because the relevant question under Leon
officer’s reliance on the warrant was not objectively                is whether the officer reasonably believed that the warrant
reasonable. A contrasting situation is found in the case before      was valid, not whether probable cause existed. Perhaps this
us, where the officer knew of facts that would have                  part of Martin can be chalked up to dicta. But even if this
established probable cause, but omitted those facts from his         characterization is incorrect, this court is of course not bound
affidavit and then relied on the warrant issued by a judge who       by the holdings of our sister circuits. Nixon v. Kent County,
did not know those additional facts. Knowing additional facts        76 F.3d 1381, 1388 (6th Cir. 1996) (en banc).
that would establish probable cause, but that were not
presented to the issuing magistrate, does not establish that the        The government also recites the comment in Martin that
officer reasonably believed that the warrant was properly            “[t]he exclusionary rule is meant to guard against police
issued. In the first situation, extra-affidavit facts are relevant   officers who purposely leave critical facts out of search
to the pertinent question of whether the officer reasonably          warrant affidavits because these facts would not support a
believed that the warrant was valid. But the extra-affidavit         finding of probable cause.” 297 F.3d at 1320. I agree with
facts in the second situation have no bearing on the question.       this statement, but find it underinclusive. The Supreme Court
                                                                     stated in Leon that “the exclusionary rule . . . operates as a
  The government also cites the Eleventh Circuit’s decision          judicially created remedy designed to safeguard Fourth
in United States v. Martin, 297 F.3d 1308 (11th Cir.), cert.         Amendment rights generally through its deterrent effect.” 468
denied, 123 S. Ct. 667 (2002), in support of its proposed rule.      U.S. at 906 (internal quotation marks omitted) (emphasis
In Martin, the Eleventh Circuit concluded that although the          added). Although an officer’s intentional omission of
affidavit did not establish probable cause, it “contained            unsupportive facts from a search warrant application may
sufficient indicia of probable cause to enable a reasonable          well violate the Fourth Amendment, it is by no means the
officer to execute the warrant thinking it valid.” Id. at 1315.      only way to violate the Amendment. See, e.g., id. at 922-24
Because no other exception to Leon applied (e.g., the                (listing multiple examples of Fourth Amendment violations).
magistrate had not abandoned his judicial role), this                The Martin court’s statement of the exclusionary rule’s
conclusion should have ended the Eleventh Circuit’s inquiry.         purpose is therefore underinclusive and does not justify the
                                                                     government’s position.
  The Martin court then proceeded, however, to redundantly
“make an inquiry as to whether [the police officer] reasonably         One other conceivable source of authority for the
relied upon the search warrant.” Id. at 1318. In answering           consideration of the undisclosed information, which this court
this question, the Eleventh Circuit decided that it was              relied upon in the unpublished decision of United States v.
permitted to consider additional facts supporting probable           Leaster, No. 00-6501, 2002 WL 1147343, at *8 (6th Cir.
cause that the police officer had known but had not disclosed        May 28, 2002), is Anderson v. Creighton, 483 U.S. 635, 641
to the issuing magistrate. The court concluded: “Under the           (1987). Although the Supreme Court did indeed state in
totality of the circumstances, taking into account the facts         Anderson that “whether it was objectively legally reasonable
Nos. 01-5368/5370/5446                  United States v.     17    18   United States v.               Nos. 01-5368/5370/5446
                                        Carpenter, et al.               Carpenter, et al.

to conclude that a given search was supported by probable                                   ____________
cause or exigent circumstances will often require examination
of the information possessed by the searching officials,” id. at                              DISSENT
641, this statement was made in the context of deciding                                     ____________
whether qualified immunity protected an officer conducting
a warrantless search that was undertaken because of exigent          KAREN NELSON MOORE, Circuit Judge, dissenting. I
circumstances. Given that no warrant is required for a search      respectfully dissent because the officers’ reliance upon the
undertaken with both probable cause and exigent                    warrant was not reasonable given the exiguous information
circumstances, I believe that Anderson provides no support         presented to the issuing judge, and thus the Leon good-faith
for the rule proposed by the government. Leaster failed to         exception does not apply to this case. See United States v.
make this key distinction and is thus unpersuasive.                Leon, 468 U.S. 897 (1984).
