                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 16a0501n.06

                                        Case No. 15-3633
                                                                                     FILED
                            UNITED STATES COURT OF APPEALS                     Aug 25, 2016
                                                                           DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
          Plaintiff-Appellee,                      )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
DWIGHT BULLARD,                                    )       OHIO
                                                   )
          Defendant-Appellant.                     )
                                                   )
____________________________________               )


Before: KEITH, CLAY, and WHITE, Circuit Judges.

          DAMON J. KEITH, Circuit Judge. Dwight Bullard appeals the denial of his motion to

suppress evidence seized pursuant to a search warrant. Bullard argues that the warrant to search

an apartment lacked probable cause. After holding a suppression hearing, the district court

denied Bullard’s motion. For the following reasons, we AFFIRM.

     I.      FACTUAL AND PROCEDURAL BACKGROUND

          On October 24, 2014, a search warrant was issued in the Court of Common Pleas of Lake

County authorizing the search of an apartment (the “Bishop Park Apartment”) in the City of

Willoughby Hills, Ohio.

          Lakewood Police Department (“LPD”) Detective Amelia Leanza provided information in

an affidavit supporting issuance of the warrant.
Case No. 15-3633, United States v. Bullard


       A. Allegations in affidavit in support of issuance of warrant

       The relevant allegations in the affidavit are as follows:

       In September 2014, LPD received information from a confidential source (“CS”) about a

man with the street name of “Cream White,” who was selling heroin in Cuyahoga County. The

CS identified the man as Bullard. CS advised that he “requests the purchase of heroin” from

Bullard through Bullard’s cell phone. Further investigation revealed that Bullard was under

supervised probation from the Cuyahoga County Probation Department for a 2013 drug arrest,

and that he had been convicted for violations of state drug laws. Bullard listed his residence as

13901 Bartlett Avenue, in Cleveland, to his probation officer.

       a. September 25, 2014: First controlled buy.

       On September 25, 2014, LPD organized a controlled buy. Under Detective Leanza’s

direction, the CS sent a text message to Bullard asking to buy heroin. The CS received a text

message from Bullard, agreeing to the purchase. The CS’ person and car were searched and

were found to be free of drugs, monies and contraband. The CS was outfitted with audio and

video surveillance. The CS was kept under surveillance and followed to a pre-determined

location within Cuyahoga County where the CS met with Bullard and bought a substance from

him that later field-tested positive for heroin. Immediately after the purchase, the CS then went

to a pre-determined location where the heroin was recovered.

       Further investigation revealed that two vehicles were registered to Bullard: a 2000 red

GMC pick-up truck with an Ohio license plate, and a 2006 black Ford Fusion with an Ohio

license plate. Surveillance was conducted at the 13901 Bartlett Avenue address where the red

GMC truck was observed parked in the back of the driveway. The residence, however, appeared

to be vacant because there were phone books hanging on the front door during the investigation,



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which, Detective Leanza stated, corroborated the fact that Bullard “was not, nor was anyone else,

actually residing” there. Bullard was observed arriving at this location in a black Ford Fusion

with another license plate number.

       b. October 7, 2014: Second controlled buy.

       On October 7, 2014, the CS advised the LPD that Bullard had been purchasing homes

within Cuyahoga County, “rehabbing” them, and renting them out. One such home was located

at 6627 Lansing Avenue in Cleveland. Another controlled buy was organized. The CS sent

Bullard text messages and placed calls under Detective Leanza’s supervision. The CS requested

another purchase of heroin, and Bullard agreed to the sale at the house that he was currently

rehabilitating. The CS’ person and vehicle were fully searched and were found to be free of any

drugs, monies, and contraband. The CS was outfitted with audio and video surveillance. The CS

was kept under constant and uninterrupted surveillance and followed directly to 6627 Lansing

Avenue. The CS entered the residence and completed the sale. Immediately after the purchase,

the CS then went to a pre-determined location where the purchased substance, which later field-

tested positive for heroin, was recovered. The residence at 6627 Lansing Avenue was observed

to be vacant and in the process of remodeling and not in any condition for occupancy.

