Reargued En Banc: March 20, 2019
from the United States District Court for the Western
District of Michigan at Grand Rapids. No.
1:15-cr-00172-1-Robert J. Jonker, Chief District Judge.
Lucille A. Jewel, UNIVERSITY OF TENNESSEE, Knoxville,
Tennessee, for Appellant.
Jennifer L. McManus, UNITED STATES ATTORNEY'S OFFICE,
Grand Rapids, Michigan, for Appellee.
Lucille A. Jewel, William A. Beasley, Benjamin A. Johnson,
Benjamin K.P. Merry, UNIVERSITY OF TENNESSEE, Knoxville,
Tennessee, for Appellant.
Jennifer L. McManus, Timothy P. Verhey, UNITED STATES
ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Before: COLE, Chief Judge; MOORE, CLAY, GILMAN, GIBBONS,
ROGERS, SUTTON, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD,
THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY,
ROGERS, CIRCUIT JUDGE
on a five-page-long search-warrant affidavit-which included
evidence from a confidential informant and other sources, a
controlled buy, and direct police-officer surveillance-a
magistrate determined that there was probable cause to search
618 Grandville Avenue, Tyrone Christian's home, for
evidence of drug trafficking. That search uncovered a large
amount of heroin, some cocaine and marijuana, and two loaded
guns. Convicted of various drug and firearm crimes, Christian
argues on appeal that the search was not supported by
probable cause. Christian questions each factual assertion in
the affidavit as insufficient to show probable cause, while
the Government contends that a common-sense examination of
the totality of the circumstances, in light of the deference
that a court owes to warrant-issuing magistrates, is required
by cases like Illinois v. Gates, 462 U.S. 213
(1983), and District of Columbia v. Wesby, 138 S.Ct.
577, 589 (2018). For the reasons that follow, the district
court properly denied Christian's suppression motion.
September 3, 2015, Officer Thomas Bush, a law enforcement
officer for the Grand Rapids Police Department, submitted an
affidavit in support of a search warrant for the residence of
suspected drug trafficker Tyrone Christian at 618 Grandville
Avenue in Grand Rapids, Michigan. The affidavit provided the
following information in support of Officer Bush's belief
that there was probable cause to search Christian's home:
(1) Christian had a history of drug trafficking at 618
Grandville, which included drug-related arrests after two
separate raids in 2009 and 2011, along with four prior felony
convictions for drug-related offenses between 1996 and 2011;
(2) a "credible and reliable" informant had
contacted law enforcement in December 2014 to notify them
that Christian was dealing drugs; (3) law enforcement
successfully conducted a controlled buy from Christian in
January 2015; (4) between May and September 2015, four
different subjects told law enforcement that Christian was
dealing drugs and that they had personally purchased drugs
from him; (5) law enforcement had established surveillance at
618 Grandville and observed a man named Rueben Thomas
"walk away from the area of [the residence] and leave
the area in a vehicle," after which officers stopped
Thomas and discovered heroin in his car; and (6) Thomas
subsequently "admitted that he had recently been at an
address on [Grandville Avenue]," but he "denied
being at [Christian's residence] contrary to observations
of the law enforcement officers."
magistrate judge approved the warrant, and police officers
conducted a drug raid at Christian's home just after
midnight on September 4, 2015. During the raid, officers
seized cocaine, marijuana, over 80 grams of heroin, a cutting
agent, and two loaded guns. The Government charged Christian
with possession of heroin with intent to distribute, being a
felon in possession of a firearm, and possession of a firearm
in furtherance of drug trafficking.
moved to suppress the evidence obtained from the September 3
search warrant. The district court denied the motion,
determining that the affidavit provided sufficient
information to establish probable cause and that in any event
the Leon good-faith exception would apply regardless
of the probable cause determination. A jury convicted
Christian on all counts, and the district court sentenced
Christian to 210 months in prison.
