United States v. Marlon Grant

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 6, 2023
• Docket: 21-3686
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0013n.06

Case No. 21-3686

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 06, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE MARLON GRANT, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) OPINION

Before: COLE, GIBBONS, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. This appeal concerns the validity of warrants issued to

search for drug-trafficking records at a residence and storefront rented by Marlon Grant, located

at 501 Tiffin Avenue in Sandusky, Ohio. For the search to have complied with the Fourth

Amendment, the warrants needed a factual basis showing a nexus between alleged drug dealing

and the property such that it was probable that documentation of the illegal activity would be found

there. But all the police knew about the property when they obtained the warrant was that Grant,

a suspected drug dealer, was the renter and that he had parked his car there on numerous occasions

without staying for long. At no point had police observed Grant conduct a drug transaction at that

address. Nor had he ever been seen leaving the building immediately before a drug deal or directly

returning after the sale was completed. And the police had never seen any drugs or drug

paraphernalia on or around the property. Case No. 21-3686, United States v. Grant

Our case law is clear that a person’s status as an alleged drug dealer, standing alone, is not

enough to support a warrant to search that person’s real property for drugs or drug-related

documents or other material. There must be additional supporting evidence of drug activity linked

to the property for a search warrant to be valid. That extra proof was lacking in this case.

Accordingly, we hold that the district court erred by denying Grant’s motion to suppress evidence

derived from the search and by holding that the good-faith exception to the exclusionary rule would

apply. We REVERSE the district court’s denial of Grant’s suppression motion, VACATE his

conviction, and REMAND for proceedings consistent with this opinion.

I.

In June 2018, police in Sandusky, Ohio received an anonymous tip that Grant had supplied

a “large amount of Cocaine” in that town. Several months later a confidential informant, CS#1,

approached the police and offered to purchase fourteen grams of crack cocaine from Grant. Police

agreed. So on February 1, 2019, CS#1 placed a monitored phone call to Grant, during which the

two had a “drug related conversation.” That same day, police watched as Grant drove to 501 Tiffin

Avenue from 1001 West Monroe Street, another property he rented. When he arrived at the Tiffin

Avenue address, he parked outside the building without entering. He then left the premises on

foot. Police later saw him at CS#1’s residence. At some point, Grant called CS#1 and told her1

that he had left crack cocaine in a potato chip bag near the steps of her residence, and that he would

collect payment from her later.2

The next day, CS#1 went to 1001 West Monroe Street to pay Grant. CS#1 called Grant

and he told her to leave the money in a black Ford Windstar parked in the driveway, which she

1 The affidavit identifies CS#1 as he/she for anonymity. For ease of reference, we default to female pronouns. 2 Subsequent testing confirmed the presence of cocaine in the potato chip bag.

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did. Afterward, police saw Grant arrive at 1001 West Monroe Street, enter and exit the black Ford

Windstar, and enter the storefront of 1001 West Monroe Street. Later, police saw the same vehicle

parked at 501 Tiffin Avenue, and CS#1 told police that Grant confirmed he received the money.

Forty-seven days later, on March 21, 2019, Detective Brotherton applied for warrants to

search for drug trafficking records (records warrants) in the storefront and lower apartment of 501

Tiffin Avenue. In his affidavits in support of the warrants, Detective Brotherton included the

information recounted above as well as (1) his attestation that he had seen Grant arrive and depart

from 501 Tiffin Avenue “numerous” times, staying only for a short time each visit; (2) his

conjecture, based on his training and experience, that this behavior suggested narcotics trafficking;

and (3) general information about drug trafficking behavior, including drug traffickers’ proclivity

for keeping records at secondary locations. Detective Brotherton concluded by noting that police

had seen one of Grant’s vehicles parked at 501 Tiffin Avenue that day, and that the owner of the

building confirmed Grant rented the storefront and lower apartment.

A Sandusky Municipal Court judge thought that this information was enough to establish

probable cause and issued the records warrants. Police then searched 501 Tiffin Avenue and found

a handgun with ammunition as well as suspected crack cocaine and marijuana. Without seizing

any of these items, police stopped their search and returned to Sandusky Municipal Court seeking

warrants to search for and seize narcotics and contraband at 501 Tiffin Avenue (narcotics

warrants). The affidavits in support of these warrants were nearly identical to the affidavits for

the records warrants, only the second set included a description of the suspected contraband police

had found but not seized during the first search. A judge issued the requested narcotics warrants,

and police then seized cocaine, crack-cocaine, marijuana, and firearms from 501 Tiffin Avenue.