       Detective Leanza stated that video surveillance of both 6627 Lansing Avenue and 13901

Bartlett Avenue revealed that Bullard was not living at these addresses. Bullard was also never

seen coming from either address to conduct the controlled buys. A data base search of the

National Vehicle Location Service was conducted on the black Ford Fusion’s license plate.

On September 27, 2014 and on October 1, 2014, the black Ford Fusion was shown to be parked

at 27700 Bishop Park Drive. On October 9, 2014, surveillance was conducted at Bishop Park

Drive, and the black 2006 Ford Fusion was parked on the south side of the apartment building.



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Case No. 15-3633, United States v. Bullard


Bullard was observed exiting the rear door of the apartment building and entering the Ford

Fusion. On October 16, 2014, in the early morning hours, the black 2006 Ford Fusion was again

observed to be parked on the south side of the apartment building. Detective Leanza spoke with

the management at the apartment complex. Management indicated that Bullard’s name was not

listed on a lease, but advised that he could be staying there with another resident. Detective

Leanza was provided access to the complex’s video surveillance room. Presumably that same

day, at 10:19 a.m., Bullard was observed leaving the Bishop Park Apartment. Later, it was

learned that the Bishop Park Apartment was “rented to Alisa Maiorano for her daughter, Angel

LaQuatra.”

       c. October 17, 2014: Third controlled buy.

       On October 17, 2014, the CS arrived at the LPD. A controlled buy was organized while

at the same time surveillance was conducted at 27700 Bishop Park Drive. The black Ford

Fusion was found parked on the south side of the building. The CS placed a series of monitored

phone calls and text messages to Bullard’s cell phone number. A woman, believed to be Angel

LaQuatra, was observed leaving the Bishop Park Apartment with a small child. After she left

with the child, Bullard was observed exiting the Bishop Park Apartment, locking the door behind

him using a key, and, while waiting for the elevator, he appeared to make a phone call from his

cell phone. At the same time, the CS received a phone call from Bullard advising the CS as to

where they should meet to consummate the sale.        Bullard was followed by officers from

27700 Bishop Park Drive directly to 6627 Lansing Avenue. The CS was kept under constant

supervision and followed directly to 6627 Lansing Avenue, where he pulled into the driveway

there. The CS entered the residence at 6627 Lansing Avenue just after Bullard had arrived. The

CS left and was followed directly to a pre-determined location where the purchased substance,



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Case No. 15-3633, United States v. Bullard


which later field-tested positive for heroin, was recovered. The CS’ person and vehicle were

again fully searched and found to be free of any additional drugs, monies, and contraband. The

CS further advised that Bullard had a “baggie in his pocket with numerous pre-packed rocks of

heroin.” Bullard had sold the CS heroin from this bag of pre-packed heroin. The CS further

advised that another male, known to Detective Leanza, was inside the residence during the

transaction. The male was already there by the time Bullard arrived and used heroin in the CS’

presence.

       d. October 22, 2014: Fourth controlled buy.

       On October 22, 2014, the CS arrived at the LPD again. Another controlled buy was

organized, while at the same time surveillance was conducted at 27700 Bishop Park Drive. The

black Ford Fusion was found parked on the south side of the building. Under the direction and

control of the LPD, the CS placed a series of controlled and monitored text messages to

Bullard’s cell phone.   Bullard remained inside the Bishop Park Apartment throughout the

exchange of the controlled and monitored text messages. Angel LaQuatra was observed exiting

the apartment with the small child. Bullard exited the same apartment and then locked the door

behind him. He descended the stairwell and walked out the rear door of the apartment building.

Bullard entered the black Ford Fusion, and he left the complex.

       As Bullard left the complex, the CS received a text message from Bullard’s cell phone

agreeing to complete the transaction at a named location within Cuyahoga County. The CS’

person and vehicle were fully searched and found to be free of any drugs, monies and

contraband. The CS was outfitted with audio and video surveillance equipment. Bullard was

followed by officers from 27700 Bishop Park Drive directly to 6627 Lansing Avenue. Bullard

was observed completing a “hand to hand” transaction with another man in the driveway.



