United States of America v. DENNIS WASHINGTON; and EBONY BROWN

*The Honorable Gordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0276P (6th Cir.)
File Name: 04a0276p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DENNIS WASHINGTON; and
EBONY BROWN,
Defendants-Appellees.
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No. 03-3959
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 03-00009—Algenon L. Marbley, District Judge.
Argued: June 9, 2004
Decided and Filed: August 23, 2004
Before: BOGGS, Chief Judge; MOORE, Circuit Judge;
and QUIST, District Judge.*
2 United States v. Washington, et al. No. 03-3959
1In the appellees’ brief, counsel stated that this residence belonged
to W ashington even though the Cadillac registered to that address was
registered to Ebon y Bro wn, who was not a re sident there, accord ing to
counsel. Appellees’ Brief at 11-13.
_________________
COUNSEL
ARGUED: Kevin W. Kelley, UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellant. Lewis E.
Williams, Jr., Columbus, Ohio, for Appellees. ON BRIEF:
Kevin W. Kelley, UNITED STATES ATTORNEY,
Columbus, Ohio, for Appellant. Lewis E. Williams, Jr.,
Columbus, Ohio, John Boyd Binning, Heather R. Zilka,
Columbus, Ohio, for Appellees.
BOGGS, C. J., delivered the opinion of the court, in which
QUIST, D. J., joined. MOORE, J. (pp. 13-26), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
BOGGS, Chief Judge. The United States appeals the
district court’s granting of the defendants’ motion to suppress
evidence. The defendants, Dennis Washington and Ebony
Brown, had been indicted on several counts after police
officers executed a search warrant at 3112 Crossgate Road1
and found narcotics and firearms. Although the officers had
obtained a warrant, the defendants filed a motion to suppress
arguing that the officer’s affidavit, which was the sole basis
of the warrant, was insufficient to establish probable cause.
The district court agreed and granted the motion to suppress.
The United States now appeals, arguing that probable cause
did exist or, alternatively, that the good-faith exception of
United States v. Leon, 468 U.S. 897 (1984) should have been

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No. 03-3959 United States v. Washington, et al. 3
2This man was later identified as defendant W ashington, although the
police were unable to identify him before the execution of the warrant at
3112 Crossgate Road.
applied. Because we find that the good-faith exception
should have been applied, we now reverse.
I
The case began when the Columbus (Ohio) Police
Department’s Narcotics Bureau planned an undercover “buy”
of crack cocaine from an “unwitting,” a person who does not
know that he is dealing with the police. Detective Michael
Johnson, working undercover, arranged a buy from an
unwitting on October 1, 2002. Johnson met with the
unwitting, who telephoned his narcotics supplier. Johnson
and the unwitting then drove to a designated meeting place.
Shortly thereafter, a black male driving a blue Cadillac parked
next to Johnson’s car.2 The unwitting got out and entered the
Cadillac. When the unwitting returned to Johnson’s car, he
produced a bag of crack cocaine. Johnson recorded the
license plate of the Cadillac and later determined that it was
registered to a woman named Ebony Brown at 3112
Crossgate Road, Columbus, Ohio. The police subsequently
began conducting surveillance on that residence.
On October 5 (four days later), Johnson arranged for
another buy with the same unwitting. The unwitting again
called his supplier, and thereafter reported that the supplier
said that he would be delayed because he was waiting on a
ride to pick up his Cadillac in the repair shop. Shortly after
this call, the police officers at 3112 Crossgate Road observed
a Chevrolet Blazer pick up a black male (later identified as
Washington) who emerged from that residence. The officers
trailed the Blazer, which eventually dropped the man off at
“Columbus Car Audio,” where he picked up a blue Cadillac
and drove it away. While the unidentified man was driving,
the unwitting received a call from the supplier, who instructed
4 United States v. Washington, et al. No. 03-3959
him to go to a local Burger King. Detective Johnson and the
unwitting then drove to Burger King to wait for the supplier.
The blue Cadillac (which was being followed) pulled into the
Burger King parking lot and the unwitting got out to meet
with the driver. Johnson immediately recognized that this
was both the same man and the same Cadillac involved in the
first “buy” on October 1. After leaving the Cadillac, the
unwitting came back and again produced crack cocaine.
Johnson was unable to identify the driver of the blue Cadillac
at that time, though he subsequently observed the blue
Cadillac parked at 3112 Crossgate Road on both October 8
and October 9. As it turned out, the man driving the blue
Cadillac was defendant Washington.
Based on these facts, Johnson sought a warrant to search
the residence at 3112 Crossgate Road. The basis for the
warrant was a four-page affidavit, in which Johnson relayed
in narrative form the facts stated above. He added that, based
on his experience, individuals involved with drug trafficking
commonly keep records, documents, and money close by. In
addition, Johnson noted that the Crossgate house had been
robbed two months earlier, which was also (in his opinion)
“indicative of suspects searching for narcotics and large sums
of cash.” A state magistrate judge approved the warrant,
which was specifically limited to documents and records
relating to drug trafficking, but did not authorize a search for
drugs themselves.
The police conducted the search on October 11 (the warrant
was issued on the 9th), and saw drugs in plain view after they
entered the house. Based on these observations, the police
obtained a second warrant to search for drugs and drug
paraphernalia. Although it is not relevant for the issues in this
case, the police found substantial amounts of crack cocaine,
a firearm, and large amounts of money at the Crossgate
residence.