now appeals the district court's denial of his motion to
suppress, arguing that the affidavit did not establish
probable cause and that the Leon good-faith
exception to the exclusionary rule should not apply. He also
challenges the district court's admission of testimony
about a jail call that occurred between Thomas and
Thomas's girlfriend, Tanisha Edwards, before Christian
was arrested. Edwards testified during trial that she told
Thomas that Christian "got the groceries out" of
their house, where the "groceries" referred to a
gun and drugs. The Government introduced the testimony to
help explain why law enforcement later found a gun and drugs
buried in the backyard behind the home of Christian's
search-warrant affidavit at issue here provided an ample
basis for probable cause, and the question is really not even
close. The affidavit first outlined Christian's extensive
history with drugs-four felony drug convictions from 1996,
2002, 2009, and 2011, at least two of which were for drug
trafficking. In 2009 and 2011, search warrants executed at
Christian's home, 618 Grandville, the same place searched
here, uncovered evidence of drug trafficking that each time
resulted in Christian's arrest.
affidavit next detailed the reasons why officers believed
that Christian had gone back into business. In December 2014,
a "credible and reliable informant" advised Officer
Bush, the affiant, that Christian was again dealing drugs.
The informant also provided information about other
traffickers, including "names, nicknames, phone numbers,
residences utilized by the drug traffickers and information
regarding specific drug transactions." Officer Bush
independently corroborated "much of the information
provided" by this informant. In January 2015, under the
direction of Officer Bush, the informant executed a
controlled purchase of drugs from Christian. In addition,
"[w]ithin the last four months" preceding the
search, meaning from May to September of 2015, several other
informants stated that "Tyrone Christian is a large
scale drug dealer" and that "they [had] purchased
large quantities of heroin and crack cocaine from Christian
at [his residence] in the last four to five months."
brings us to September 3, 2015, the day of the search, when,
according to the affidavit, officers established surveillance
"at 618 Grandville Avenue." The officers observed
Rueben Thomas "walk away from the area of 618 Grandville
Avenue and leave the area in a vehicle." After stopping
him for a traffic violation, officers found
"approximately 20 grams of heroin" in the form of
"'chunk[s]' that appeared to have been removed
from a larger portion of heroin." Thomas denied having
been at 618 Grandville but admitted having been at another
address on that street. Crucially, the affidavit recounted
that Thomas's denial was "contrary to observations
of the law enforcement officers."
the "totality of the circumstances," Florida v.
Harris, 568 U.S. 237, 244 (2013), through the "lens
of common sense," as the Supreme Court has instructed,
id. at 248, the conclusion is inescapable: there was
probable cause to believe that a search of 618 Grandville
would uncover evidence of drug trafficking. Most readers of
the affidavit would have been surprised if it did not.
one element of the affidavit was independently sufficient for
probable cause: the surveillance of Rueben Thomas. Christian
argues that there was no "nexus" between Thomas and
618 Grandville because the affidavit states merely that
officers saw Thomas "walk away from the area of 618
Grandville Avenue," rather than entering or leaving that
residence. But that selective, out-of-context reading is
contradicted even by other parts of the affidavit, which
later states that "Rueben Thomas . . . denied being at
[the residence], contrary to observations of the law
enforcement officers." (Emphasis added.) While this
is not a direct statement that Thomas was seen entering or
leaving 618 Grandville, the law does not require such a
direct statement. Indeed, our precedents require us to eschew
such a formal requirement. "Affidavits are not required
to use magic words[.]" United States v. Allen,
211 F.3d 970, 975 (6th Cir. 2000) (en banc). Because our job
is not to reweigh the assertions in an affidavit but to ask
whether the magistrate had a substantial basis for his
conclusion, United States v. Perry, 864 F.3d 412,
415 (6th Cir. 2017), the later phrase in the affidavit cannot
be read out of existence. Rather, the deferential nature of
our review means that we should take that later
statement-i.e., that Thomas's denying that he was at 618
Grandville was "contrary to observations of the law
enforcement officers"-to reconcile any doubt about where
the officers saw Thomas walk away from.