  The Eighth Circuit also relied on Anderson to justify its          Consequently, I believe that we must reach the issue, buried
adoption of the rule proposed by the government. See United        in the sand by the majority, of whether an officer can
States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987). It did so     reasonably rely on a warrant when the officer possesses
without acknowledging the significance of the “exigent             information that could establish probable cause but does not
circumstances” exception to the warrant requirement, an            communicate that information to the magistrate.               I
exception not present in the case before us. Subsequent            wholeheartedly agree with Judge Gilman’s opinion on the
Eighth Circuit cases have simply followed Martin without           proper role (or lack thereof) of withheld information in the
any further analysis. See, e.g., United States v. Johnson, 78      calculus of Leon, and I do not elaborate on its reasoning at
F.3d 1258, 1263 (8th Cir. 1996); United States v. Simpkins,        great length. Judge Gilman is certainly correct that Captain
914 F.2d 1054, 1057 (8th Cir. 1990). I therefore find the          Lawson’s affidavit was insufficient to permit the issuing
Eighth Circuit cases equally unpersuasive.                         magistrate to determine that probable cause existed. Judge
                                                                   Gilman also properly concludes that information known to the
   No compelling authority, in sum, stands for the proposition     officers, but not relayed to the issuing magistrate, cannot
that a search conducted pursuant to an invalid warrant can be      preserve the fruits of an invalid warrant under the Leon good-
saved under Leon’s good-faith exception on the basis that the      faith exception. The original panel should be reversed on this
officers had other information that was not presented to the       point, and I endorse Judge Gilman’s rejection of the decisions
issuing magistrate, but that would have established probable       of the Eighth and Eleventh Circuits. See United States v.
cause. This proposition is contrary to Leon and, in my             Johnson, 78 F.3d 1258 (8th Cir. 1996); United States v.
opinion, the court should so declare in the case before us.        Martin, 297 F.3d 1308 (11th Cir.), cert. denied, 123 S. Ct.
                                                                   667 (2002). Knowledge withheld, either by accident or
                                                                   through purposeful omission or misrepresentation, cannot
                                                                   resuscitate otherwise suppressible evidence, because an
                                                                   officer who neglects to inform fully the issuing magistrate
                                                                   and who then executes the defective warrant does not
                                                                   manifest an “objectively reasonable” good-faith belief that the
                                                                   warrant was valid. Leon, 468 U.S. at 922. Far from
Nos. 01-5368/5370/5446                 United States v.     19    20    United States v.               Nos. 01-5368/5370/5446
                                       Carpenter, et al.                Carpenter, et al.

demonstrating reasonable belief, the omitted information          reasonable officer could have believed that the warrant was
serves chiefly to highlight an officer’s understanding of the     valid.
warrant’s deficiency because that officer is in a unique
position to understand that the issuing magistrate lacked all        The threshold issue is how to determine whether an officer
the necessary data. Permitting information not presented to       has an objectively reasonable good-faith belief in the
the issuing magistrate to serve as the lynchpin for invoking      defective warrant’s validity. The Leon Court wrote that “our
Leon perverts the meaning of the warrant requirement because      good-faith inquiry is confined to the objectively ascertainable
it allows law enforcement officials to bypass the judiciary;      question whether a reasonably well trained officer would have
evidence produced by inadequate search warrants, which are        known that the search was illegal despite the magistrate’s
starved of information and seemingly doomed by insufficient       authorization.” 468 U.S. at 922 n.23. “The objective
probable cause, should not receive a reprieve solely because      standard . . . requires officers to have a reasonable knowledge
of information obscured from the issuing magistrate’s             of what the law prohibits.” Id. at 919 n.20. Some minimal
consideration.                                                    connection between the property or person to be searched and
                                                                  the alleged wrongdoing is a necessary, but not sufficient,
   I part ways with Judge Gilman, as well as the majority,        precondition for the satisfaction of this objective standard.