The grand jury returned a four-count indictment against the
defendants, charging them with violations of various drug and

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No. 03-3959 United States v. Washington, et al. 5
3In the district court, the government had raised the issue of whether
the defendants had standing for Fourth Amendm ent purposes. The
government failed to raise this issue on appeal, and has therefore waived
it. See United States v. Higgins, 299 F.3d 1039, 1050 (9th Cir. 2002)
(“Standing to challenge a search or seizure is a matter of substantive
Fourth Amendment law rather than of Article III jurisdiction, meaning
that the government can waive the standing defense by not asserting it.”)
(citing Illinois v. Rakas, 439 U.S. 128 , 139-40 (197 8)).
firearm-related offenses. Prior to trial, the defendants moved
to suppress all evidence obtained in the search. They made
four specific arguments as to why the evidence should be
suppressed: (1) the warrant was invalid because the affidavit
lacked evidence to establish probable cause, and the good-
faith exception did not apply; (2) the police executing the
search failed to knock and announce; (3) information in
affidavit was too stale; and (4) the evidence from the second
search was the “fruit of the poisonous tree.”
The district court found that the affidavit was not sufficient
to establish probable cause. Specifically, the court found that
the evidence did not establish a sufficient nexus between the
criminal activity and the residence itself. The court relied
heavily on the fact that the police had not identified the
suspect (who turned out to be Washington) and had not
established where he lived prior to executing the search.
Finding that the initial search was invalid, the court did not
reach the other arguments, though it also suppressed the
evidence of the second search as “tainted fruit.” The United
States appealed.3
II
The government contends that the district court erred by
finding that the affidavit failed to establish probable cause.
Alternatively, even if probable cause did not exist, the
government argues that the good-faith exception recognized
in United States v. Leon, 468 U.S. 897 (1984) should have
been applied. We consider each argument in turn.
6 United States v. Washington, et al. No. 03-3959
A
“When reviewing decisions on motions to suppress, this
court will uphold the factual findings of the district court
unless clearly erroneous, while legal conclusions are reviewed
de novo.” United States v. Weaver, 99 F.3d 1372, 1376 (6th
Cir. 1996). Because there was no hearing and no factual
findings, the district court made only legal conclusions.
“Where, as in this case, the district court is itself a reviewing
court, we owe its conclusions no particular deference. In
reviewing a state magistrate's determination of probable
cause, this court pays great deference to a magistrate's
findings, which should not be set aside unless arbitrarily
exercised.” United States v. Leake, 998 F.2d 1359, 1362-63
(6th Cir. 1993) (internal citations and quotations omitted).
In determining if an affidavit establishes probable cause:
[T]he task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . .
there is a fair probability that contraband or evidence of
a crime will be found in a particular place. And the duty
of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that
probable cause existed.
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)
(en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
(1983) (emphasis added)). “To justify a search, the
circumstances must indicate why evidence of illegal activity
will be found in a particular place. There must, in other
words, be a nexus between the place to be searched and the
evidence sought.” Ibid. (internal citations and quotations
omitted). Thus, the critical question here is whether the facts
alleged in the affidavit established a sufficient nexus between
the criminal activity observed and the Crossgate residence.

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No. 03-3959 United States v. Washington, et al. 7
4A “bare bo nes” affidavit “states suspicions, or conclusions, without
providing some underlying factua l circumstances regarding veracity,
reliability, and basis of knowledge.” United States v. Va n Shutters, 163
F.3d 331 , 337 (6th Cir. 1998) (quoting Weaver, 99 F.3d at 1378).
Under the facts of this case, the existence of probable cause
is an extremely close call. However, given our conclusion
that the good-faith exception clearly applies, we will assume
without deciding that probable cause did not exist.
B
As explained above, the police officers in this case
obtained, and relied upon, a warrant issued by a state
magistrate judge. Therefore, the goverment argues that
Leon’s good-faith exception should have been applied.
This court has explained that “[c]ourts should not . . .
suppress evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant.” Carpenter,
360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897,
922 (1984)). Pursuant to Leon, this good-faith exception will
not apply in four specific situations: (1) where the affidavit
contains information the affiant knows or should have known
to be false; (2) where the issuing magistrate wholly
abandoned his or her judicial role; (3) where the affidavit was
so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable [or] where the
warrant application was supported by [nothing] more than a
“bare bones” affidavit4; (4) where the warrant is so facially
deficient that the executing officers cannot reasonably
presume it to be valid. United States v. Van Shutters, 163
F.3d 331, 337 (6th Cir. 1998). The defendants argued that the
second and third situations existed here. The district court
concluded that the third applied and thus rejected the
government’s good-faith-exception argument.
This court reviews the decision of whether to apply the
good-faith exception de novo. Leake, 998 F.2d at 1366. In
8 United States v. Washington, et al. No. 03-3959
Carpenter, a case decided well after the proceedings below,
we recently outlined the appropriate showing that must be
made to establish that the officers could have reasonably
believed that the affidavit was sufficient to establish probable
cause. Under Carpenter, this showing is less demanding than
the showing necessary to establish probable cause:
If a lack of a substantial basis also prevented application
of the Leon objective good faith exception, the exception
would be devoid of substance. In fact, Leon states that
. . . a finding of objective good faith [is inappropriate]
when an officer's affidavit is “so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” This is a less demanding showing
than the “substantial basis” threshold required to prove
the existence of probable cause in the first place.
