from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:14-cr-20018-1-John
Thomas Fowlkes, Jr., District Judge.
J. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for
R. Stringfellow, UNITED STATES ATTORNEY'S OFFICE,
Memphis, Tennessee, for Appellee.
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
GRIFFIN, Circuit Judge.
narcotics officer watched defendant Albert White sell
marijuana to an undercover informant in the driveway of
White's home, the officer sought a search warrant for the
residence. His affidavit recounted the recent drug deal, a
confidential tip that White was selling marijuana from the
residence, defendant's previous drug offenses, and the
fact that defendant keeps pit bulls "at his
residence." Defendant argues that this information is so
lacking in indicia of probable cause that no reasonable
officer would believe there was probable cause to search his
home. We disagree and affirm his convictions and sentences.
October 2013, narcotics investigator Brandon Williams
received information from a confidential source that Albert
White was selling marijuana from 196 Turner Lane in
Covington, Tennessee. Williams enlisted the confidential
source to execute a "controlled buy" from White.
Equipped with a recording device and $250 in buy money, the
confidential source met White in the driveway of 196 Turner
Lane. When he arrived, defendant was already sitting in his
white truck, where the confidential source joined him to
consummate the deal. Following the exchange, defendant drove
off and the confidential source rendezvoused with Williams,
who was staked out nearby monitoring the transaction. After
reviewing the footage and conducting some additional
investigation, Williams prepared an affidavit in support of a
search warrant for 196 Turner Lane. In addition to recounting
Williams' law-enforcement and narcotics-investigation
experience, the affidavit stated:
Investigator Brandon Williams received information that
marijuana was being sold from 196 Turner Lane in Covington,
TN 38019 in Tipton County, TN by a black male identified as
Albert Dajuan White. Investigator Brandon Williams initiated
a controlled purchase of marijuana with the use of a
confidential source from the residence. Investigator Brandon
Williams placed audio and video on the confidential source.
The confidential source then proceeded to 196 Turner Lane in
Covington, TN[, ] Tipton County, TN. Investigator Brandon
Williams observed the confidential source pull into the
driveway of 196 Turner Lane in Covington, TN 38019 in Tipton
County, TN and pull up next to a white Chevrolet truck where
Albert White gave the confidential source the marijuana for
the previously recorded drug fund money. Investigator Brandon
Williams then observed the white Chevrolet truck leave the
residence with Albert White driving the vehicle. The
confidential source then left the residence and met with
Investigators where the marijuana was recovered. The
transaction was captured on an audio and video device. This
incident occurred in Tipton County, TN. in the last
seventy-two hours. A sudden and forceful entry is clearly
necessary for the safety of Deputies, residents, or other
nearby persons or property due to Albert Dajuan White's
extensive criminal history consisting of Evading Arrest,
Resisting arrest, and numerous possessions of SCH II and VI.
Albert is also known to have dogs believed to [be] pit bulls
at his residence.
that the foregoing was sufficient to establish probable
cause, a local state court judge issued a search warrant. The
ensuing search uncovered over a pound of marijuana, a
firearm, ammunition, and roughly $32, 000 in cash, some of
which was traced to the controlled buy.
was indicted on drug and firearm-possession charges and moved
to suppress the evidence seized from his residence, arguing
that the affidavit failed to establish probable cause to
believe that contraband would be found there. No reasonable
officer would have believed otherwise, defendant also
contended, because "the affidavit is so facially
defective given that no time or date is stated as to when the
alleged criminal activity took place." A magistrate
judge issued a report, recommending that the district court
deny the motion because the affidavit established probable
cause and, in any event, it was not so lacking in that
department that the good-faith exception would apply. The
district court agreed with defendant that the affidavit
failed to establish probable cause. However, noting
defendant's failure to object to the magistrate's
good-faith ruling, the district court held that the
magistrate judge's good-faith analysis was sound and
denied the motion.
proceeded to trial, where a jury found him guilty of being a
felon in possession of a firearm and felon in possession of
ammunition, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him to 33 months in prison,
concurrent with an on-going state sentence for the violation
of his probation.
appeal presents two issues: first, whether the district court
erred in denying his motion to suppress, and second, whether
the district court committed plain error in failing to
specify the "start date" for his federal sentence
or adjusting it under U.S.S.G. § 5G1.3(b).
motion-to-suppress context, this court reviews the district
court's factual findings for clear error and its legal
conclusions de novo. United States v. Washington,
380 F.3d 236, 240 (6th Cir. 2004).
this court reviews only those issues adequately preserved for
appeal. When a party neglects to advance a particular issue
in the lower court, or fails to lodge a specific objection to
a particular aspect of a magistrate judge's report and
recommendation, we consider that issue forfeited on appeal.