that proper view of the affidavit, and paying the appropriate
"great deference" to the magistrate's
probable-cause determination, Gates, 462 U.S. at
236, the surveillance evidence provided a substantial basis
for concluding that probable cause existed. Argument to the
contrary is unavailing. Any possible contradiction between
"from the area of" and "contrary to
observations of the officers" is more readily
attributable to the "haste of a criminal
investigation" under which officers often draft an
affidavit supporting a search warrant. See id. at
235. Such haste was certainly present here: Officer Bush
applied for and received the warrant on the same day of the
purportedly infirm surveillance and search. To boot, police
officers are mostly non-lawyers who must draft search-warrant
affidavits "on the basis of nontechnical, common-sense
judgments." Id. at 235-36. With the benefit of
hindsight, perhaps the affiant could have been more precise.
But our precedents do not require such an exacting degree of
specificity. For example, in our recent published opinion in
United States v. Tagg, 886 F.3d 579 (6th Cir. 2018),
we held that probable cause existed to search the
defendant's home for child pornography despite the
supporting documents' failure to state that the defendant
had actually clicked on or viewed an online file containing
child pornography. Id. at 585-90. In doing so, we
explained that probable cause is not the same thing as proof.
See id. at 589-90. Likewise, the affidavit here need
not have definitively stated that Thomas was seen leaving 618
Grandville. Rather, it need only have "allege[d] facts
that create a reasonable probability" that he did.
See id at 589. From there, the remaining
inferences needed to connect 618 Grandville to
Christian's drug trafficking are quite straightforward,
given Christian's history of dealing drugs and the
officers' finding heroin in Thomas's car. Under a
common-sense reading of the affidavit, then, its description
of the 618 Grandville surveillance easily exceeds the
"degree of suspicion," id. at 586, needed
to establish probable cause.
the officers who saw Thomas were assigned to
"establish [surveillance] at 618 Grandville
Avenue," not the entire area around it. Assuming those
officers were doing their jobs, the fact that they saw Thomas
at all probably means that he was very near 618 Grandville.
At the very least, that would be far from an arbitrary
inference for a magistrate to draw. In addition, the heroin
found in Thomas's car appeared to "have been removed
from a larger portion of heroin." These facts further
supported the magistrate's determination that there was
probable cause to believe that evidence of drug dealing would
be found at 618 Grandville.
affidavit hardly relies alone on the Thomas surveillance,
however. There is also Christian's lengthy history of
dealing drugs from 618 Grandville, the controlled purchase
from 618 Grandville, and the numerous tips that Christian was
recently dealing large quantities of drugs from 618
Grandville, all of which provide further evidence still that
probable cause existed. When it comes to probable cause,
"the whole is often greater than the sum of its parts-
especially when the parts are viewed in isolation."
See Wesby, 138 S.Ct. at 588 (citing United
States v. Arvizu, 534 U.S. 266, 277-78 (2002)). Even if
each of these additional items would not suffice to establish
probable cause on its own, each factual allegation-whether
ultimately deficient or not-is still a relevant data point in
the "totality of the circumstances" constellation,
rather than an independent thing to be lined up and shot down
one by one. As in Wesby, where the Supreme Court
firmly repudiated the Court of Appeals' attempt to
isolate and explain away each piece of evidence, here too
"the totality of the circumstances gave the officers
plenty of reasons," 138 S.Ct. at 589, to believe that
there was evidence of drug trafficking in Christian's
cause therefore existed, and it is not a close call. The
opposite conclusion can be reached only by engaging in the
kind of "hypertechnical[, ] . . . line-by-line
scrutiny," United States v. Woosley, 361 F.3d
924, 926 (6th Cir. 2004), of the affidavit explicitly
forbidden by the Supreme Court, see Gates, 462 U.S.
at 235-36, 245 n.14. In Wesby, the Court explained
that "this kind of divide-and-conquer approach is
improper," because "[a] factor viewed in isolation
is often more 'readily susceptible to an innocent
explanation' than one viewed as part of a totality."