Carpenter, 360 F.3d at 595 (quoting United States v. Bynum,
293 F.3d 192, 195 (4th Cir. 2002)). Carpenter makes it clear
that the “so lacking in indicia” test is less demanding than the
“substantial basis” test. Thus, it is entirely possible that an
affidavit could be insufficient for probable cause but
sufficient for “good-faith” reliance.
The standard stated in Carpenter is consistent with the
purpose and rationale of the exclusionary rule. The Supreme
Court has explained that the exclusionary rule is “a judicially
created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect, rather than a
personal constitutional right of the party aggrieved.” Leon,
468 U.S. at 906. Excluding evidence deters constitutional
violations by providing incentives for the police to seek
warrants before executing a search. Thus, when the officers
do in fact obtain a warrant, the purpose of the exclusionary
rule has largely been served. While it is true that the police
still have a duty to assess the affidavit upon which the warrant
was based, we will, under Carpenter, exclude evidence in
these situations only when the affidavit is “so lacking in

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No. 03-3959 United States v. Washington, et al. 9
indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Carpenter, 360 F.3d at 595.
There have been several recent cases, all of which involved
questions about the nexus between criminal activity and
places, where this court has found that probable cause did not
exist, but that the good-faith exception should apply. United
States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc);
United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998);
United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994); United
States v. Savoca, 761 F.2d 292 (6th Cir. 1985).
For example, in Carpenter, this court explained, “[w]e
[have] previously found Leon applicable in cases where we
determined that the affidavit contained a minimally sufficient
nexus between the illegal activity and the place to be searched
to support an officer's good-faith belief in the warrant's
validity, even if the information provided [did not] establish
probable cause.” 360 F.3d at 596. In Carpenter, police
helicopter surveillance had observed a marijuana patch near
a residence and a beaten path extending from the house to the
plants. This court found that the evidence submitted by the
police failed to provide a sufficient nexus to establish
probable cause, but still found that Leon applied because “the
affidavit was not totally lacking in facts connecting the
residence to the marijuana patches.” Ibid. We added,
“[t]hese facts . . . were too vague to provide a substantial basis
for the determination of probable cause. But these facts . . .
were not so vague as to be conclusory or meaningless.” Ibid.
A case more factually similar to the one before us can be
found in United States v. Schultz, 14 F.3d 1093 (6th Cir.
1994). In Schultz, a police officer arrested an individual for
drug possession, and that individual then informed the officer
that a man named Schultz was his source for drugs. The
officer investigated further and found that some of the
informant’s information was correct. For example, they
traced some phone records (calls to Jamaica) back to an
apartment where Schultz had been parking his car. The
10 United States v. Washington, et al. No. 03-3959
officer also traced the phone number used by the informant to
purchase drugs back to a woman in whose car Schultz had
once received a traffic ticket. The police officer also
discovered that Schultz had a safe deposit box at the bank.
Based largely on the evidence above, the officer sought a
warrant to search the safe deposit box. 14 F.3d at 1096.
In assessing probable cause, this court explained: “In his
affidavit . . . , the only connection [the officer] made was that,
‘Based on his training and experience, [he] believed . . . that
it is not uncommon for the records, etc. of such [drug]
distribution to be maintained in bank safe deposit boxes.’” Id.
at 1097. The court found the affidavit to be insufficient:
“[The officer] did not have anything more than a guess that
contraband or evidence of a crime would be found in the
boxes, and therefore the first warrant should not have been
issued.” Id. at 1097-98.
The court went on, however, to find that the good-faith
exception applied:
[We] cannot say that this warrant was “so lacking [in
indicia of probable cause].” As previously discussed, [the
police officer] certainly had probable cause to believe that
Schultz had committed a crime. Moreover, although we
have held that his “training and experience” were not
sufficient to establish a nexus of probable cause between
that crime and the safe deposit boxes, the connection was
not so remote as to trip on the “so lacking” hurdle.
Id. at 1098.
In this case, even assuming probable cause was not
established, it is clear that the affidavit included enough facts
with respect to the nexus between the criminal activity and
the Crossgate residence to overcome the “so lacking” hurdle.
First, Officer Johnson observed two drug deals involving the
same man who was driving a car registered to a person at
3112 Crossgate Road. Thus, just like the officer in Schultz,

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No. 03-3959 United States v. Washington, et al. 11
Johnson certainly had probable cause to believe that
Washington had committed a crime. Second, Washington
(the then-unidentified dealer) emerged from 3112 Crossgate
immediately prior to conducting the second drug deal on
October 5. Third, Washington had told the unwitting that he
had to wait for a ride so that he could pick up his Cadillac,
which was registered to the Crossgate residence. Fourth, the
same Cadillac used in both drug deals (and which
Washington claimed was his car) was observed at the
Crossgate residence on the mornings of October 8 and 9.
Finally, the affidavit included a reference to an armed robbery
at the Crossgate residence two months earlier, which Johnson
stated (based on four and one-half years in the Narcotics
Bureau) was indicative of suspects searching for narcotics or
cash. These facts might very well be enough to establish
probable cause, although we decline to make that holding. At
the very least, though, the facts listed above clearly satisfy the
“so lacking” standard necessary for Leon’s good-faith
exception to be applied. There was a visible nexus
connecting Washington to the house, Washington to the
Cadillac, and the Cadillac to the house.
