                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0182n.06

                                        Case No. 14-1366

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Mar 09, 2015
                                                                             DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE
v.                                                  )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE EASTERN
DEON ARCHIE POWELL,                                 )       DISTRICT OF MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/               )


Before: KEITH, MERRITT, and BOGGS, Circuit Judges

       DAMON J. KEITH, Circuit Judge.

       The central issue in this case is whether the district court erred in denying the defendant’s

motion to suppress guns and ammunition seized pursuant to an allegedly stale search warrant.

Because the good-faith exception to the exclusionary rule applies to the government’s search and

seizure, we AFFIRM.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       On May 6, 2011, a magistrate judge in the Eastern District of Michigan issued a search

warrant. Special Agent James Koss of the United States Drug Enforcement Agency submitted an
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affidavit to support the search warrant application. See R. at 62.1 The affidavit details a drug

trafficking enterprise led by Anthony Edwards and Clarence Williamson. The warrant sought

documentary and physical (but non-narcotic) evidence of drug and firearm offenses, including

guns and ammunition. R. at 62, 73.

       On May 17, 2011, pursuant to the issued search warrant, law enforcement agents

searched a residence located at 7324 Grandmont Avenue in Detroit, Michigan. The agents found

firearms and ammunition. See R. at 409. According to the affidavit, Powell resided at the

Grandmont address.

       The United States charged Powell with one count of being a felon in possession of

firearms and one count of being a felon in possession of ammunition in violation of 18 U.S.C. §

922(g)(1). Powell filed a motion to suppress. See R. at 51. In his motion to suppress, Powell

argued that the government lacked probable cause to search the Grandmont residence. The

district court denied Powell’s motion to suppress. See R. at 545. The district court declined to

decide whether probable cause supported the search warrant, characterizing this question as

“very close.” R. at 561. However, the district court held that the evidence seized pursuant to the

search warrant was admissible under the good-faith exception to the exclusionary rule. See R. at

561–62.

       Powell went to trial. The United States entered the guns and ammunition into evidence.

On September 25, 2013, the jury convicted Powell on both counts. R. at 112. The district court

entered final judgment in March of 2014. R. at 154. Powell appealed the district court’s

judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291.




1
 “R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 62” refers to
PageID 62.
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Case No. 14-1366, United States v. Powell


II.    ANALYSIS

       Powell argues that the district court erred in denying his motion to suppress because

probable cause did not support the search warrant. Powell further argues that the good-faith

exception to the exclusionary rule does not apply because the affidavit supporting the search

warrant was so lacking in probable cause that no reasonable officer could have considered it

valid. We disagree with Powell’s second argument and hold that the good-faith exception to the

exclusionary rule applies in this case. Based on this disposition, we decline to consider whether

probable cause supported the search warrant. United States v. McCraven, 401 F.3d 693, 698 (6th

Cir. 2005).

       Probable cause must support a search warrant. U.S. Const. amend. IV. Probable cause

supports a search warrant when the underlying affidavit creates “a fair probability that

contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S.

213, 238 (1983). Where the affidavit underlying the search warrant fails to create such a fair

probability, courts ordinarily must suppress evidence obtained pursuant to the invalid search

warrant. See Davis v. United States, 131 S. Ct. 2419, 2426 (2011). This rule is called the

“exclusionary rule.”

       The Supreme Court has created a “good-faith exception” to the exclusionary rule. Under

the good-faith exception, “[w]hen police act under a warrant that is invalid for lack of probable

cause, the exclusionary rule does not apply if the police acted in objectively reasonable reliance

on the subsequently invalidated search warrant. Herring v. United States, 555 U.S. 135, 142

(2009) (citation omitted) (internal quotation marks omitted). We review de novo the district

court’s legal conclusion that the good-faith exception applies. United States v. Helton, 314 F.3d

812, 824 (6th Cir. 2003) (citation omitted).


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       The Supreme Court has identified at least four situations in which the government’s

reliance on a subsequently invalidated search warrant is objectively unreasonable: (1) where “the

magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant

knew was false or would have known was false except for his reckless disregard of the truth”;

(2) “where the issuing magistrate wholly abandoned his [neutral and detached] judicial role”;

(3) where the warrant is “based on an affidavit so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable”; and (4) where the warrant is so

“facially deficient . . . that the executing officers cannot reasonably presume it to be valid.”

United States v. Leon, 468 U.S. 897, 923 (1984) (citations omitted) (internal quotation marks

omitted).