Police later arrested Grant at 1001 West Monroe Street, and police obtained a final set of narcotics

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warrants to search the apartment and storefront of 1001 West Monroe Street. With these warrants,

police seized $6,455 in cash and Grant’s cell phone.

The second and third searches resulted in Grant’s indictment for possession with intent to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and possession with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Grant moved to

suppress all the evidence seized or derived from any of the issued search warrants, arguing that

the records warrants lacked probable cause, and that the narcotics warrants were unlawful fruits of

the records warrants. Without holding a hearing, the district court denied the motion, reasoning

that the records warrants were supported by probable cause, and the good-faith exception would

otherwise apply.

With his motion to suppress denied, Grant pleaded guilty and received a five-year sentence.

But he preserved his right to appeal the denial of his motion to suppress, which he now timely

appeals.

II.

Grant’s only claim on appeal is that the district court erred in denying his motion to

suppress. A finding of probable cause, or a decision to apply the good-faith exception to the

exclusionary rule, is a legal conclusion which we review de novo. United States v. McCoy, 905

F.3d 409, 415 (6th Cir. 2018); United States v. Brown, 732 F.3d 569, 572 (6th Cir. 2013). Because

the district court did not hold an evidentiary hearing for Grant’s motion to suppress, we owe no

deference to its conclusions. United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2013) (citing

Brown, 732 F.3d at 572)). But we owe great deference toward the issuing judge’s initial

determination whether, based on the four corners of the affidavit, there was a substantial basis for

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finding probable cause. United States v. Moore, 999 F.3d 993, 996 (6th Cir. 2021); see Illinois v.

Gates, 462 U.S. 213, 236 (1983).

The Fourth Amendment protects the “right of people to be secure in their . . . houses,

papers, and effects” and requires 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.” U.S. Const., amend. IV. Thus, the affidavit supporting a warrant must contain

facts that demonstrate “a fair probability that evidence of a crime will be located on the premises

of the proposed search.” United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (quoting

United States v. Bowling, 900 F.2d 926, 930 (6th Cir. 1990)). In other words, there must be a

“nexus between the place to be searched and the evidence sought.” United States v. Carpenter,

360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d 331,

336–37 (6th Cir. 1998)). It is not enough for police to suspect that the owner or renter of a property

committed a crime. United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005). Rather, there

must be “reasonable cause to believe that the specific ‘things’ to be searched for and seized are

located on the property to which entry is sought.” Id. (quoting Zurcher v. Stanford Daily, 436 U.S.

547, 556 (1978)). This connection between the location and the evidence of criminal activity must

be “specific and concrete, not ‘vague’ or ‘generalized.’” Brown, 828 F.3d at 382 (quoting

Carpenter, 360 F.3d at 595)).

Whether a search was an unconstitutional intrusion is a fact-intensive inquiry that has

defied the creation of bright-line rules. Yet several trends have emerged. In some cases, we have

found a sufficient nexus between a residence, an individual, and suspected contraband based on

one controlled drug buy. See, e.g., United States v. Pinson, 321 F.3d 558, 560–61 (6th Cir. 2003);

United States v. Jackson, 470 F.3d 299, 303 (6th Cir. 2006); United States v. Archibald, 685 F.3d

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553, 555 (6th Cir. 2012) (abrogated on other grounds). But we have typically done so only when

the drug transaction took place at the location police wanted to search, or when a suspect was seen

exiting a building immediately before undertaking a drug deal. See Pinson, 321 F.3d at 560–61

(police sent an informant into a residence to purchase drugs and he returned from the residence

having purchased drugs); Jackson, 470 F.3d at 303 (same); Archibald, 685 F.3d at 555 (same);

United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (a confidential informant saw the

suspect exit the side door of the residence and give another person a large quantity of cocaine

before returning inside); United States v. Jones, 817 F.3d 489, 491 (6th Cir. 2016) (police watched

a suspect exit a residence and drive directly to a third location where he sold cocaine to a

confidential informant).

In other cases, we have inferred a nexus between a known drug trafficker and a residence

when there is strong evidence linking the suspect to the residence, and there is some additional

evidence of drug activity at the residence. Brown, 828 F.3d at 383; Jones, 817 F.3d at 491. No

case suggests that a defendant’s status as a drug dealer creates a nexus between his residence and

drug evidence. Frazier, 423 F.3d, at 533. But it is yet unsettled how much additional evidence of

drug activity is needed for a nexus to exist. Some cases have said that this inference can be invoked

only when there is “overwhelming evidence that the defendants [are] major players in a large,

ongoing drug trafficking operation.” Brown, 828 F.3d, at 383 n.2. But still others have called only

for “recent, reliable evidence of drug activity.” McCoy, 905 F.3d at 418. At a minimum, we have

required “facts showing that the residence had been used in drug trafficking, such as an informant

who observed drug deals or drug paraphernalia in or around the residence.” Brown, 828 F.3d at

383.