Both the district court and the defendants relied on two
cases in which this court declined to apply the good-faith
exception where the officers had obtained a warrant with an
affidavit. United States v. Weaver, 99 F.3d 1372 (6th Cir.
1996) and United States v. Leake, 998 F.2d 1359 (6th Cir.
1993). Both of these cases can be easily distinguished. For
example, in Weaver, the police officer had merely filled in
blanks on a boilerplate affidavit. The officer had also relied
on a single informant without any corroboration of the
informant’s allegations. The court found that the search
warrant could not have been relied on in good faith under
these circumstances. Weaver, 99 F.3d at 1375, 1381 (“We
believe a reasonably prudent officer would have sought
greater corroboration to show probable cause and therefore do
not apply the Leon good-faith exception on the facts of this
case.”). Similarly, in Leake, a police officer relied on an
anonymous informant, who informed the officer that he
12 United States v. Washington, et al. No. 03-3959
smelled marijuana at a residence. 998 F.2d at 1360-61. The
officer spent only two hours on two nights observing the
house, but failed to observe any evidence of wrongdoing. Id.
at 1367. In fact, the only corroboration of the informant’s tip
was that the house matched the informant’s general
description and that it had a basement. Id. at 1361. On the
basis of this information, the officer submitted an affidavit
and obtained a warrant. The court refused to apply Leon. Id.
at 1367 (“The limited information provided by the
anonymous caller, coupled with the brief limited surveillance
by the affiant officer that turned up nothing unusual, was
insufficient. [The officer] knew, or should have known, that
reliance on the search warrant was ill-advised.”). In both
Weaver and Leake, the efforts of the police were far less
extensive than the efforts of Officer Johnson and the
Columbus police, and could hardly be deemed “good-faith”
reliance.
III
Because we find the good-faith exception should have been
applied, we now REVERSE the district court’s granting of the
defendants’ motion to suppress. Because the district court did
not pass on the defendants’ other bases for the motion to
suppress, we decline to consider those arguments at this time.

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No. 03-3959 United States v. Washington, et al. 13
______________
DISSENT
______________
KAREN NELSON MOORE, Circuit Judge, dissenting.
The majority upholds a search when the underlying affidavit
neither connects a searched residence to any illegal activity
nor states that a suspect observed engaging in such illicit
activity away from the residence actually lives at the searched
residence. Because such a warrant is so lacking in probable
cause that no reasonable officer could rely on it in executing
the search, I respectfully dissent.
I would affirm the judgment of the district court. There are
two issues raised by this appeal: whether the warrant was
supported by probable cause, and if not, whether the officers
reasonably relied on the warrant in executing the search.
Believing that both inquiries should be answered in the
negative, I would suppress the evidence uncovered as a
consequence of the illegal search of 3112 Crossgate.
I. THE AFFIDAVIT
In analyzing the legality of the first warranted search and
the reasonableness of the officer’s reliance on the first
warrant, it is helpful to recount the affidavit that Johnson
presented to the issuing judge. Detective Johnson’s affidavit
spoke of an unidentified individual, whom the unwitting
called his “supplier” and who responded when the unwitting
requested to purchase cocaine. Johnson did not actually see
the drug exchange, but on two separate occasions Johnson
“observed verbal and physical interaction between the
unwitting and the male,” Joint Appendix (“J.A.”) at 39
(Johnson Aff. I), who was identified by the unwitting as the
supplier, that was consistent with a drug sale. Also on two
separate occasions, Johnson observed the supplier driving a
Cadillac that was registered to Ebony Brown at 3112
Crossgate. Detectives assisting Johnson watched the supplier
14 United States v. Washington, et al. No. 03-3959
leaving the 3112 Crossgate residence on only one occasion,
and Johnson saw the Cadillac parked in front of the residence
on two consecutive mornings, although he did not see the
supplier on those mornings. The affidavit attested to
Johnson’s belief that “it is very common for narcotics
traffickers to conceal their identity by means of having other
persons register vehicles that they commonly drive and
essentially own.” J.A. at 40. The affidavit also discussed
how a 2002 police report showed that Brown had been robbed
at gunpoint by three individuals who stole a diamond ring and
cash, which led Johnson to the conclusion, based on
Johnson’s “experience and expertise[,] . . . that the robbery
. . . is indicative of suspects searching for narcotics and large
sums of cash.” J.A. at 40. Finally, the affidavit attested to
Johnson’s belief that in his experience, drug traffickers are
likely to keep records and documents of their illicit activities
at their residences. J.A. at 41.
The affidavit is notable for what it lacks. It fails to identify
the name of the supplier or to provide a detailed description
of him. It in no way suggests that any drug trafficking
activity was seen transpiring in or near the residence. The
affidavit does not state or provide any information implying
that the supplier lived or resided at 3112 Crossgate, aside
from Johnson’s statement that the supplier was seen leaving
that location on one lone occasion. Additionally, the affidavit
does not indicate that Johnson performed any research to
determine whether the supplier, or Brown, lived at or owned
3112 Crossgate.
II. PROBABLE CAUSE
Based upon the fundamental principles of the law of
warranted searches, I cannot conclude that probable cause
supported the issuance of the search warrant. The Fourth
Amendment states that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” U.S.