138 S.Ct. at 589 (quoting Arvizu, 534 U.S. at 274).
That is the case here too, where alone some parts of the
affidavit might be criticized but taken together they point
clearly to one conclusion: that Christian was dealing drugs
from 618 Grandville.
accordingly compelled to hold that there was probable cause
in this case, especially given the undemanding character of
the probable-cause standard and the deferential nature of our
review. Probable cause "requires only a probability or
substantial chance of criminal activity, not an actual
showing of such activity." Tagg, 886 F.3d at
585 (quoting Wesby, 138 S.Ct. at 586). Time and
again the Supreme Court has emphasized that "[p]robable
cause 'is not a high bar'" to clear.
Wesby, 138 S.Ct. at 586 (quoting Kaley v. United
States, 571 U.S. 320, 338 (2014)). Where, as here, a
magistrate has issued a search warrant based on probable
cause, we "do not write on a blank slate."
Tagg, 886 F.3d at 586. Rather, the magistrate's
probable-cause determination "should be paid great
deference," Gates, 462 U.S. at 236 (quoting
Spinelli v. United States, 393 U.S. 410, 419
(1969)), and we overturn that decision only "if the
magistrate arbitrarily exercised his or her authority,"
United States v. Brown, 732 F.3d 569, 573 (6th Cir.
2013) (citing United States v. Greene, 250 F.3d 471,
478 (6th Cir. 2001)). We are "not permitted to attempt a
de novo review of probable cause." Tagg, 886
F.3d at 586 (citing Gates, 462 U.S. at 238-39;
United States v. King, 227 F.3d 732, 739 (6th Cir.
conclusion that probable cause existed to search
Christian's home is compelled, moreover, by our recent
published decision in United States v. Hines, 885
F.3d 919 (6th Cir. 2018), in which we emphasized the
importance of the totality-of-the-circumstances approach:
"Not all search warrant affidavits include the same
ingredients," we said before recognizing that "[i]t
is the mix that courts review to decide whether evidence
generated from the search may be used or must be
suppressed." Id. at 921-22. The affidavit at
issue in Hines, like the one here, was substantial.
Both included, among other things, recent evidence of
drug-related activity: there, a confidential informant's
statement that one day earlier he had seen drugs at the
subsequently searched home; here, the officers' finding
heroin in Thomas's car after having observed his leaving
618 Grandville. But the takeaway from Hines most
salient here is methodological, not analogical:
Hines requires us to look holistically at what the
affidavit does show, instead of focusing on what the
affidavit does not contain, or the flaws of each individual
component of the affidavit. Doing the former establishes
probable cause here. Rejecting probable cause on the
affidavit in this case would therefore fly in the face of
Hines, a well-reasoned precedential decision.
from whether the affidavit contained enough to establish
probable cause, Christian's suppression motion was
properly denied because of the good-faith exception of
United States v. Leon, 468 U.S. 897 (1984). Under
Leon, the exclusionary rule does not bar from
admission "evidence seized in reasonable, good-faith
reliance on a search warrant that is subsequently held to be
defective." Id. at 905. If somehow the
affidavit at issue here could be deemed insufficient to
establish probable cause, then this is a case in the very
heartland of the Leon exception. Contrary to
Christian's argument, the affidavit was not "bare
bones." We reserve that label for an affidavit that
merely "states suspicions, or conclusions, without
providing some underlying factual circumstances regarding
veracity, reliability, and basis of knowledge."
United States v. Washington, 380 F.3d 236, 241 n.4
(6th Cir. 2004) (quoting United States v. Van
Shutters, 163 F.3d 331, 337 (6th Cir. 1998)).
To further describe the bare- bones standard is to show why
it does not apply here. We have said that, to be considered
bare bones, an affidavit must be "so lacking in indicia
of probable cause" as to make an officer's
"belief in its existence [ ] objectively
unreasonable." United States v. Laughton, 409
F.3d 744, 748 (6th Cir. 2005). In United States v.