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Case No. 15-3633, United States v. Bullard


Bullard then entered the black Ford Fusion and departed the driveway, “never having gone into

6627 Lansing [Avenue.]” As he departed the driveway, the CS received a phone call from

Bullard’s cell phone, and Bullard advised that he was on his way and gave directions regarding

the meeting location. Id. Bullard met with the CS. The “hand to hand” transaction was

completed in direct view of a LPD detective. The CS left and was followed directly to a pre-

determined location where the purchased substance, which later field-tested positive for heroin,

was recovered. After the transaction, the CS’ person and vehicles were again fully searched and

found to be free of any additional drugs, monies, and contraband.

       B. The search of the Bishop Park Apartment

       The court issued a search warrant on October 24, 2014 for the Bishop Park Apartment.

The LPD executed the search warrant on October 28, 2014. That same day, but before the

search, Bullard was arrested pursuant to an arrest warrant in the parking lot and was read his

Miranda1 rights. Officers knocked and announced at the apartment door with Bullard. After the

knock went unanswered, entry was gained into the apartment using Bullard’s key. Officers

brought Bullard into the apartment where 52 bags of heroin were removed from his underwear.

When asked if he was keeping any drugs in the apartment, Bullard said everything was in the

safe. The key to the safe was located on Bullard’s key ring, and he voluntarily provided the

digital combination. Upon the law enforcement officials’ seizure of the items, Bullard signed an

inventory of items seized at the apartment.

       C. Bullard’s suppression motion

       After being indicted on November 13, 2014, Bullard filed a motion to suppress the

evidence seized. A suppression hearing was held on January 6, 2015, during which the district

court denied the motion. The district court ruled that probable cause existed to support the
       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

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Case No. 15-3633, United States v. Bullard


issuance of the warrant, and indicated that the good-faith exception under Leon2 applied. Bullard

later pled guilty to possession with intent to distribute heroin and to being a felon in possession

of a firearm and ammunition. Judgment was entered on May 22, 2015. On June 1, 2015,

Bullard appealed the order denying his motion to suppress.

   II.           STANDARD OF REVIEW

          “When reviewing the denial of a motion to suppress, we review the district court’s

findings of fact for clear error and its conclusions of law de novo.” United States v. Beauchamp,

659 F.3d 560, 565–66 (6th Cir. 2011). The question of whether the district court properly

applied the good-faith exception under Leon to the search warrant is a conclusion of law that we

review de novo. United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006). Barring an

exception not applicable here, “a determination of good-faith reliance . . . must be bound by the

four corners of the affidavit.” Id. at 487 (quoting United States v. Laughton, 409 F.3d 744, 751

(6th Cir. 2005)); see also United States v. Frazier, 423 F.3d 526, 535 (6th Cir. 2005) (discussing

limited exception).

   III.          ANALYSIS

   A. Probable cause

          The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” 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.’” United States v. Powell, 603 F. App’x 475, 476 (6th

Cir.), cert. denied, 136 S. Ct. 107 (2015) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).



          2
              United States v. Leon, 468 U.S. 897 (1984).

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Case No. 15-3633, United States v. Bullard


       In reviewing the affidavit, this court’s “duty . . . is simply to ensure that the [issuing

judge] had a substantial basis for concluding that probable cause existed.” United States v.

Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (citation omitted). A “substantial basis

exists when the affidavit shows some underlying circumstances which could lead a man of

reasonable caution to conclude that evidence of a federal crime will probably be found in the

place to be searched.” United States v. Giacalone, 541 F.2d 508, 513 (6th Cir. 1976). If the

warrant is deemed invalid, “[c]ourts ordinarily must suppress evidence obtained pursuant to [it] .

. . this rule is called the ‘exclusionary rule.’” Powell, 603 F. App’x at 476.

   B. Leon’s good-faith exception

       The Supreme Court has created a “good-faith exception”—or, the so-called Leon

exception—to the exclusionary rule. Id.; see also Leon, 468 U.S. at 913. “The exclusionary rule

does ‘not bar the government’s introduction of evidence obtained by police officers acting in

objectively reasonable reliance on a search warrant that is subsequently invalidated.’” United

States v. McPhearson, 469 F.3d 518, 525 (6th Cir. 2006) (quoting Laughton, 409 F.3d at 748).