Const. amend. IV. The question is whether “given all the
circumstances set forth in the affidavit . . . there is a fair

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No. 03-3959 United States v. Washington, et al. 15
probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213,
238 (1984). In evaluating the issuing magistrate’s probable
cause determination, we apply a flexible “totality of the
circumstances” approach, which permits us to evaluate the
particular facts of each case. Id. Despite our consideration of
a broad range of circumstances that factor into a magistrate’s
probable cause determination, there are “limits beyond which
a magistrate may not venture in issuing a warrant.” Id. at 239.
“Sufficient information must be presented to the magistrate to
allow that official to determine probable cause; his action
cannot be a mere ratification of the bare conclusions of
others.” Id. Because Johnson’s affidavit did not establish
that Washington owned the 3112 Crossgate residence, which
diminished the likelihood that evidence of drug trafficking
would be found there, I believe the magistrate erred in its
probable cause determination.
Any review of this search must begin with the clear reality
that Johnson’s affidavit did not mention any illicit activity at
the searched residence nor did it present any credible
information (from a confidential informant or an unwitting)
that drug trafficking occurred there. Unlike other cases in
which drug activity was reported near or at a residence, either
by surveilling police or an informant, there was no such
information provided here. Cf. United States v. Martin, 920
F.2d 393, 399 (6th Cir. 1990) (upholding search when
narcotics sale occurred near the residence and a confidential
informant provided information about drug activity occurring
inside the residence); United States v. Pelham, 801 F.2d 875,
878 (6th Cir. 1986) (“When a witness has seen evidence in a
specific location in the immediate past, and is willing to be
named in the affidavit, the ‘totality of the circumstances’
presents a ‘substantial basis’ for conducting a search for that
evidence.”). Johnson’s affidavit stated that he observed the
supplier meet with the unwitting twice in locations away from
the residence, but Johnson never observed drug trafficking
behavior at 3112 Crossgate. The supplier’s actions may have
provided probable cause for an arrest warrant, but the proper
16 United States v. Washington, et al. No. 03-3959
1 In other cases, which contrary to this factual scenario involved
direct observation of illicit activity at a named residence, incomp lete
details about the activity also led us to suppress evidence. See United
States v. Weaver, 99 F.3d 1372 , 1379 (6th Cir. 1998) (holding that even
though a confidential informant provided a tip that drug activity was
occurring at a residence, the affidavit did not attest to any “substantive
determinant of a search warrant is whether evidence is likely
to be found on the premises to be searched. See Zurcher v.
Stanford Daily, 436 U.S. 547, 556 (1978) (“The critical
element in a reasonable search is not that the owner of the
property is suspected of crime but that there is reasonable
cause to believe that the specific ‘things’ to be searched for
and seized are located on the property to which entry is
sought.”).
In prior cases, a paucity of details linking a defendant to the
named residence and to drug activity at that residence has led
us to conclude that probable cause did not support the issued
warrants. In United States v. Helton, 314 F.3d 812 (6th Cir.
2003), we held that probable cause did not exist when there
was no observation of drug activity at a residence and little to
no additional proof connecting the residence to drug
trafficking. The affidavit in Helton attested to three phone
calls a month between the searched residence and known drug
dealers, a description of the residence, and an assertion that
one of the drug dealers stored money with someone other than
the defendant somewhere other than the residence. Id. at 820-
21. After considering other circumstances of “minimal
persuasive value,” we held that there was little to no
probability that the searched residence contained drugs or
drug proceeds. Id. at 823; see also United States v. Savoca,
761 F.2d 292, 295 (6th Cir. 1985) (holding that probable
cause did not support search of a motel room where two
known bank robbers were observed together, even taking into
account the inference that bank robbers tend to conceal
evidence in places like hotel rooms, because there was
nothing linking the motel room to the particular crime, which
had occurred over 2,000 miles away).1 Similar to the facts in

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No. 03-3959 United States v. Washington, et al. 17
independent investigative actions to corrob orate [the] informant’s claims,
such as surveillance o f the . . . residence for undue traffic or a second
controlled purchase m ade with officers viewing”); United States v. Leake,
998 F.2d 135 9, 13 65 (6th Cir. 199 3) (sup pressing evidence when
anonymous tipster reported personal observation of drug trafficking-type
activities at a residence, but the investigating detective did not notice
anything out of the ordinary at the residence during his two-night
surveillance, and the detective’s tracing of vehicles located at the
residence did not increase the probability that drugs would be found at the
residence).
Helton, there was no direct connection between the supposed
illegal drug activity observed by Johnson and 3112 Crossgate;
the gulf between the two is bridged by Johnson’s statement
that it is common for drug traffickers to keep business records
and journals at their residences.
