United States of America v. LONNIE D. CARPENTER (01-5368) and SHEILA J. CARPENTER (01-5370)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0072P (6th Cir.)
File Name: 04a0072p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee/
Cross-Appellant,
v.
LONNIE D. CARPENTER
(01-5368) and SHEILA J.
CARPENTER (01-5370),
Defendants-Appellants/
Cross-Appellees.
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Nos. 01-5368/
5370/5446
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 99-00045—Thomas G. Hull, District Judge.
Argued and Submitted: June 11, 2003
Decided and Filed: March 9, 2004
Before: BOGGS, Chief Judge; MARTIN, SILER,
BATCHELDER, DAUGHTREY, MOORE, COLE,
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and
COOK, Circuit Judges.
2 United States v.
Carpenter, et al.
Nos. 01-5368/5370/5446
_________________
COUNSEL
ARGUED: Nikki C. Pierce, FEDERAL DEFENDER
SERVICES OF EASTERN TENNESSEE, Greeneville,
Tennessee, for Appellants. Michael E. Winck, ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, for
Appellee. ON BRIEF: Nikki C. Pierce, FEDERAL
DEFENDER SERVICES OF EASTERN TENNESSEE,
Greeneville, Tennessee, for Appellants. Michael E. Winck,
ASSISTANT UNITED STATES ATTORNEY, Knoxville,
Tennessee, for Appellee. Lonnie D. Carpenter, Rogersville,
Tennessee, pro se.
_________________
OPINION
_________________
SILER, J., delivered the opinion of the court, in which
BOGGS, C. J., BATCHELDER, GIBBONS, ROGERS,
SUTTON, and COOK, JJ., joined. GILMAN, J. (pp. 12-17),
delivered a separate concurring opinion. MOORE, J. (pp. 18-
23), delivered a separate dissenting opinion, in which
MARTIN, DAUGHTREY, COLE, and CLAY, JJ., joined,
with MARTIN, J. (p. 24), also delivering a separate
dissenting opinion.
SILER, Circuit Judge. Defendants Lonnie D. and Sheila J.
Carpenter were convicted of manufacturing marijuana. One
of the issues that they raised on appeal was a claim that the
district court erred in failing to suppress the evidence of their
illegal activity. The government cross-appealed the district
court’s ruling that limited the amount of the Carpenters’ land
subject to forfeiture. A divided panel of this court affirmed
in part, vacated in part, and remanded the case for further

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proceedings. United States v. Carpenter, 317 F.3d 618 (6th
Cir. 2003).
Rehearing en banc was subsequently granted in order to
consider a question regarding the application of United States
v. Leon, 468 U.S. 897, 922 (1984), that is, whether a search
conducted pursuant to an invalid warrant may be saved under
the “good-faith exception” on the basis that the officers had
other information that was not presented to the issuing
magistrate, but that would have established probable cause.
We need not reach that question because we conclude that the
police officers’ reliance on the deficient warrant was
reasonable because the information that was presented to the
issuing judge was sufficient to support a good-faith belief in
the warrant’s validity. We therefore REINSTATE the
judgment of the panel in this case, and adopt the panel
opinion except for its discussion of the Leon good-faith
exception, and REMAND the case to the district court for
further proceedings.
I. BACKGROUND
A. Factual background
In June 1999, Police Lieutenant Robert Crumley was
conducting helicopter surveillance over Hawkins County,
Tennessee. He spotted patches of marijuana growing in fields
approximately 900 feet away from a residence belonging to
the Carpenters. In addition, he observed beaten paths leading
from the back door of the residence to the marijuana patches
and saw two men, who turned out to be Lonnie Carpenter and
his son, walking from the patches toward the residence.
Crumley relayed this information to a team of police officers
on the ground.
Captain Ronnie Lawson, a member of the ground team,
sought a warrant to search the residence. A state judge,
satisfied that Lawson’s affidavit established probable cause,
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issued the requested search warrant. The affidavit, which the
warrant incorporated, described the location of the Carpenter
residence and then set forth the following reasons (in exactly
the syntax shown) why Lawson believed that evidence of
criminal conduct would be found in the residence:
On June 23, 1999 at approx 12:30 pm, Helicopter Pilot
Lt Bob Crumley was conducting an aerial search of
Hawkins Co when he was flying over the above
described property he saw numerous Marijuana Plants
growing. Near the residence.
Upon information I received from Lt Crumley, there is a
road connecting the above described residence to the
Marijuana Plants. Having personal knowledge that Lt.