       “Leon stands for the proposition that the exclusionary rule ‘should be modified so as not

to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant

that is subsequently held to be defective.’” United States v. Van Shutters, 163 F.3d 331, 337 (6th

Cir. 1998) (citation omitted). But the Leon exception is by no means “boundless,” and there are

at least four circumstances in which the exception does not apply:

           (1) if the issuing magistrate was misled by information in an affidavit
               that the affiant knew was false or would have known was false
               except for his reckless disregard for the truth;

           (2) if the issuing magistrate wholly abandoned his judicial role;

           (3) if the affidavit was so lacking in indicia of probable cause as to
               render official belief in its existence entirely unreasonable, or in

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Case No. 15-3633, United States v. Bullard


               other words, where the warrant application was supported by
               [nothing] more than a ‘bare bones’ affidavit;

           (4) if the warrant may be so facially deficient—i.e., failing to
               particularize the place to be searched or the things to be seized—
               the executing officers cannot reasonably presume it to be valid;

See Van Shutters, 163 F.3d at 337 (quoting United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.

1996) (internal quotation marks omitted); see also Leon, 468 U.S. at 914, 915, 923.

As explained below, the focus of our inquiry in this appeal is the third exception—namely

whether the “affidavit was so lacking in indicia of probable cause as to render official belief in

its existence entirely unreasonable.” Id.

       For purposes of the third exception, we first note that official belief in the existence of

probable cause must be objectively reasonable. See Laughton, 409 F.3d at 750 (“[T]he test for

good faith reliance . . . is an objective one [and] does not permit consideration of the executing

officer’s state of mind.”). The showing required to establish that reliance was “objectively

reasonable” is less than the “substantial basis” showing required to establish probable cause.

See Hython, 443 F.3d at 484 (citing Carpenter, 360 F.3d at 595). “[I]t is entirely possible that an

affidavit could be insufficient for probable cause but sufficient for good-faith reliance.”

Id. (quoting United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004)). The required

showing for the third exception primarily relates to “whether an affidavit established a sufficient

nexus between illegal activity and a place to be searched.” Id.

       In determining the applicability of the good-faith exception, we need not decide whether

the warrant supported a finding of probable cause. See Powell, 603 F. App’x at 476; United

States v. Washington, 380 F.3d at 240 (assuming without deciding that probable cause did not




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exist given that good-faith exception clearly applied); see also United States v. Sinclair, 631 F.

App’x 344, 349 (6th Cir. 2015).3

    C. Merits of Bullard’s appeal

         On appeal, Bullard argues that the affidavit did not support a finding of probable cause.

Appellant Br. 12. In response to the government’s argument that the good-faith exception under

Leon applied, see Appellee Br. 25, Bullard argues that the requisite nexus between the place

sought to be searched—i.e., the Bishop Park Apartment—and the criminal activity is lacking,

Reply Br. 3; put another way, Bullard’s argument relates to the third exception under Leon. See

Laughton, 409 F.3d at 749 (determining, for purposes of the third exception, whether there is

“some modicum of evidence, however slight, to connect the criminal activity described in the

affidavit to the place to be searched.”); Washington, 380 F.3d at 243 (determining whether the

affidavit “included enough facts with respect to the nexus between the criminal activity” and the

residence to be searched to “overcome the ‘so lacking’ hurdle.”).

         This case boils down to whether the affidavit contains some “modicum of evidence” to

support a connection between the Bishop Park Apartment and the drug trafficking activity.

See Laughton, 409 F.3d at 749. We conclude that it does. See, e.g., United States v. Warren,

365 F. App’x 635, 637 (6th Cir. 2010). On October 17, 2014, Bullard was observed exiting the

Bishop Park Apartment, locking the door behind him using a key, and, while waiting for the

elevator, he appeared to make a phone call from his cell phone. At the same time, the CS

received a phone call from Bullard, advising the CS as to where they should meet to consummate

the sale. Bullard was then followed directly to the site of the sale. Then, on October 22, 2014,


         3
            While the parties briefed the Leon issue on appeal, we note that they did not brief the issue before the
district court. However, the district court sua sponte addressed the issue at the suppression hearing. Thus, the issue
is not forfeited, and we may resolve this appeal on this ground. See United States v. Clariot, 655 F.3d 550, 556 (6th
Cir. 2011) (“[T]here can be no forfeiture where the district court . . . addressed the merits of the issue.”).