The affidavit’s reliance upon a belief that drug-related
materials may be found in the homes of those who sell drugs
elsewhere in lieu of articulable observations of drug
trafficking behavior at a residence does not per se condemn
the magistrate’s probable cause determination. In the past, we
have held that an observation of drug trafficking away from
a dealer’s residence can provide probable cause to search the
alleged dealer’s residence. United States v. Miggins, 302 F.3d
384, 393-94 (6th Cir. 2002). We have permitted searches of
a trafficker’s residence when the trafficker is observed dealing
drugs elsewhere, despite the attenuated connection between
the trafficking and the residence, because an officer’s
experience that drug dealers often store evidence of their
activities at their residences enhances the probability that
trafficking-related evidence will be discovered. Id.; see also
United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998)
(“[T]he fact that the incidents referred to in the affidavits took
place on the premises [(in the driveway of the residence or in
the defendant’s car)] rather than inside the house does not
invalidate the search of the house.”); United States v.
Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996) (finding
probable cause when affidavit attested to officer’s experience
18 United States v. Washington, et al. No. 03-3959
that “‘many drug traffickers utilize their homes to conduct
their illegal narcotics trafficking activities’”). Nonetheless, in
these types of cases we should be mindful that Gates’s
“totality of the circumstances” test requires us to eschew firm
rules and that evidence may not always be likely to be found
where a dealer resides. See United States v. Allen, 211 F.3d
970, 975 (6th Cir. 2000) (en banc) (“As the Court observed in
Gates, tests and prongs have an unfortunate tendency to
develop a life of their own, and tend to draw more attention
to their individual characteristics than to the totality of the
circumstances.”).
We are presented with an altogether different set of
circumstances when the affidavit in question fails to
demonstrate that the suspect actually owns or lives at the
residence. The link between the suspect and the residence is
the key support for the inference that a residential search is
likely to turn up evidence of illicit drug activity. When that
link is missing, it is an impermissible logical leap to assume
that evidence will be found at a location where the suspect
does not reside. While it makes some logical sense that drug
dealers may maintain records and documents at their homes,
it is less reasonable that traffickers would keep records and
documents in places where they temporarily reside (visiting
a friend’s house or a motel) or where they are temporarily
guests (spending several hours at the home of an
acquaintance). It is notable that there is no comparable
inference in Johnson’s affidavit that drug dealers tend to keep
documents and records of their trafficking at any house where
police happen to see them, nor would such a presupposition
be plausible or supportable absent some direct observation or
knowledge of documents kept at a particular location.
Reviewing the warrant in a “practical, common-sense”
manner, it is clear that there was a dramatic reduction in the
probability that evidence of drug trafficking would have been
found at 3112 Crossgate when the affidavit failed to draw the
critical link between the supplier’s activities outside the
residence and the residence itself. See United States v. Van

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No. 03-3959 United States v. Washington, et al. 19
Shutters, 163 F.3d 331, 337 n.4 (6th Cir. 1998) (noting that
verification that defendant actually lived at the searched
residence “should have been included in the affidavit”).
Johnson’s affidavit stated that his supporting detectives
observed the unnamed supplier leaving the 3112 Crossgate
address on one single occasion, but the affidavit contains no
other information about the supplier’s connection to the
residence. Nor did the affidavit claim that Brown resided at
3112 Crossgate. At the time he produced the affidavit,
Johnson did not know, and consequently did not and could
not inform the court, whether the supplier lived at the
residence, was an occasional houseguest, or just visited 3112
Crossgate on the morning he was observed leaving the house.
Unlike the affidavits in other cases in which officers have
clearly established that a defendant owned the residence to be
searched, Johnson’s affidavit did not reflect any research into
mortgage or phone records, or any other potential proof that
Washington lived or resided at 3112 Crossgate. See Miggins,
302 F.3d at 388 (affidavit drew link between defendants and
searched residence, even though no drug trafficking activity
occurred at the residence); United States v. Watkins, 179 F.3d
489, 493 (6th Cir. 1999) (affidavit clearly established that
residence was owned by defendant); Caicedo, 85 F.3d at 1193
(affidavit noted that defendant had lied about his address and
the affidavit claimed that defendant’s concealment of his true
address could indicate that additional evidence would be
found at his actual residence); United States v. Schultz, 14
F.3d 1093, 1097 (6th Cir. 1994) (upholding search when there
were clear links between defendant and searched apartment;
the affidavit attested to the fact that the defendant resided in
the apartment, and automobiles registered to the defendant
were parked at the searched apartment complex); United
States v. Davidson, 936 F.2d 856, 857-58, 859-60 (6th Cir.
1991) (affidavit attesting to a widespread and thoroughly
documented pattern of drug trafficking activity clearly
identified that the suspect lived at the searched residence).
Furthermore, unlike many of our other decisions in this area,
Johnson’s affidavit failed even to identify the name of the
20 United States v. Washington, et al. No. 03-3959
individual who was presumed to live at 3112 Crossgate. Not
every affidavit and warrant must identify the suspect or name
the suspect as the owner of the searched property, but when
the only evidence making it probable that illicit materials will
be found at a particular residence is the assumption that drug
dealers tend to keep drugs, money, guns, and records at their
homes, it seems clear that there should be evidence that the
trafficker actually owns or resides at the property to be
searched. Cf. United States v. Pinson, 321 F.3d 558, 564-65
(6th Cir. 2003) (holding that an affidavit does not need to
name a dealer or the owner of searched property, but only
when a confidential informant actually purchased drugs and
witnessed drug trafficking at the searched residence).