Crumley is certified in the identification of Marijuana I
feel there is probable cause to search the said residence
and property and seize any illegal contraband found.
Armed with this warrant, police officers searched the
Carpenters’ residence. They seized marijuana, marijuana
seeds, and other items associated with marijuana
manufacturing.
B. Procedural background
In July 1999, the Carpenters were indicted for
manufacturing marijuana and with employing a minor to
assist them, in violation of 21 U.S.C. §§ 841 and 861,
respectively. The indictment also sought the forfeiture of the
Carpenters’ real property, a 100-acre farm, on the basis that
it had been “used, or intended to be used, in any manner or
part, to commit, or to facilitate the commission of” marijuana
manufacturing. 21 U.S.C. § 853(a)(2).
The district court subsequently denied the Carpenters’
motions to suppress the evidence seized during the search of
their residence. The Carpenters were eventually acquitted on
the charge that they employed a minor to manufacture

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marijuana, but were found guilty of manufacturing marijuana.
The jury also concluded that the Carpenters’ property had
been used to commit the crime, thereby triggering a forfeiture
of the property.
II. ANALYSIS
A. The motions to suppress
1. Standard of review
In reviewing the denial of a motion to suppress, we defer to
the district court’s factual findings unless they are clearly
erroneous. Legal conclusions, however, are reviewed de
novo. United States v. Bartholomew, 310 F.3d 912, 919 (6th
Cir. 2002), cert. denied, 537 U.S. 1177 (2003).
2. Whether the affidavit provided a substantial basis for
the determination of probable cause
The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation.” U.S. Const. amend. IV. In determining whether
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.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal
quotation marks and alterations omitted).
6 United States v.
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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.” United States
v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998).
Lawson’s affidavit did not provide a substantial basis for the
issuing judge’s conclusion that probable cause existed to
search the Carpenters’ residence, because it failed to set forth
sufficient facts that incriminating evidence would be found
there, rather than in some other place.
The facts that marijuana was growing “near” the residence
and that a road ran nearby fall short of establishing the
required nexus between the Carpenters’ residence and
evidence of marijuana manufacturing. If Lawson’s affidavit
had stated that beaten paths led from the marijuana patches to
the door of the residence, and that two men had been spotted
walking from the marijuana patches to the residence, the
affidavit would likely have been sufficient to establish
probable cause. See United States v. Robins, 978 F.2d 881,
892 (5th Cir. 1992) (holding that where a police detective has
ascertained that a particular person, Robins, was a marijuana
dealer, “[t]here was undoubtedly an adequate nexus, between
Robins’ residence and Detective Soule’s allegations to the
Magistrate Judge about Robins’ marijuana operation, to
support the search warrant for the marijuana and related
records [that] Detective Soule’s experience and common
sense told him would likely be at Robins’ residence”); United
States v. Malin, 908 F.2d 163, 166 (7th Cir. 1990) (holding
that a police officer’s “observation of marijuana growing in
Malin’s [fenced] yard reasonably yielded the conclusion that
marijuana or other evidence of marijuana possession would
be found in Malin’s house”).
These additional facts, however, were not included in the
affidavit. The facts in the affidavit that did connect the
marijuana patches and the residence were too vague,
generalized, and insubstantial to establish probable cause.

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We therefore conclude that the state judge lacked a substantial
basis to determine that probable cause existed to search the
Carpenters’ residence. The government, indeed, concedes
this point. Because the search of the Carpenters’ residence
violated the Fourth Amendment, we are left with the question
of whether the evidence seized should be suppressed.
3. The good-faith exception to the exclusionary rule
“When evidence is obtained in violation of the Fourth
Amendment, the judicially developed exclusionary rule
usually precludes its use in a criminal proceeding against the
victim of the illegal search and seizure.” Illinois v. Krull, 480
U.S. 340, 347 (1987). Courts should not, however, suppress
“evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant.” United States v.
Leon, 468 U.S. 897, 922 (1984). But this good-faith
exception to the exclusionary rule does not apply in
circumstances where “the officer will have no reasonable
grounds for believing that the warrant was properly issued.”
Id. at 923. Thus, 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. (quotation
omitted).
a. Whether the officers had a reasonable basis to
believe that the information actually submitted
supported the issuance of the search warrant
Pursuant to Leon, we must now decide whether the officers
in the instant case had a reasonable basis to believe that the
information that was submitted supported the issuance of the
search warrant. In considering this question, we agree with
the following analysis by the Fourth Circuit:
If a lack of a substantial basis also prevented application
of the Leon objective good faith exception, the exception
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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.