       The good-faith standard is “less demanding” than the “threshold required to prove the

existence of probable cause.” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (en

banc) (citation omitted). Thus, the good-faith exception applies where “the affidavit contain[s] a

minimally sufficient nexus between the illegal activity and the place to be searched to support an

officer’s good-faith belief in the warrant’s validity.” Id. at 596 (citations omitted); see also

United States v. Laughton, 409 F.3d 744, 750 (6th Cir. 2005) (suggesting that the good-faith

exception applies when the affidavit underlying the warrant provides “some connection,

regardless of how remote it may have been, between the criminal activity at issue and the place

to be searched”).

       The good-faith exception applies in this case. The affidavit created a minimally sufficient

nexus between the drug and firearm activity and the Grandmont residence for the executing

agents to reasonably believe that the residence contained evidence of drug and firearm offenses.

First, the agents had reason to believe that Powell resided at the Grandmont property because he



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listed it as his address, maintained its electric service in his name, and frequently parked two of

his cars there. R. at 70. Also, the affidavit states that a controlled buy transpired between

Edwards and a confidential informant at that address on September 30, 2010. During this

transaction, Edwards briefly entered the Grandmont residence and, upon exiting, supplied the

confidential informant with two ounces of heroin. R. at 68; see also United States v. Ellison,

632 F.3d 347, 349 (6th Cir. 2011) (“Commission of a drug transaction outside of a house and one

participant’s walking back into the house . . . plainly demonstrate[s] a sufficient nexus with the

house.”). Further, the affidavit states that Powell discussed both selling heroin to Edwards on

September 21, 2010 and buying marijuana from Edwards on September 25, 2010. R. at 66–67.

Thus, because the facts indicated that Powell lived at the Grandmont property, the agents could

have reasonably believed that he was using his “home[] to store drugs and otherwise further [his]

drug trafficking.” United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008). Additionally, the

affidavit states that, during a conversation on December 6, 2010, Williamson told Edwards that

he wanted to retrieve a bag of guns that Edwards was storing at “that house,” which Special

Agent Koss understood as a potential reference to the Grandmont property. See R. at 68–70; see

also United States v. Rodriguez-Suazo, 346 F.3d 637, 644 (6th Cir. 2003) (citation omitted)

(internal quotation marks omitted) (“The issuing judge or magistrate may give considerable

weight to the conclusion of experienced law enforcement officers regarding where evidence of a

crime is likely to be found and is entitled to draw reasonable inferences about where evidence is

likely to be kept.”). Also, we have recognized that “firearms are often used by narcotics

traffickers for protection, and people generally store their firearms at home.” United States v.

Chapman, 112 F. App’x 469, 472 (6th Cir. 2004). Accordingly, it was objectively reasonable for




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Case No. 14-1366, United States v. Powell


the agents to believe that the Grandmont residence contained evidence of drug and firearm

offenses.

       Powell argues that the affidavit failed to create a minimally sufficient nexus with the

Grandmont residence because it had gone stale by the time the agents executed the search. To

support this argument, Powell notes that the agents executed the search warrant approximately

eight months after some of the key drug activity detailed in the affidavit.

       We consider four factors when analyzing whether an affidavit is stale: (1) whether the

crime is transitory or continuing; (2) whether the criminal is nomadic or stationary; (3) whether

the thing to be seized is perishable or durable; and (4) whether the place to be searched is a

forum of convenience or a secure operational base. See United States v. Abboud, 438 F.3d 554,

572–73 (6th Cir. 2006).

       Here, the balance of the staleness factors weighs in the United States’ favor. The first

factor may favor Powell somewhat. Although the affidavit purports to describe a continuing drug

ring, the vast bulk of the activity relating to the Grandmont residence took place in the fall of

2010. See R. at 65–67. Factor two, however, favors the United States. The affidavit’s averments

support a reasonable belief that Powell was a stable resident at the Grandmont property. As for

factor three, the warrant targeted documentary and physical evidence of drug activity, including

firearms and ammunition. Although firearms are transferrable, we have nevertheless stated that

they “are durable goods and might well be expected to remain in a criminal’s possession for a

long period of time.” United States v. Pritchett, 40 F. App’x 901, 906 (6th Cir. 2002); see also

United States v. Vanderweele, 545 F. App’x 465, 469–70 (6th Cir. 2013) (holding that a seven-

month delay in executing a search warrant for a silencer did not render it stale, partly because “a

silencer is like a gun, easily transferrable, but more commonly kept by its owner for a long



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time”). The final factor also favors the United States. The agents searched Powell’s home, which

is more like a secure operational base than a mere forum of convenience. See United States v.

Greene, 250 F.3d 471, 481 (6th Cir. 2001) (citation omitted) (internal quotation marks omitted)

(“The place to be searched was the defendant’s home, suggesting that there was some

permanence to the defendant’s base of operation.”). Accordingly, despite the eight-month time

lag, the affidavit was not sufficiently stale to vitiate the minimally sufficient nexus between the

Grandmont residence and the drug and firearm activity the affidavit outlines.

III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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