Johnson’s other ruminations in the affidavit about the
supplier’s connection to the residence and Brown’s
connections to the supplier’s alleged drug trafficking
constitute little more than speculation and fail to sustain the
legality of the search. Johnson’s observations of the Cadillac
outside 3112 Crossgate on two separate mornings did not at
all establish that the supplier resided at that address. Nor does
Johnson’s suggestion that the supplier registered the Cadillac
in Brown’s name to conceal his identity successfully show
that the supplier lived at 3112 Crossgate. Furthermore,
Johnson’s statement that the theft of a diamond ring and cash
from Brown “is indicative of suspects searching for narcotics
and large sums of cash,” J.A. at 40, is little more than
guesswork because the robbery may have occurred for myriad
reasons. This speculation is also irrelevant; the robbery
incident does nothing to establish that the supplier lived or
resided at 3112 Crossgate.
Considering the “totality of the circumstances” — the
dearth of observed drug trafficking activity at 3112 Crossgate,
the failure of the affidavit to prove that the supplier resided at
3112 Crossgate, the failure of the affidavit to identify the
supplier, and the lack of any additional evidence
demonstrating a probability that drug evidence would be
found at the residence — Johnson’s affidavit failed to

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No. 03-3959 United States v. Washington, et al. 21
establish a fair probability that documents relating to drug
trafficking would be discovered at the 3112 Crossgate
residence. Therefore, the warrant was not supported by
probable cause, and the search cannot be justified on that
basis.
III. THE LEON GOOD-FAITH EXCEPTION
The majority errs by concluding that the good-faith
exception established in United States v. Leon, 468 U.S. 897
(1984), insulates the search from reproach. Leon articulated
the principle that the exclusionary rule does not operate “to
bar admission of evidence seized in reasonable, good-faith
reliance on a search warrant that is subsequently held to be
defective.” Van Shutters, 163 F.3d at 337 (quotations
omitted). However, Leon will not apply when “it is clear that
. . . the officer will have no reasonable grounds for believing
that the warrant was properly issued.” Leon, 468 U.S. at 922-
23. The relevant exception to the Leon rule provides that “an
officer [would not] manifest objective good faith in relying on
a warrant based on an affidavit so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable.” Id. at 923 (emphasis added). Thus,
the inquiry is whether Johnson’s affidavit was so deficient in
establishing probable cause to search 3112 Crossgate that “a
reasonably well trained officer would have known that the
search was illegal despite the magistrate’s authorization.” Id.
n.23.
The application of Leon to this precise factual situation —
where no criminal activity is observed at the searched
residence and the affidavit fails: 1) to identify the suspect;
and 2) to demonstrate that the suspect lives at the place to be
searched — is a novel question for this circuit. In different
factual circumstances, we have held that an officer’s reliance
on a warrant was objectively unreasonable when the warrant
failed to make a sufficient connection between a suspect, the
suspect’s illegal actions, the objects to be seized, and the
place to be searched. See Helton, 314 F.3d at 825 (“A
22 United States v. Washington, et al. No. 03-3959
reasonable officer knows that evidence of three calls a month
to known drug dealers from a house, a description of that
house, and an allegation that a drug dealer stores drug
proceeds with his brother and his brother's girlfriend (neither
of whom live at or are known to visit that house), falls well
short of establishing probable cause that the house contains
evidence of a crime.”); United States v. Weaver, 99 F.3d
1372, 1381 (6th Cir. 1998) (holding that “a reasonably
prudent officer would have sought greater corroboration to
show probable cause” when the affidavit did not indicate a
fair probability that a suspect was growing marijuana at a
particular residence); United States v. Leake, 998 F.2d 1359,
1367 (6th Cir. 1993) (rejecting application of Leon because “a
two-night, two-hour surveillance simply produced no
significant corroboration of the information’s claim of
marijuana trafficking”).
The government unpersuasively suggests that several of our
cases mandate an outcome in its favor because those cases
apply the good-faith exception “despite the lack of any nexus
between the criminal activity and the place to be searched.”
Gov’t Br. at 34 (citing Van Shutters, 163 F.3d at 337-38;
Schultz, 14 F.3d at 1098; Savoca, 761 F.2d at 298). The
government’s misreading of these cases explains its
overstatement; in the cited cases, an identified suspect and a
strong and demonstrable connection between the suspect and
the place to be searched served as the nexus between the
criminal activity and the search location. For example, in Van
Shutters, the affiant had personal knowledge of the suspect’s
criminal enterprises, the affidavit implied that the affiant had
observed the suspect in the searched residence or otherwise
determined that the suspect frequented the residence, and a
search of a different residence owned by the suspect turned up
incriminating evidence. Van Shutters, 163 F.3d at 334, 337.
We ruled that Leon preserved the fruits of the search. In
Schultz, an officer sought a warrant to search a safe-deposit
box based upon the intuition that documents and records of
drug distribution are often kept in such boxes. Schultz, 14
F.3d at 1097. We held that despite the lack of a nexus

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No. 03-3959 United States v. Washington, et al. 23
between the crime and the safe-deposit boxes, the connection
was not so remote as to make Leon inapplicable. Id. at 1098.
In Schultz, however, there was a proven nexus between the
suspect and the safe-deposit box, a connection missing here.
See also Savoca, 761 F.2d at 298 (holding that affidavit was
not “so lacking in indicia of probable cause” when two known
bank robbers were observed staying at the motel room that
was searched). By contrast, Johnson’s affidavit does not
show in any meaningful fashion that the supplier was
connected to 3112 Crossgate in a way that would increase the
probability that documentary evidence would be discovered
there.