United States v. Archibald, 589 F.3d 289, 295-96
(6th Cir. 2009); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981). Both types of forfeiture could
apply in this case. In the district court, defendant
neglected to make the assertions of lack of good-faith he
advances on appeal, and, perhaps more fatally, he failed to
object to the magistrate's good-faith analysis, something
both the government and the district court noted below.
our forfeiture rule is not inflexible. Like other procedural
rules, it too is susceptible to abandonment, see
Washington, 380 F.3d at 240 n.3, and for whatever
reason, the government has decided not to pursue this
forfeiture issue on appeal. Loath to raise issues for the
parties, much less resolve cases on them, we therefore
proceed to the merits. Cf. DaimlerChrysler Corp.
Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922
(6th Cir. 2006) ("Our function is to review the case
presented to the district court, rather than a better case
fashioned after a district court's unfavorable
argues that the district court erred in denying his motion to
suppress. Though it correctly held that the affidavit lacked
probable cause, he claims that the district court erred in
ruling that the good-faith exception applied. The government
does not challenge the district court's probable-cause
ruling, arguing instead that the affidavit plainly qualifies
for the good-faith exception. We therefore proceed to the
good-faith inquiry, assuming, without deciding, that the
affidavit failed to establish probable cause.
United States v. Leon, the Supreme Court created an
exception to the exclusionary rule for evidence "seized
in reasonable, good-faith reliance on a search warrant that
is subsequently held to be defective." 468 U.S. 897, 905
(1984). In a break from the previously reflexive and
uncompromising approach of excluding all evidence seized
without probable cause, the Supreme Court established a new
objective inquiry limiting suppression to circumstances in
which the benefits of police deterrence outweigh the heavy
costs of excluding "inherently trustworthy tangible
evidence" from the jury's consideration.
Id. at 907. Following Leon, courts
presented with a motion to suppress claiming a lack of
probable cause must ask "whether a reasonably well
trained officer would have known that the search was illegal
despite the magistrate's decision." United
States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008)
(quoting Leon, 468 U.S. at 923 n.23). Only when the
answer is "yes" is suppression appropriate.
courts in resolving this question, Leon outlined
four circumstances in which an officer's reliance would
not be objectively reasonable. Leon, 468
U.S. at 914-15, 923. We deal here with the third scenario:
when the affidavit is "so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable." Id. at 923 (quoting Brown v.
Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J.,
concurring in part)).
affidavit that is so lacking in indicia of probable cause
that no reasonable officer would rely on the warrant has come
to be known as a "bare bones" affidavit. See
United States v. Weaver, 99 F.3d 1372, 1380 (6th Cir.
1996). A bare-bones affidavit, in turn, is commonly defined
as one that states only "suspicions, beliefs, or
conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of
knowledge." United States v. Laughton, 409 F.3d
744, 748 (6th Cir. 2005) (quoting Weaver, 99 F.3d at
1378). Put more simply, a bare-bones affidavit is a
conclusory affidavit, one that asserts "only the
affiant's belief that probable cause existed."
United States v. Williams, 224 F.3d 530, 533 (6th
Cir. 2000) (quoting United States v. Finch, 998 F.2d
349, 353 (6th Cir. 1993)). It provides nothing more than a
mere "guess that contraband or evidence of a crime would
be found, " United States v. Schultz, 14 F.3d
1093, 1098 (6th Cir. 1994), either "completely
devoid" of facts to support the affiant's judgment
that probable cause exists, United States v.
Carpenter, 360 F.3d 591, 595-96 (6th Cir. 2004) (en
banc), or "so vague as to be conclusory or
meaningless." United States v. Frazier, 423
F.3d 526, 536 (6th Cir. 2005) (quoting Carpenter,
360 F.3d at 596).
contrast, an affidavit is not bare bones if, although falling
short of the probable-cause standard, it contains "a
minimally sufficient nexus between the illegal activity and
the place to be searched." Carpenter, 360 F.3d
at 596. If the reviewing court is "able to identify in
the averring officer's affidavit some
connection, regardless of how remote it may have
been"-"some modicum of evidence, however
slight"-"between the criminal activity at issue and
the place to be searched, " then the affidavit is not
bare bones and official reliance on it is reasonable.