United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)
(citation omitted).
The affidavit in the case before us failed to provide a
substantial basis for probable cause because it did not provide
the required nexus between the residence and the illegal
activity. However, the affidavit was not completely devoid of
any nexus between the residence and the marijuana that the
police observed. Rather, it noted both that the marijuana was
growing “near” the residence and that “there is a road
connecting” the residence and the marijuana plants.
We 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 was not enough to
establish probable cause. See United States v. Van Shutters,
163 F.3d 331, 336 (6th Cir. 1998) (upholding a search where
the affidavit underlying the warrant described the residence,
the items sought, and the defendant’s counterfeiting scheme,
but connected the place to the illegal activity only by stating
that the residence “was available” to the defendant); United
States v. Shultz, 14 F.3d 1093, 1098 (6th Cir. 1994)
(upholding a search of safe deposit boxes at a bank where the
affidavit underlying the warrant connected the boxes and the
defendant’s trafficking in illegal drugs only by stating that the
officer’s training and experience led him to believe that
evidence would be located there).

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A useful contrast is provided by United States v. Hove, 848
F.2d 137 (9th Cir. 1988). In Hove, the police officer had
obtained a warrant to search a particular residence after
submitting to the issuing magistrate an affidavit that failed to
provide any nexus between the residence and illegal activity.
Id. at 139-40 (“[T]he final warrant application, while it set
forth facts suggesting that Kimberly Hove had sent
threatening letters, never linked Kimberly Hove or any
suspected criminal activity in any way with the 2727 DeAnza
residence.”). The Ninth Circuit held that no reasonable
officer could have believed that the warrant was valid, given
the failure of the affidavit to articulate any nexus between the
illegal activity and the place to be searched.
In the present case, however, the affidavit was not totally
lacking in facts connecting the residence to the marijuana
patches. These facts, as we explained above, were too vague
to provide a substantial basis for the determination of
probable cause. But these facts (unlike Hove) were not so
vague as to be conclusory or meaningless. See United States
v. Williams, 3 F.3d 69, 74 (3d Cir. 1993) (“This is not a case
in which the affidavit contained mere conclusory assertions
or a single piece of evidence which the law of the
stationhouse shop would recognize as clearly insufficient.”).
We therefore conclude that reasonable officers could have
believed that the affidavit as submitted, even without the
additional relevant information known to the officers, was
sufficient to support the issuance of the warrant.
At oral argument, the Carpenters contended that Lawson’s
omission from his affidavit of the additional information
known to the police (concerning the beaten paths and the two
men walking from the marijuana patches to the residence)
militated against the conclusion that they executed the
warrant in good-faith reliance on its reasonableness. We
disagree. Extrapolating from Franks v. Delaware, 438 U.S.
154 (1978), this court has recognized that “material omissions
[from an affidavit] are not immune from inquiry under
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Franks.” United States v. Atkin, 107 F.3d 1213, 1216-17 (6th
Cir. 1997) (discussing Franks’s holding that a defendant is
entitled to an evidentiary hearing on the veracity of the
affidavit if (1) he or she can make a preliminary showing that
portions of the affidavit are deliberately or recklessly false,
and (2) after setting aside the false information, the remaining
parts of the affidavit would not support a finding of probable
cause). But to be constitutionally problematic, the material
must have been deliberately or recklessly omitted and must
have undermined the showing of probable cause. See id. (“If
the defendant does succeed in making a preliminary showing
that the government affiant engaged in ‘deliberate falsehood’
or ‘reckless disregard for the truth’ in omitting information
from the affidavit, the court must then consider the affidavit
including the omitted portions and determine whether
probable cause still exists.”). The Carpenters have made no
showing that Lawson omitted facts from his affidavit
deliberately or recklessly. Moreover, the omitted facts would
have bolstered the affidavit’s showing of probable cause, not
undermined it.
The fact that a police officer had such additional knowledge
certainly raises the inference that the officer should have
recognized that a stronger showing of probable cause could
have been made to the issuing magistrate. But such
recognition says nothing about the reasonableness of the
belief that the information that was presented was sufficient.
To the extent that the Carpenters are continuing to argue
that the factual assertions that were in the affidavit were both
false and recklessly included (a traditional Franks challenge),
the district court found after a hearing that the affidavit was
reasonably accurate and that no evidence supported the
proposition that any inaccuracy was deliberately or recklessly
included. These findings were not clearly erroneous.