because of their conclusion that the officers here had an         The mere existence of some nexus will not preserve evidence
objectively reasonable good-faith belief in the warrant’s         from the exclusionary rule when a reasonable officer, well
legitimacy based upon the scant information actually given to     trained in the practice of searches and presumed to understand
the issuing magistrate. I would rule that these officers were     the basic principles of the law in this area, submits an
“relying on a warrant based on an affidavit so lacking in         affidavit describing a connection that so plainly fails to
indicia of probable cause as to render official belief in its     establish probable cause that the reasonable officer should not
existence entirely unreasonable.” Id. at 923 (quotation           have applied for the warrant initially.
omitted). The majority holds that even though the affidavit
did not provide enough of a nexus between the Carpenters’            The presence of marijuana “near” the Carpenter residence
residence and the illegal activity to sustain probable cause,     and the sighting of a road “connecting” the marijuana and the
“the affidavit contained a minimally sufficient nexus between     residence implied some relationship between the two, but this
the illegal activity and the place to be searched to support an   link was so minimal and so plainly failed to show probable
officer’s good-faith belief in the warrant’s validity . . . .”    cause to search that the officers could not have believed that
Maj. Op. at 8. In the majority’s view, the affidavit attesting    the warrant authorizing the search was valid. Several courts
to (1) the presence of marijuana “[n]ear” the residence and       have held that Leon does not apply when an affidavit offers an
(2) “a road connecting” the residence to the area where the       extremely limited factual basis for probable cause or an
plants were growing did not suffice to give the officers          extremely minimal nexus, because such an affidavit is “so
probable cause to search, but supported the officers’             lacking in indicia of probable cause as to render official belief
objectively reasonable belief that the warrant was valid. Id.     in its existence entirely unreasonable.” Id. at 923 (quotation
Because I believe that the two facts presented in the affidavit   omitted). For example, the Eighth Circuit ruled that no
at best draw a tenuous and shadowy connection between the         reasonable officer could have believed that probable cause
Carpenter residence and the marijuana plants that is not          existed when the only evidence connecting the defendant’s
sufficient to meet the Leon standards, I cannot agree that a      home to the cultivation of drugs was the presence of
Nos. 01-5368/5370/5446                 United States v.     21    22   United States v.                Nos. 01-5368/5370/5446
                                       Carpenter, et al.               Carpenter, et al.

marijuana on a farm close to the defendant, which was owned       detailed facts and eschews vague descriptions of the location
by his relatives. United States v. Herron, 215 F.3d 812, 815      or person to be searched, it is much more likely that a law
(8th Cir. 2000). The court held that Leon did not apply,          enforcement official could form an objectively reasonable
because there was neither evidence of marijuana growing at        belief that a warrant was valid. See United States v. Watkins,
the defendant’s residence nor proof of any participation by the   179 F.3d 489, 493, 499 (6th Cir. 1999) (applying Leon when
defendant in the cultivation of the marijuana discovered at the   a six-page affidavit detailed several instances of the
other farm. Id. at 814. The “officers involved should have        defendant’s drug-related activity both at and away from a
been fully aware of the deficiencies of their affidavits”         different residence that the police did not search, even though
because the affidavits, which make only a few passing             the affidavit did not mention a second house that was the
references to the defendant, “simply do not say very much         object of the search); United States v. Williams, 3 F.3d 69, 70-
about [the defendant] or his residence.” Id. & n.2; see also      71, 74 (3d Cir. 1993) (applying Leon because affidavit of
United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)          housekeeper detailed specifics of illegal drug activity in motel
(rejecting argument that Leon applied when affidavit did not      room, such as “coded” knocks, overheard conversations, and
link the searched residence to the defendant or explain why       observations of paraphernalia made while cleaning); cf.
incriminating evidence may have been found there).                United States v. Helton, 314 F.3d 812, 816, 824 (6th Cir.