Laughton, 409 F.3d at 749-50.
bare-bones affidavit should not be confused with one that
lacks probable cause. An affidavit cannot be labeled
"bare bones" simply because it lacks the requisite
facts and inferences to sustain the magistrate's
probable-cause finding; rather, it must be so
lacking in indicia of probable cause that, despite a judicial
officer having issued a warrant, no reasonable
officer would rely on it. United States v. Helton,
314 F.3d 812, 824 (6th Cir. 2003). The distinction is not
merely semantical. There must be daylight between the
"bare-bones" and "substantial basis"
standards if Leon's good-faith exception is to
strike the desired balance between safeguarding Fourth
Amendment rights and facilitating the criminal justice
system's truth-seeking function. See Leon, 468
U.S. at 906-07, 913-21; Carpenter, 360 F.3d at 595.
Only when law enforcement officials operate in
"'deliberate, ' 'reckless, ' or
'grossly negligent' disregard for Fourth Amendment
rights" will the "heavy toll" of suppression
"pay its way." Davis v. United States, 564
U.S. 229, 237-38 (2011) (quoting Herring v. United
States, 555 U.S. 135, 144 (2009), and Leon, 468
U.S. at 908 n.6). Otherwise, "when the police act with
an objectively 'reasonable good-faith belief' that
their conduct is lawful, " excluding evidence recovered
as a result of a technically deficient affidavit serves no
useful purpose under the exclusionary rule. Id. at
238 (quoting Leon, 468 U.S. at 909, 919). We must
therefore find that the defects in an affidavit are apparent
in the eyes of a reasonable official before faulting an
executive official for complying with his or her duty to
execute a court-issued order. Leon, 468 U.S. at 921
("[O]nce the warrant issues, there is literally nothing
more the policeman can do in seeking to comply with the
law." (quoting Stone v. Powell, 428 U.S. 465,
498 (1976) (Burger, C.J., concurring))).
that legal background in mind, we turn now to the affidavit
in this case. Distilled to its essence, it states that, after
receiving information that defendant was selling drugs from
196 Turner Lane, Williams verified that tip by conducting a
controlled buy on the premises of the residence and
investigating defendant's criminal history and connection
to the residence. Taken together, these factual components
establish a "minimally sufficient nexus" between
defendant's drug-distribution activity and the residence
at 196 Turner Lane.
begin, the informant's tip does provide some
connection between drug distribution and the residence at 196
Turner Lane. For instance, the tip was not a broad allegation
that defendant was selling drugs generally. Rather, it
identified the precise address at which the criminal activity
was occurring, a pertinent factor in establishing a minimal
nexus, to say nothing of probable cause. See
Carpenter, 360 F.3d at 594 ("[T]he circumstances
must indicate why evidence of illegal activity will be found
'in a particular place.'").
critical, however, are Williams' additional investigative
steps, beginning with the controlled buy from defendant on
the premises. By corroborating key components of the
informant's tip-that defendant was personally
distributing the specific kind of narcotic (marijuana) at the
specific location (the premises of 196 Turner Lane) alleged
by the informant- Williams' affidavit provided a concrete
factual link between defendant, his criminal activity, and
facts bolster this nexus. First, Williams discovered that
defendant had "numerous" drug convictions, lending
further credence to the informant's tip that
defendant's narcotics activity was ongoing and that the
controlled buy was not an aberration. Second, he stated that
it was known that defendant kept pit bulls "at his
residence, " raising the inference that the home at 196
Turner Lane was the site of his drug distribution activity.
from being "completely devoid" of facts or
consisting solely of "suspicions, beliefs, or
conclusions, " Laughton, 409 F.3d at 748-49,
Williams' affidavit contains sufficient factual content
that, when taken together and read in a common-sense,
practical manner, establishes "some connection,
" id. at 750, some "minimally sufficient
nexus, " Carpenter, 360 F.3d at 596, between
suspected drug distribution and the residence. Williams saw
defendant sell drugs on the premises of a residence,
indicated that the residence was defendant's by
referencing what he had inside, and demonstrated that the
sale was not an aberration by documenting defendant's
previous drug convictions-all of which corroborated an
informant's tip that defendant was selling drugs from the
residence. Based on ...