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b. Whether the fact that the officers had other
information that was not presented to the issuing
magistrate, but that would have established probable
cause, is relevant to the good-faith analysis
Since we have concluded that the police officers’ reliance
on the deficient warrant was reasonable based on the
information that actually was submitted to the issuing judge,
we leave for another day the question of whether the search
could have been saved under the “good-faith exception” on
the basis that the officers had other information that was not
presented to the issuing magistrate, but that would have
established probable cause. See, e.g., United States v.
Marion, 238 F.3d 965, 969 (8th Cir. 2001).
B. Other issues
Rule 35 of the Rules of the Sixth Circuit provides that
“[t]he effect of the granting of a rehearing en banc shall be to
vacate the previous opinion and judgment of this Court.” All
of the issues raised by the Carpenters on appeal are thus
before us. In our opinion, however, the reasoning of the prior
panel was correct on all issues other than its analysis of the
motions to suppress. We therefore reinstate and reaffirm the
judgment in United States v. Carpenter, 317 F.3d 618 (6th
Cir. 2003), and adopt its opinion except for its discussion of
the Leon good-faith exception. See Donahey v. Bogle, 129
F.3d 838, 844 (6th Cir. 1997) (en banc) (reinstating the prior
panel opinion on all issues not otherwise discussed by the en
banc court), vacated on other grounds, 524 U.S. 924 (1998).
III. CONCLUSION
For all of the reasons set forth above, we REINSTATE the
judgment of the panel in this case, albeit with different
reasoning, and REMAND the case to the district court for
further proceedings.
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___________________
CONCURRENCE
___________________
RONALD LEE GILMAN, Circuit Judge, concurring. I
concur in the conclusion reached by the majority opinion and
in most of its reasoning. But I respectfully disagree with its
decision to defer to another day the issue of whether a court
should consider the additional information known to the
officers but not communicated to the magistrate in deciding
if the Leon good-faith exception has been satisfied. The
government persuaded the district court that the consideration
of such additional information was appropriate. In addition,
the issue has been fully briefed and argued on appeal and is
discussed in the dissenting opinion. Deciding the issue is
therefore appropriate in order to provide guidance to the
district courts within our circuit and to future panels of this
court. See Webster v. Reproductive Health Servs., 492 U.S.
490, 532-35 (1989) (Scalia, J., concurring in part and
concurring in the judgment) (discussing numerous cases
where the Supreme Court has departed from the general
principle of deciding cases on the narrowest possible
constitutional grounds).
As part of its argument, the government contends that the
good-faith exception to the exclusionary rule should apply in
this case because the police officers knew additional facts that
were not included in Captain Lawson’s affidavit, but that,
when added to the information contained in the affidavit,
would have established probable cause. Specifically, the
police (1) knew that beaten paths led from the back door of
the residence to the marijuana patches, and (2) had seen two
men walking from the patches to the residence. I am of the
opinion that any consideration of this additional information
would be contrary to controlling Supreme Court precedent.

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The Fourth Amendment prohibits police officers, absent
certain exceptions not applicable here, from conducting
searches of a residence without a properly issued warrant.
Agnello v. United States, 269 U.S. 20, 33 (1925) (“Belief,
however well founded, that an article sought is concealed in
a dwelling house furnishes no justification for a search of that
place without a warrant.”). An officer’s correct belief in the
existence of probable cause does not obviate the warrant
requirement. Id. (“And such searches are held unlawful
notwithstanding facts unquestionably showing probable
cause.”).
According to the Supreme Court in Leon, evidence
obtained through a search pursuant to a deficient warrant must
be suppressed, unless the police officer acted “in objectively
reasonable reliance on a subsequently invalidated search
warrant.” 468 U.S. at 922. Information tending to show the
existence of probable cause that was not disclosed to the
issuing magistrate cannot logically have any bearing on the
reasonableness of the presenting officer’s belief that the
warrant was properly issued, as opposed to the officer’s
reasonable belief that probable cause existed for the search.
The straightforward reason for this conclusion is that no
magistrate can base his or her determination of the existence
of probable cause upon information never received.
Leon and Agnello make clear that the relevant question is
whether the officer reasonably believed that the warrant was
properly issued, not whether probable cause existed in fact.
See United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)
(“The Leon test for good faith reliance is clearly an objective
one and it is based solely on facts presented to the magistrate.