                                                                  2003) (rejecting application of Leon exception even though a
   The cases upon which the majority relies are                   twenty-seven-page affidavit supported the warrant, because
distinguishable from the facts here, because in each, the         the affidavit relied too heavily on an anonymous tipster’s
underlying affidavit contained considerably more detail or        recollections).
precision than Lawson’s affidavit, and therefore made it
possible for officers executing the warrant to form a                Additionally, the proximity of illegal marijuana cultivation
reasonable belief that probable cause existed. In United          to the property that is searched is a significant factor in
States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998), we          assessing the objective reasonableness of an officer’s belief
upheld a search under Leon because the affidavit stated that      that probable cause existed. In United States v. Malin, 908
the affiant had personal knowledge of the defendant’s illegal     F.2d 163 (7th Cir. 1990), the Seventh Circuit found that
activities, and because the affidavit described the location of   probable cause existed to search a residence, but questioned
the residence to be searched “with such particularity that a      in the alternative whether Leon would apply. The court
common sense inference is that the affiant visited the            answered affirmatively because the officer’s affidavit
premises himself and presumably . . . observed [the               described his observation of marijuana growing directly next
defendant] in the premises.” Id. at 337. In contrast to the       to a house in a fenced-in yard, even though the officer did not
majority’s reading of Van Shutters, I do not believe that we      observe any individual near the marijuana. Id. at 165-67. See
applied the Leon exception based only upon an extremely           also United States v. Huggins, 299 F.3d 1039, 1041, 1045
minimal connection to the illegal activity, namely the            (9th Cir. 2002) (concluding that an objectively reasonable
defendant’s access to the residence; we explained in Van          officer could rely on an affidavit when it presented
Shutters that the affidavit presented a detailed connection       information that the defendant’s home consumed electricity
such that “only a police officer with extraordinary legal         in a manner consistent with marijuana cultivation).
training would have detected any deficiencies in [the]
document.” Id. Generally, when an affidavit provides
Nos. 01-5368/5370/5446                  United States v.      23    24   United States v.                Nos. 01-5368/5370/5446
                                        Carpenter, et al.                Carpenter, et al.

   The facts here are much closer to Herron than they are to                              ______________
Van Shutters or Malin. Lawson’s affidavit provided only the
barest modicum of information to the issuing magistrate. Its                                 DISSENT
brevity and vacuousness sharply distinguishes it from the                                 ______________
detailed affidavit presented in Van Shutters. It did not
connect the Carpenter residence to the marijuana observed;            BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I join
that the marijuana was seen “near” to the residence does not        Judge Moore’s very persuasive dissent and add only the
necessarily imply a connection between the two, particularly        following. Given the sophisticated technologies that the
when Lawson knew that the plants were in fact approximately         police now have at their disposal, as well as the wide
900 feet from the Carpenter residence. Unlike Malin, when           discretion that they currently enjoy, it is especially important
the marijuana grew in a fenced-in yard directly adjacent to the     that we are careful not to expand their powers beyond what is
house, the marijuana “near” the Carpenters’ trailer was far         authorized by the Constitution. In this case, the Constitution
enough away that no officer could draw a firm connection            has been set aside in the name of expediency. Regrettably,
between the two, or between the marijuana and any other             we have descended further down that slippery slope of post-
residence in the neighborhood for that matter. If the               hoc rationalization, where everything that the police do
marijuana had been growing next to the trailer or in the patch      becomes acceptable when viewed in retrospect.
of corn behind the trailer, the officers’ belief in the warrant’s
validity might have been more reasonable. Furthermore, the            For the reasons set forth by Judge Moore and for these
road “connecting” the residence to the marijuana plants was         reasons, I respectfully dissent.
in reality a dirt path leading from the Carpenters’ trailer to a
separate tractor path that may have served as the connection
between the city road and a homestead behind the Carpenters’
trailer that had burned down several years before. The good-
faith exception cannot apply here because Lawson’s affidavit
was based on two extremely inconclusive connections
between the marijuana and the house, and therefore Lawson
could not have reasonably believed that probable cause
existed.
  Because there was no probable cause to justify the search
and because I do not believe that a law enforcement officer
could form the objectively reasonable belief that the warrant
was valid when so little linked the Carpenter residence to the
marijuana plants growing “near” the residence, I would
reverse the district court and exclude the evidence gathered
from the illegal search.