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Case No. 15-3633, United States v. Bullard


Bullard was observed exiting the Bishop Park Apartment, locking the door behind him using a

key, entering the black Ford Fusion, and leaving the complex. As Bullard left the complex, the

CS received a text message from Bullard’s cell phone agreeing to complete the sale of the heroin

at a particular location. Bullard was again followed directly to the site of the sale.

        We have concluded that the application of the good-faith exception under similar

circumstances was proper. See, e.g., Warren, 365 F. App’x at 637 (concluding that the good-

faith exception was “satisfied” because, according to the affidavit, the officer observed “[the

defendant’s] exit from the residence and immediate sale of cocaine to a confidential informant

one block away”); United States v. Bracey, 381 F. App’x 580, 583 (6th Cir. 2010) (concluding

that the good-faith exception applied in part because the officer observed the defendant

“traveling directly” from the residence “to what appeared to be drug transactions”); Washington,

380 F.3d at 243 (concluding that the good-faith exception applied in part because the defendant

was observed “emerg[ing]” from the residence “immediately” before conducting the second of

two drug deals); see also Van Shutters, 163 F.3d at 336–37 (concluding that the good-faith

exception applied even though the affidavit merely noted that the residence was “available” to

the defendant and it failed to “indicate why the affiant believed that [the defendant] himself had

any connection with the . . . [r]esidence”).4

        Accordingly, Leon’s good-faith exception applies to the facts of this case.




        4
             Bullard also argues that “there is no evidence that [Detective Leanza] sought any legal advice by
government attorneys before presenting the affidavit to the state court, as did the affiant in Leon.” Reply Br. 3–4.
So, Bullard contends, application of the Leon exception is improper. Id. Although Bullard is correct in noting that
district attorneys reviewed the affidavit at issue in Leon, see 468 U.S. at 902, Bullard has not cited any case—
binding or otherwise—that holds that review of an affidavit by a government attorney is a prerequisite to a finding
that the good-faith exception applies, and we are aware of none.

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Case No. 15-3633, United States v. Bullard


   IV.      CONCLUSION

         For these reasons, we AFFIRM the district court’s denial of Bullard’s motion to

suppress.




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       HELENE N. WHITE, Circuit Judge, concurring.                   I do not disagree with the

majority’s Leon analysis, but find that analysis unnecessary because the search warrant is

supported by probable cause.

       The affidavit provides detailed facts relating to Bullard’s activities that support an

inference that drugs would be found at the Bishop Park apartment. Through surveillance,

officers established that Bullard was not living at the address listed on his probation paperwork

or at other possible addresses. Detective Leanza averred that, in his experience, it is common for

drug traffickers to conceal their residence to avoid warrantless searches while on active

probation, as Bullard was. Bullard’s vehicle was found at the Bishop Park apartment during

early morning hours on several occasions, suggesting that he resided there. Officers twice

witnessed Bullard leave the Bishop Park apartment, lock the door with a key, and then meet with

the informant and others to sell them heroin. During one of these controlled buys, Bullard sold

the informant heroin without entering another residence.        During the other controlled buy,

Bullard completed the drug deal inside the Lansing Avenue address where other drug users were

present, but Detective Leanza stated that in his experience, it would be uncommon for drug

traffickers to keep drugs at a residence where other drug users were present. Detective Leanza

also detailed his experience as a narcotics officer and Bullard’s status as a previous drug offender

and observed dealer.

       Given Bullard’s ties to the apartment, his status as a known drug dealer, and the

observations of Bullard leaving the apartment to engage in drug transactions, there was sufficient

reliable information presented for the issuing judge to make the common-sense inference that

drugs would be found at the Bishop Park apartment.




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