After last week’s decision in Strieff, it is refreshing to see a defense win out of the Sixth Circuit this week. (Remember, Strieff essentially gives police the ability to detain now and ask questions later.) In United States v. Ricky Brown, the Sixth Circuit reversed the denial of Brown’s suppression motion and vacated his convictions.
A DEA Agent obtained a search warrant for Brown’s home in Detroit. The search warrant had four parts:
1. the boiler plate language about drug crimes,
2. facts about an investigation of Middleton (an associate of Brown),
3. facts about the arrest of Middleton, Brown, and another heroin buddy, and
4. additional facts about Brown.
Using a CI, DEA agents set up an undercover buy from Middleton. They spoke with Middleton on the phone, agreeing to meet south of Detroit later that evening. As agents made these recorded calls, they conducted surveillance on Middleton’s house. Three men arrived at the house in a Yukon Denali. A Silverado pick-up truck was already in Middleton’s drive, prior to the arrival of the Yukon. After receiving word from Middleton that he was on the way to the buy-sell, police witnessed Middleton and another man drive away in the Yukon, and a third man leave in the Silverado. Troopers conducted a simultaneous traffic stop on the two vehicles. The third man, Woods, had 565 gram of heroin in a tool case in the back of the pick-up. While conducting surveillance at Middleton’s home, police saw someone place that case in the bed of the truck before leaving.
The Yukon was driven by Middleton and Brown was in the passenger seat. Both men were arrested for attempted delivery of heroin as found in the Silverado. There were four phones in the Yukon, including a phone matching the number under which the controlled buy was arranged. Brown had $4,800 in cash, which was seized by law enforcement. On his booking form, Brown listed a Moross Road address for his personal residence.
The DEA obtained a state search warrant for Middleton’s residence and found 90 grams of suspected heroin. A 2002 Yukon registered to Brown, located outside Middleton’s residence, alerted to the presence of narcotics. Nine days later, police went through the phones seized from the Yukon and found a drug-related text message, likely about cocaine. Brown’s criminal history showed he was acquitted of drug charges 15 years prior, and convicted on a marijuana distribution charge in 1999. As a result, a search warrant was applied for, obtained, and executed approximately three weeks after Brown’s arrest.
The search of Brown’s house yielded two guns, 60g of marijuana, a digital scale, $5,800 in cash, and an alleged drug ledger, but nothing about heroin. BUMMER. After a suppression hearing, the District Court ruled that Leon good faith would save the day. At a jury trial, Brown was acquitted of the heroin offenses, but found guilty of the guns and marijuana.
SO? What’s the 6th Circuit’s analysis?
Citing all that feel-good defense law (Illinois v. Gates, Kyllo, Payton v. New York), the Sixth Circuit looked at NEXUS. And they found that there wasn’t any! There was no evidence that Brown was trafficking narcotics out of his residence. There was no CI spilling secrets of illicit rendezvous to Brown’s house or any surveillance conducted. None of the recorded calls referenced the Brown house. The Court found that just because a dog alerted on Brown’s vehicle while at another location, that doesn’t exactly inculpate his house. These facts would have supported a search of Brown’s car; not his house. Furthermore, the Court explicitly rejected the suggestion that Brown’s status as a “known drug dealer” allowed law enforcement to create a tenuous connection and search his home. Instead, the panel re-enforced the requirement that the specific, illegal items sought out by police will be located at that specific location.
“Because we conclude that the police lacked probable cause to search Brown’s residence on this ground, we need not also decide whether the information supporting the warrant was stale.” (p. 12.)
Finally, the Sixth Circuit held that the Leon good faith is less demanding than the probable cause standard. However,the Affidavit to search Brown’s house was so lacking of indicia of probable cause , that the officer did not have a good-faith basis for believing the warrant to have a “plausible connection.” The only reference in the affidavit was that the Yukon found at Middleton’s residence was registered to Brown’s Moross Road home. The Sixth Circuit said that tiny little connection is simply not enough.
Overall, a solid opinion, written by Judge Stranch, and helpful case law if/when police search a home that is unconnected to the actual criminal offense.
Read the full opinion here:
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