Williams, 224 F.3d 530 (6th Cir. 2000), we described how
woefully deficient an affidavit must be before it meets this
An example of a "bare bones" affidavit is found in
Gates, 462 U.S. at 239, where the Court, pointing to
one from Nathanson v. United States, 290 U.S. 41
(1933), said, "A sworn statement of an affiant that
'he has cause to suspect and does believe that'
liquor illegally brought into the United States is located on
certain premises will not do." Another illustration was
taken from Aguilar v. Texas, 378 U.S. 108 (1964),
that "[a]n officer's statement that 'affiants
have received reliable information from a credible person and
believe' that heroin is stored in a home, is likewise
inadequate." Gates, 462 U.S. at 239. Thus, a
"bare bones" affidavit is similar to, if not the
same as, a conclusory affidavit. It is "one which states
'only the affiant's belief that probable cause
existed.'" United States v. Finch, 998 F.2d
349, 353 (6th Cir. 1993) (quoting United States v.
Ciammitti, 720 F.2d 927, 932 (6th Cir. 1983)).
Williams, 224 F.3d at 533.
one can split hairs with the affidavit in this case, it is
impossible to deny that it contains factual allegations, not
just suspicions or conclusions. Importantly, each factual
allegation, regardless of any infirmities, at least purports
to link Christian to drug trafficking at 618 Grandville. An
affidavit need only present "some connection,
regardless of how remote it may have been," United
States v. White, 874 F.3d 490, 497 (6th Cir. 2017)
(quoting Laughton, 409 F.3d at 749-50), or, in other
words, establish a "minimally sufficient nexus between
the illegal activity and the place to be searched,"
United States v. Brown, 828 F.3d 375, 385 (6th Cir.
2016) (quoting United States v. Carpenter, 360 F.3d
591, 596 (6th Cir. 2004) (en banc)), to avoid the bare-bones
designation and thus be one upon which an officer can rely in
good faith. The affidavit here necessarily satisfies this low
requirement. To hold otherwise would be to equate the
five-page, extensively sourced affidavit here with the short,
conclusory, and self-serving ones for which the bare-bones
designation ought to be reserved.
decision in United States v. Hython, 443 F.3d 480
(6th Cir. 2006), is almost completely inapposite here. We
held there that the affidavit-which recounted only a single,
undated controlled purchase-did not satisfy the good-faith
exception. Id. at 486, 488-89. Although the
affidavit linking 618 Grandville to drug dealing did include
information about a controlled purchase that Christian
contends was stale, any similarity between this case and
Hython ends there. This case is like Hython
only if, engaging in the methodological error forbidden by
the Supreme Court in Wesby, one completely ignores
most of the affidavit by discounting each item one by one.
Indeed, Hython by negative inference supports the
existence of good-faith reliance here by showing just how
unsubstantiated an affidavit must be to fail to qualify under
Leon's good-faith exception.
a particularly egregious case to misapply the good-faith
exception given the utter lack of police wrongdoing. The
"exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and
magistrates." Leon, 468 U.S. at 916. As the
Supreme Court explained in Leon, "the marginal
or nonexistent benefits produced by suppressing evidence
obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial
costs of exclusion." Id. at 922. This balance
supports the principle that, as we said in
Carpenter, the good-faith exception requires "a
less demanding showing than the 'substantial basis'
threshold required to prove the existence of probable cause
in the first place." 360 F.3d at 595-96 (quoting
United States v. Bynum, 293 F.3d 192, 195 (4th Cir.
2002) (citation omitted)). Refusing to adhere to those
decisions in a case like Christian's would unduly exalt
the Fourth Amendment interest marginally served by deterring
nonculpable conduct over the public interest in combatting
crime-and would amount to effective disregard of Supreme
Court precedent as well as our own.
it is questionable to conclude that the district court erred
by admitting the challenged telephone-call evidence. In any
event, we may affirm if we can say with "fair
assurance" that any such error did not
"substantially sway" the judgment. Kotteakos
v. United States, 328 U.S. 750, 765 (1946). That is the
case here. As explained above, the evidence obtained in
accordance with the search warrant was properly admitted.
