The U.S. Court of Appeals for the Sixth Circuit tossed a federal drug and gun case based on a defective search warrant. The Court held that the affidavit filed by law enforcement to show probable cause to obtain a search warrant was lacking in detail and therefore the warrant should not have been issued.
Lexington, Kentucky, police used a confidential informant (CI) in 2019 to make controlled drug buys from Antwone Sanders, a suspected drug dealer, reportedly selling heroin and fentanyl. Upon the arrest of Sanders, police allegedly found drugs and firearms in his apartment. He was charged with possession and possession with intent to distribute controlled substances, under 21 U.S.C. § 841, and being a felon in possession of a firearm and possessing a firearm in furtherance of a drug offence, under 18 U.S.C. §§ 922(g) and 924(c).
Sanders moved to suppress the evidence, claiming the search warrant was defective, but the district court concluded that probable cause supported the search warrant. In the alternative, the court ruled that the “good faith” exception, under United States v. Leon, 468 U.S. 897 (1984), excused any problems with the warrant and subsequent search. Sanders pled guilty but reserved his right to appeal the rulings on the search warrant. He was sentenced to 72 months in prison.
When a search warrant is challenged in federal court, regardless of whether it is from a state or federal agency, federal constitutional law applies. Elkins v. United States, 364 U.S. 206 (1960). The Fourth Amendment to the U.S. Constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Probable cause is defined as “reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion that there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. King, 227 F.3d 732 (6th Cir. 2000).
The most common way to show probable cause to obtain a search warrant is with an affidavit filed by law enforcement that describes the “reasonable grounds for belief” that contraband will be found. This affidavit must provide two things: (1) that the items sought will be connected with criminal activity (i.e., “contraband”), and (2) that the contraband will be found in the place to be searched. While probable cause is not a high bar to meet, the Supreme Court has held that the connection between the contraband and the place where it will be found must be concrete, not vague or generalized. Illinois v. Gates, 462 U.S. 213 (1983).
In Sanders’s case, the affidavit stated that law enforcement received a tip from a CI that Sanders was selling drugs from his apartment. However, the affidavit contained no information about the reliability of the CI who provided the tip, only the accusations by the CI. The Sixth Circuit determined that this was not enough to show probable cause to support a search warrant, stating:
Officer Hazlewood’s affidavit contains an insufficient nexus to support the search warrant. The CI’s tip is the only direct connection between Defendant’s drug activity and the Yellowstone Parkway apartment. However, Officer Hazlewood’s affidavit gives no indication as to the veracity or reliability of the information obtained. Officer Hazlewood did not state that he relied on or worked with the CI on prior
occasions or that the CI had proved reliable in the past. Further, he did not assert any belief concerning the reliability or veracity of the CI’s tip, let alone provide any factual basis by which the magistrate could assess its reliability or veracity.
The Court also explained that the affidavit failed to set forth the CI’s basis of knowledge, that is the means by which he obtained this information about Sanders’s alleged drug activity. Instead, the affidavit simply stated that law enforcement received information from a CI that Sanders was selling drugs. “This statement does nothing to establish the basis of knowledge of the CI, such as indicating that the CI purchased drugs at [Sanders’s] apartment or observed drugs within the apartment,” the Court said.
The Court further found that the district court failed to give sufficient weight to the criteria to be met for an affidavit in such a situation. In United States v. Sumlin, 956 F.3d 879 (6th Cir. 2020), the court of appeals held that to establish probable cause to search a residence, the government’s affidavit needed to demonstrate “(1) that [the defendant] was trafficking drugs; (2) that [the defendant] lived at the [residence to be searched]; and (3) that evidence of drug trafficking would be found at [the defendant’s]
The district court said the third criterion was a “trivial bar to pass,” but the Sixth Circuit disagreed. The Court acknowledged that case law was “unsettled” on how much weight a court must give these criteria but clarified that “additional specific evidence showing a connection between the alleged drug trafficking and the residence is required.” The district court not only failed to find the third criterion in this case, but the other criteria as well, the Court said.
In short, the affidavit failed to establish a nexus between the drug activity and the apartment. This did not amount to “probable cause” to support the issuance of a search warrant, the Court held.
The Court also held that the Good Faith exception could not apply to overlook the defective warrant. Specifically, the Court found that the affidavit was “so lacking in indicia o probable cause that a belief in its existence is objectively unreasonable.” This is one of the reasons listed in Leon where the Good Faith exception does not apply. The Court concluded that a reasonable officer would not have given much weight on the CI’s tip, making it objectively unreasonable.
Accordingly, the Sixth Circuit vacated Sanders’s drug and firearm convictions and remanded for further proceedings. See United States v. Sanders, No. 21-5945 (6th Cir. Feb. 6, 2023).
I think it’s interesting how Fourth Amendment law always seems to be evolving in the federal courts. The Court here spent considerable time reviewing its prior cases on probable cause to support search warrants and explained why this case was not saved by any of it. It’s a good read for anyone litigating search and seizure in any federal case, not just drug cases.
Dale Chappell is a prolific writer on criminal justice issues and is the founder of Habeas Masters Research Group. He can be found on his blog at habeasmasters.com and hanging around the law library at Florida A&M University.