The majority’s belief that the result here is dictated by
United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en
banc) is no less misplaced. In Carpenter, a majority of the en
banc court upheld a search under Leon when an affidavit
stated merely that marijuana was observed near a residence
belonging to the defendants and that a road connected the
residence to the marijuana. Id. at 593. The Carpenter
majority discussed the applicability of Leon in cases when
“the affidavit contained a minimally sufficient nexus between
the illegal activity and the place to be searched to support an
officer’s good-faith belief in the warrant’s validity.” Id. at
596. The court concluded that the officers acted reasonably
in searching the Carpenters’ residence for evidence of
marijuana cultivation. Id.
I continue to believe that Carpenter was wrongly decided,
id. at 601-04 (Moore, J., dissenting), but it is the law in this
circuit. Nonetheless, its holding does not guide this outcome
because of the differences between the two cases. The
“minimally sufficient” nexus of physical proximity between
the drugs and the residence that was the focal point in
Carpenter is not evident in this case. The majority in
Carpenter felt that an observation of marijuana growing
“near” the residence (about 900 feet away), as opposed to
“in,” “abutting,” or “within the curtilage of” the residence,
justified the officers’ reasonable reliance upon the warrant
24 United States v. Washington, et al. No. 03-3959
even though the proximity of the marijuana was too remote to
give probable cause to search. By contrast, Johnson did not
observe drug activity anywhere near 3112 Crossgate; the
purported trafficking occurred several miles from the home.
As a result, Johnson, unlike the officer in Carpenter, could
not rely on the propinquity of the drugs to the residence as an
indicator that drugs were likely to be discovered at the home.
Instead, Johnson had to rely on the extremely tenuous link
between the supplier and the residence and the presumption
that a trafficker will keep drug-related materials at their
residence. Relatedly, the warrant in Carpenter strongly
implied that the defendants owned the residence, but it did not
need to because the observation of the marijuana plants
“near” the residence provided the requisite nexus that made
belief in the warrant’s validity reasonable. Dissimilarly,
Johnson’s warrant made no mention of the supplier’s
connection to 3112 Crossgate, but such a connection was
absolutely necessary given that the supplier, as opposed to
some observation of physical proximity, served as the
primary link to the residence.
Any reasonable officer would have known that probable
cause did not support the warrant because the affidavit’s
discussion of only a sparse and speculative connection
between the supplier and 3112 Crossgate highlighted its clear
deficiencies. As justification for the document search,
Johnson relied on his intuition and experience that those
involved in trafficking often keep records of their illegal
activities where they live. Yet, the affidavit did not identify
the supplier or attempt to show that the supplier resided at the
3112 Crossgate, both of which constitute fatal omissions.
Any reasonable officer would have known that it is illegal to
search a residence when it is not clear that the suspect lives or
resides there or conducts illegal drug activity there, because
there is not a high probability that the desired evidence will
be uncovered at that location. A reasonable officer would
have realized that, without more surveillance or research, he
or she could not determine whether the supplier owned the
residence at 3112 Crossgate, was an occasional houseguest,

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No. 03-3959 United States v. Washington, et al. 25
or simply stayed at 3112 Crossgate the one time he was
observed leaving the house. Under such circumstances, a
reasonable officer would recognize the diminished probability
of finding documentary evidence at 3112 Crossgate.
Two additional facts reinforce the unreasonableness of
Johnson’s reliance upon the warrant. First, Johnson’s
affidavit stated that he had agreed to make a controlled buy of
a kilogram of cocaine, which he suspected would be provided
by the supplier. Johnson submitted the first affidavit and
obtained the first warrant before the buy occurred, and the
abandonment of the controlled buy suggests that the officers
acted with unnecessary haste when more investigation could
have been conducted. Second, it is impossible to ignore the
ease with which Johnson could have uncovered the supplier’s
connection to 3112 Crossgate. A simple public records
inquiry, further research into the name on the utilities
accounts registered at the address, or additional surveillance
would have provided clear evidence of whether the supplier
actually lived at 3112 Crossgate. The relative prolixity of the
affadavit (4 pages, single-spaced) does not remedy its failure
to provide easily acquired and vital information linking the
supplier to the residence. See, e.g., Helton, 314 F.3d at 816,
824 (showing that length of affidavit is not dispositive by
rejecting application of Leon even though affidavit was
twenty-seven pages long). It was unreasonable for Johnson
to rely on an affidavit lacking this critical information.
IV. CONCLUSION
In sum, I dissent because the majority’s holding further
erodes the fundamental protections against unreasonable
governmental intrusions promised by the warrant provisions
of the Fourth Amendment. By declaring that the officers
relied reasonably on the warrant when the underlying
affidavit drew no connection between the illegal activity and
the place to be searched or between the suspect and the place
to be searched, the majority vitiates the prophylaxis of the
search warrant requirement. In the triangulation between
26 United States v. Washington, et al. No. 03-3959
trafficking activity, a suspect, and a place to be searched, we
have previously permitted searches even though all three
points cannot be connected, but the majority unfortunately
and unnecessarily debilitates the Fourth Amendment by
validating a search in which neither the trafficking activity
nor the suspect are tied to the location to be searched.

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