An obviously deficient affidavit cannot be cured by an
officer’s later testimony on his subjective intentions or
knowledge.”) (citation omitted); United States v. Bynum, 293
F.3d 192, 212 (4th Cir. 2002) (Michael, J., dissenting) (“Leon
requires that the officer be able to entertain a reasonable belief
that the magistrate had a substantial basis for finding probable
14 United States v.
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Nos. 01-5368/5370/5446
cause. . . . [W]hat the officer knew but did not tell the
magistrate is irrelevant.”).
The government argues that Leon itself described situations
in which a reviewing court would need to look to facts
beyond the affidavit in order to ascertain whether the officers
could have reasonably relied on a deficient warrant. I do not
quarrel with this argument. But nothing in Leon suggests the
illogical position that information supporting probable cause
that is known to the officers but not to the issuing magistrate
could make the officers’ reliance on the deficient warrant
reasonable. Instead, Leon describes several specific situations
where the relevant extra-affidavit facts are ones other than
pertinent, truthful information known to the officers but not
communicated to the magistrate. 468 U.S. at 923.
Suppression is appropriate, for example, “in cases where the
issuing magistrate wholly abandoned his judicial role,”
because the Fourth Amendment requires a magistrate to be
neutral and detached and to make his or her own
determination of probable cause. Id. “[N]o reasonably well
trained officer should rely on the warrant” where the officer
knows that it was not validly issued. Id. Similarly, the Leon
Court instructed:
[O]ur good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained
officer would have known that the search was illegal
despite the magistrate’s authorization. In making this
determination, all of the circumstances—including
whether the warrant application had previously been
rejected by a different magistrate—may be considered.
Id. at 922 n.23.
This passage from Leon points out the need to consider the
circumstances where extra-affidavit information might be
relevant to an officer’s good-faith reliance on the warrant’s
validity. For example, if an officer takes an affidavit to nine

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magistrates, all of whom decide that it does not establish
probable cause, and the officer subsequently relies on a later-
invalidated warrant issued by a tenth magistrate presented
with the same affidavit, the fact that nine magistrates had
decided against issuing a warrant raises an inference that the
officer’s reliance on the warrant was not objectively
reasonable. A contrasting situation is found in the case before
us, where the officer knew of facts that would have
established probable cause, but omitted those facts from his
affidavit and then relied on the warrant issued by a judge who
did not know those additional facts. Knowing additional facts
that would establish probable cause, but that were not
presented to the issuing magistrate, does not establish that the
officer reasonably believed that the warrant was properly
issued. In the first situation, extra-affidavit facts are relevant
to the pertinent question of whether the officer reasonably
believed that the warrant was valid. But the extra-affidavit
facts in the second situation have no bearing on the question.
The government also cites the Eleventh Circuit’s decision
in United States v. Martin, 297 F.3d 1308 (11th Cir.), cert.
denied, 123 S. Ct. 667 (2002), in support of its proposed rule.
In Martin, the Eleventh Circuit concluded that although the
affidavit did not establish probable cause, it “contained
sufficient indicia of probable cause to enable a reasonable
officer to execute the warrant thinking it valid.” Id. at 1315.
Because no other exception to Leon applied (e.g., the
magistrate had not abandoned his judicial role), this
conclusion should have ended the Eleventh Circuit’s inquiry.
The Martin court then proceeded, however, to redundantly
“make an inquiry as to whether [the police officer] reasonably
relied upon the search warrant.” Id. at 1318. In answering
this question, the Eleventh Circuit decided that it was
permitted to consider additional facts supporting probable
cause that the police officer had known but had not disclosed
to the issuing magistrate. The court concluded: “Under the
totality of the circumstances, taking into account the facts
16 United States v.
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Nos. 01-5368/5370/5446
known to [the police officer] at the time he applied for the
search warrant, we find that [the police officer] reasonably
believed that probable cause existed to execute a search
warrant.” Id. at 1320. I find this portion of the opinion in
Martin perplexing, because the relevant question under Leon
is whether the officer reasonably believed that the warrant
was valid, not whether probable cause existed. Perhaps this
part of Martin can be chalked up to dicta. But even if this
characterization is incorrect, this court is of course not bound
by the holdings of our sister circuits. Nixon v. Kent County,
76 F.3d 1381, 1388 (6th Cir. 1996) (en banc).
The government also recites the comment in Martin that
“[t]he exclusionary rule is meant to guard against police
officers who purposely leave critical facts out of search
warrant affidavits because these facts would not support a
finding of probable cause.” 297 F.3d at 1320. I agree with
this statement, but find it underinclusive. The Supreme Court
stated in Leon that “the exclusionary rule . . . operates as a
judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect.” 468
U.S. at 906 (internal quotation marks omitted) (emphasis
added). Although an officer’s intentional omission of
unsupportive facts from a search warrant application may
well violate the Fourth Amendment, it is by no means the
only way to violate the Amendment. See, e.g., id. at 922-24
(listing multiple examples of Fourth Amendment violations).
