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United States v. Christian

United States Court of Appeals, Sixth Circuit

May 31, 2019

United States of America, Plaintiff-Appellee,
v.
Tyrone Dexter Christian, Defendant-Appellant.

          Reargued En Banc: March 20, 2019

          Appeal 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.

         REARGUED EN BANC:

          Lucille A. Jewel, UNIVERSITY OF TENNESSEE, Knoxville, Tennessee, for Appellant.

          Jennifer L. McManus, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON SUPPLEMENTAL BRIEF:

          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, Circuit Judges.

          OPINION

          ROGERS, CIRCUIT JUDGE

         Based 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.

         I.

         On 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."

         A 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.

         Christian 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.

         Christian 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 mother.

         II.

         A.

         The 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.

         The 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."

         That 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."

         Viewing 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.

         Indeed, 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.

         Under 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.

         Moreover, 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.

         The 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 home.

         Probable 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.

         We are 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. 2000)).

         The 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.

         B.

         Apart 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 standard:

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.

         Although 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.

         Our 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.

         This is 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.

         C.

         Finally, 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.

         III.

         The judgment of the district court is affirmed.

          THAPAR, Circuit Judge, concurring.

         I 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 overruled.

         I.

         Officer 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.

         Still, 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.

         Christian 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).

         But 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.

         Laughton 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 ...


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