Because suppression was correctly denied, the jury properly
heard, for example, evidence that officers found 70 grams of
heroin next to two loaded guns in Christian's basement
and cocaine and marijuana in other parts of the house, that
the DNA found on one of the guns matched Christian's, and
that Christian's cell phone contained text messages about
drug trafficking. Considering that evidence, the phone call
added relatively little: it connected Thomas and Christian,
which provided a basis for the jury to conclude that
Christian had sold drugs to Thomas, and it linked Christian
to a third gun. But even had that evidence not been admitted,
no jury could have acquitted Christian on these charges. The
evidence against him was too damning. Admitting the
phone-call statements was therefore harmless.
judgment of the district court is affirmed.
THAPAR, Circuit Judge, concurring.
concur in the majority opinion. There was probable cause to
search Tyrone Christian's house, and, at the very least,
the officers executed that search in good faith. But because
of our precedent, we must ignore critical evidence of which
the officers undisputedly knew and isolate the good-faith
analysis to the four corners of the affidavit. See United
States v. Laughton, 409 F.3d 744, 751-52 (6th Cir.
2005). I write separately to explain why
Laughton's limit on the good-faith exception
conflicts with Supreme Court precedent and should be
Thomas Bush's affidavit included a number of facts
linking Christian and his house to drug trafficking: (1)
Christian had four drug-crime convictions in the past
nineteen years (two of which involved conduct that occurred
at his house); (2) a confidential informant had purchased
drugs from Christian at his house nine months earlier; (3)
within the past four months, several "subjects"
told the officers that they had purchased "large
quantities" of drugs from Christian at his house; and,
finally, (4) on the day of the search, officers stopped
Rueben Thomas after they saw him leave the "area
of" Christian's house and discovered 20 grams of
heroin in Thomas's car. R. 42-1, Pg. ID 114-15.
Critically, Thomas's heroin showed current drug
dealing at Christian's house, supplementing the older
information in Bush's affidavit. But the link between
Thomas's heroin and Christian's house was blurry
because the affidavit was vague. The affidavit did not say
that the officers saw Thomas interact with Christian or that
they saw Thomas inside Christian's house-only that they
saw him "walk away from the area of"
Christian's house. Id. at 115.
the magistrate believed the affidavit was good enough and
granted the officers' request for a search warrant. After
obtaining the warrant, the officers searched Christian's
house and uncovered extensive evidence of drug dealing:
marijuana, cocaine, heroin, drug packaging materials, and two
guns. Based on this evidence, Christian was convicted of
possessing a controlled substance with intent to distribute,
possessing a firearm in furtherance of drug trafficking, and
being a felon in possession of a firearm.
claims the evidence against him should have been suppressed,
arguing that the officers lacked probable cause to search his
house and that the good-faith exception to the exclusionary
rule does not apply. Because of Laughton, the
parties' good-faith arguments are restricted to the
language of the affidavit. And because that language is vague
on a critical point-the link between Thomas's heroin and
Christian's house-the parties parse through the affidavit
and debate the best interpretation of its language (almost as
if they were interpreting a statute).
uncontroverted evidence shows that on the day of the search,
surveilling officers twice observed Thomas interacting
with Christian at Christian's house.
First, Thomas met with Christian for "approximately five
minutes" in the driveway of his house. R. 152, Pg. ID
1131- 32. Then, later that afternoon, Thomas returned and
went inside for about two hours. After he left, the officers
stopped him and discovered the heroin. These facts link
Thomas and his heroin to Christian and his house. But,
unfortunately, they were left out of the affidavit. The first
encounter did not make it into the affidavit at all, and the
second one did only in the vague terms described above.
confines us to the words of that vague affidavit in
evaluating whether the good-faith exception applies. We
cannot consider the officers' actual observations or
determine the ...