The Martin court’s statement of the exclusionary rule’s
purpose is therefore underinclusive and does not justify the
government’s position.
One other conceivable source of authority for the
consideration of the undisclosed information, which this court
relied upon in the unpublished decision of United States v.
Leaster, No. 00-6501, 2002 WL 1147343, at *8 (6th Cir.
May 28, 2002), is Anderson v. Creighton, 483 U.S. 635, 641
(1987). Although the Supreme Court did indeed state in
Anderson that “whether it was objectively legally reasonable

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to conclude that a given search was supported by probable
cause or exigent circumstances will often require examination
of the information possessed by the searching officials,” id. at
641, this statement was made in the context of deciding
whether qualified immunity protected an officer conducting
a warrantless search that was undertaken because of exigent
circumstances. Given that no warrant is required for a search
undertaken with both probable cause and exigent
circumstances, I believe that Anderson provides no support
for the rule proposed by the government. Leaster failed to
make this key distinction and is thus unpersuasive.
The Eighth Circuit also relied on Anderson to justify its
adoption of the rule proposed by the government. See United
States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987). It did so
without acknowledging the significance of the “exigent
circumstances” exception to the warrant requirement, an
exception not present in the case before us. Subsequent
Eighth Circuit cases have simply followed Martin without
any further analysis. See, e.g., United States v. Johnson, 78
F.3d 1258, 1263 (8th Cir. 1996); United States v. Simpkins,
914 F.2d 1054, 1057 (8th Cir. 1990). I therefore find the
Eighth Circuit cases equally unpersuasive.
No compelling authority, in sum, stands for the proposition
that a search conducted pursuant to an invalid warrant can be
saved under Leon’s good-faith exception on the basis that the
officers had other information that was not presented to the
issuing magistrate, but that would have established probable
cause. This proposition is contrary to Leon and, in my
opinion, the court should so declare in the case before us.
18 United States v.
Carpenter, et al.
Nos. 01-5368/5370/5446
____________
DISSENT
____________
KAREN NELSON MOORE, Circuit Judge, dissenting. I
respectfully dissent because the officers’ reliance upon the
warrant was not reasonable given the exiguous information
presented to the issuing judge, and thus the Leon good-faith
exception does not apply to this case. See United States v.
Leon, 468 U.S. 897 (1984).
Consequently, I believe that we must reach the issue, buried
in the sand by the majority, of whether an officer can
reasonably rely on a warrant when the officer possesses
information that could establish probable cause but does not
communicate that information to the magistrate. I
wholeheartedly agree with Judge Gilman’s opinion on the
proper role (or lack thereof) of withheld information in the
calculus of Leon, and I do not elaborate on its reasoning at
great length. Judge Gilman is certainly correct that Captain
Lawson’s affidavit was insufficient to permit the issuing
magistrate to determine that probable cause existed. Judge
Gilman also properly concludes that information known to the
officers, but not relayed to the issuing magistrate, cannot
preserve the fruits of an invalid warrant under the Leon good-
faith exception. The original panel should be reversed on this
point, and I endorse Judge Gilman’s rejection of the decisions
of the Eighth and Eleventh Circuits. See United States v.
Johnson, 78 F.3d 1258 (8th Cir. 1996); United States v.
Martin, 297 F.3d 1308 (11th Cir.), cert. denied, 123 S. Ct.
667 (2002). Knowledge withheld, either by accident or
through purposeful omission or misrepresentation, cannot
resuscitate otherwise suppressible evidence, because an
officer who neglects to inform fully the issuing magistrate
and who then executes the defective warrant does not
manifest an “objectively reasonable” good-faith belief that the
warrant was valid. Leon, 468 U.S. at 922. Far from

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Nos. 01-5368/5370/5446 United States v.
Carpenter, et al.
19
demonstrating reasonable belief, the omitted information
serves chiefly to highlight an officer’s understanding of the
warrant’s deficiency because that officer is in a unique
position to understand that the issuing magistrate lacked all
the necessary data. Permitting information not presented to
the issuing magistrate to serve as the lynchpin for invoking
Leon perverts the meaning of the warrant requirement because
it allows law enforcement officials to bypass the judiciary;
evidence produced by inadequate search warrants, which are
starved of information and seemingly doomed by insufficient
probable cause, should not receive a reprieve solely because
of information obscured from the issuing magistrate’s
consideration.
I part ways with Judge Gilman, as well as the majority,
because of their conclusion that the officers here had an
objectively reasonable good-faith belief in the warrant’s
legitimacy based upon the scant information actually given to
the issuing magistrate. I would rule that these officers were
“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 (quotation
omitted). The majority holds that even though the affidavit
did not provide enough of a nexus between the Carpenters’
residence and the illegal activity to sustain probable cause,
“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 . . . .”
Maj. Op. at 8. In the majority’s view, the affidavit attesting
to (1) the presence of marijuana “[n]ear” the residence and
(2) “a road connecting” the residence to the area where the
plants were growing did not suffice to give the officers
probable cause to search, but supported the officers’
objectively reasonable belief that the warrant was valid. Id.
Because I believe that the two facts presented in the affidavit
at best draw a tenuous and shadowy connection between the
Carpenter residence and the marijuana plants that is not
sufficient to meet the Leon standards, I cannot agree that a
20 United States v.
Carpenter, et al.
Nos. 01-5368/5370/5446
reasonable officer could have believed that the warrant was
valid.
The threshold issue is how to determine whether an officer
has an objectively reasonable good-faith belief in the
defective warrant’s validity. The Leon Court wrote that “our
good-faith inquiry is confined to the objectively ascertainable
question whether a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s
authorization.” 468 U.S. at 922 n.23. “The objective
standard . . . requires officers to have a reasonable knowledge
of what the law prohibits.” Id. at 919 n.20. Some minimal
connection between the property or person to be searched and
the alleged wrongdoing is a necessary, but not sufficient,
precondition for the satisfaction of this objective standard.
The mere existence of some nexus will not preserve evidence
from the exclusionary rule when a reasonable officer, well
trained in the practice of searches and presumed to understand
the basic principles of the law in this area, submits an
affidavit describing a connection that so plainly fails to
establish probable cause that the reasonable officer should not
have applied for the warrant initially.
The presence of marijuana “near” the Carpenter residence
and the sighting of a road “connecting” the marijuana and the
residence implied some relationship between the two, but this
link was so minimal and so plainly failed to show probable
cause to search that the officers could not have believed that
the warrant authorizing the search was valid. Several courts
have held that Leon does not apply when an affidavit offers an
extremely limited factual basis for probable cause or an
extremely minimal nexus, because such an affidavit is “so
lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Id. at 923 (quotation
omitted). For example, the Eighth Circuit ruled that no
reasonable officer could have believed that probable cause
existed when the only evidence connecting the defendant’s
home to the cultivation of drugs was the presence of

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Nos. 01-5368/5370/5446 United States v.
Carpenter, et al.
21
marijuana on a farm close to the defendant, which was owned
by his relatives. United States v. Herron, 215 F.3d 812, 815
(8th Cir. 2000). The court held that Leon did not apply,
because there was neither evidence of marijuana growing at
the defendant’s residence nor proof of any participation by the
defendant in the cultivation of the marijuana discovered at the
other farm. Id. at 814. The “officers involved should have
been fully aware of the deficiencies of their affidavits”
because the affidavits, which make only a few passing
references to the defendant, “simply do not say very much
about [the defendant] or his residence.” Id. & n.2; see also
United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988)
(rejecting argument that Leon applied when affidavit did not
link the searched residence to the defendant or explain why
incriminating evidence may have been found there).
The cases upon which the majority relies are
distinguishable from the facts here, because in each, the
underlying affidavit contained considerably more detail or
precision than Lawson’s affidavit, and therefore made it
possible for officers executing the warrant to form a
reasonable belief that probable cause existed. In United
States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998), we
upheld a search under Leon because the affidavit stated that
the affiant had personal knowledge of the defendant’s illegal
activities, and because the affidavit described the location of
the residence to be searched “with such particularity that a
common sense inference is that the affiant visited the
premises himself and presumably . . . observed [the
defendant] in the premises.” Id. at 337. In contrast to the
majority’s reading of Van Shutters, I do not believe that we
applied the Leon exception based only upon an extremely
minimal connection to the illegal activity, namely the
defendant’s access to the residence; we explained in Van
Shutters that the affidavit presented a detailed connection
such that “only a police officer with extraordinary legal
training would have detected any deficiencies in [the]
document.” Id. Generally, when an affidavit provides
22 United States v.
Carpenter, et al.
Nos. 01-5368/5370/5446
detailed facts and eschews vague descriptions of the location
or person to be searched, it is much more likely that a law
enforcement official could form an objectively reasonable
belief that a warrant was valid. See United States v. Watkins,
179 F.3d 489, 493, 499 (6th Cir. 1999) (applying Leon when
a six-page affidavit detailed several instances of the
defendant’s drug-related activity both at and away from a
different residence that the police did not search, even though
the affidavit did not mention a second house that was the
object of the search); United States v. Williams, 3 F.3d 69, 70-
71, 74 (3d Cir. 1993) (applying Leon because affidavit of
housekeeper detailed specifics of illegal drug activity in motel
room, such as “coded” knocks, overheard conversations, and
observations of paraphernalia made while cleaning); cf.
United States v. Helton, 314 F.3d 812, 816, 824 (6th Cir.
2003) (rejecting application of Leon exception even though a
twenty-seven-page affidavit supported the warrant, because
the affidavit relied too heavily on an anonymous tipster’s
recollections).
Additionally, the proximity of illegal marijuana cultivation
to the property that is searched is a significant factor in
assessing the objective reasonableness of an officer’s belief
that probable cause existed. In United States v. Malin, 908
F.2d 163 (7th Cir. 1990), the Seventh Circuit found that
probable cause existed to search a residence, but questioned
in the alternative whether Leon would apply. The court
answered affirmatively because the officer’s affidavit
described his observation of marijuana growing directly next
to a house in a fenced-in yard, even though the officer did not
observe any individual near the marijuana. Id. at 165-67. See
also United States v. Huggins, 299 F.3d 1039, 1041, 1045
(9th Cir. 2002) (concluding that an objectively reasonable
officer could rely on an affidavit when it presented
information that the defendant’s home consumed electricity
in a manner consistent with marijuana cultivation).

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Nos. 01-5368/5370/5446 United States v.
Carpenter, et al.
23
The facts here are much closer to Herron than they are to
Van Shutters or Malin. Lawson’s affidavit provided only the
barest modicum of information to the issuing magistrate. Its
brevity and vacuousness sharply distinguishes it from the
detailed affidavit presented in Van Shutters. It did not
connect the Carpenter residence to the marijuana observed;
that the marijuana was seen “near” to the residence does not
necessarily imply a connection between the two, particularly
when Lawson knew that the plants were in fact approximately
900 feet from the Carpenter residence. Unlike Malin, when
the marijuana grew in a fenced-in yard directly adjacent to the
house, the marijuana “near” the Carpenters’ trailer was far
enough away that no officer could draw a firm connection
between the two, or between the marijuana and any other
residence in the neighborhood for that matter. If the
marijuana had been growing next to the trailer or in the patch
of corn behind the trailer, the officers’ belief in the warrant’s
validity might have been more reasonable. Furthermore, the
road “connecting” the residence to the marijuana plants was
in reality a dirt path leading from the Carpenters’ trailer to a
separate tractor path that may have served as the connection
between the city road and a homestead behind the Carpenters’
trailer that had burned down several years before. The good-
faith exception cannot apply here because Lawson’s affidavit
was based on two extremely inconclusive connections
between the marijuana and the house, and therefore Lawson
could not have reasonably believed that probable cause
existed.
Because there was no probable cause to justify the search
and because I do not believe that a law enforcement officer
could form the objectively reasonable belief that the warrant
was valid when so little linked the Carpenter residence to the
marijuana plants growing “near” the residence, I would
reverse the district court and exclude the evidence gathered
from the illegal search.
24 United States v.
Carpenter, et al.
Nos. 01-5368/5370/5446
______________
DISSENT
______________
BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I join
Judge Moore’s very persuasive dissent and add only the
following. Given the sophisticated technologies that the
police now have at their disposal, as well as the wide
discretion that they currently enjoy, it is especially important
that we are careful not to expand their powers beyond what is
authorized by the Constitution. In this case, the Constitution
has been set aside in the name of expediency. Regrettably,
we have descended further down that slippery slope of post-
hoc rationalization, where everything that the police do
becomes acceptable when viewed in retrospect.
For the reasons set forth by Judge Moore and for these
reasons, I respectfully dissent.

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