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Grant asserts that the affidavits supporting the records warrants for 501 Tiffin Avenue do

not establish a proper nexus between his alleged drug activity, records of the same, and that

address. We agree. Unlike cases where we have found a sufficient connection based on a single

controlled buy, the affidavit does not allege that Grant dealt drugs from 501 Tiffin Avenue or that

he even entered the building just before or after the controlled buy. See Ellison, 632 F.3d, at 348;

Jones, 817 F.3d at 490; Pinson, 321 F.3d at 560–61. The affidavit neither establishes that Grant

was a known drug dealer, nor does it provide evidence of “a large, ongoing drug trafficking

operation,” or “recent, reliable evidence of drug activity.” Brown, 828 F.3d at 383 n.2; McCoy,

905 F.3d at 418. The only controlled buy linking Grant to drug trafficking occurred forty-seven

days before police sought the records warrants, and the only arguable tie that the controlled buy

had to 501 Tiffin Avenue was that Grant had parked there (though the buy had not occurred there).

When the police observed Grant at the Tiffin Avenue address, which they knew he rented, his

visits were short. While these visits could perhaps be characterized as suspicious behavior, the

observed facts were insufficient under our precedent to provide “reliable evidence connecting [a]

known drug dealer’s ongoing criminal activity to the residence [501 Tiffin Avenue].” Brown, 828

F.3d, at 383; see McCoy, 905 F.3d, at 418 n.5. Put simply, Detective Brotherton’s affidavits did

not establish that police had a reasonable basis for thinking records of drug trafficking would be

found at 501 Tiffin Avenue. See Frazier, 423 F.3d at 532. Therefore, the records warrants were

issued without probable cause.

Because the records warrants lacked probable cause based on a lack of nexus, we need not

also decide whether the information supporting the warrants was stale.

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III.

Though the records warrants lacked probable cause, the evidence used against Grant was

seized pursuant to the later narcotics warrants. Under the fruit of the poisonous tree doctrine, any

evidence “which police derivatively obtain[ed] from an unconstitutional search or seizure” is

inadmissible. United States v. Pearce, 531 F.3d 374, 381 (6th Cir. 2008) (citing Wong Sun v.

United States, 371 U.S. 471, 484–85 (1963). By extension, “information gained by law

enforcement officers during an illegal search cannot be used in a derivative manner to obtain other

evidence.” United States v. Hearn, 496 F.2d 236, 244 (6th Cir. 1974). But this doctrine does not

apply if “the connection between the lawless conduct of the police and the discovery of the

challenged evidence has ‘become so attenuated as to dissipate the taint.’” Wong Sun, 371 at 487

(quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). In this case, attenuation does not

apply. The affidavits supporting the 501 Tiffin Avenue and 1001 West Monroe narcotics warrants

were nearly identical to the records warrants affidavits, and all three sets of warrants were issued

within hours of each other. See Brown v. Illinois, 422 U.S. 590, 603–04 (1975). So this is not the

case where the lawless conduct is significantly attenuated from the seizure of evidence. Nor has

the government suggested this evidence had an “independent source.” Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 392 (1920). The only difference between the records and narcotics

warrant affidavits was the inclusion of a description of the suspected contraband police found but

did not seize at 501 Tiffin Avenue, and for the third set, a description of the items seized at 501

Tiffin Avenue. The evidence seized under the narcotics warrants was “come at by the exploitation

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of [the] illegality” of police’s prior unlawful search and thus must be suppressed. See Wong Sun,

371 U.S. at 488 (quoting Maquire, Evidence of Guilt, 221 (1959)).

Because the evidence seized under the narcotics warrants is excludable as fruits of the

poisonous tree, we need not also decide whether the narcotics warrants were sufficiently

particularized.

IV.

The exclusionary rule typically precludes the government from using evidence obtained in

violation of the Fourth Amendment against the victim of the unlawful search or seizure. Illinois

v. Krull, 480 U.S. 340, 347 (1987).3 But the rule does not bar the government’s use of evidence

“obtained by police officers acting in objectively reasonable reliance on a search warrant that is

subsequently invalidated.” United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing

United States v. Leon, 468 U.S. 897, 918–21 (1984). This good-faith exception applies when a

“reasonably well trained officer” would not have known the search was illegal despite a judge’s

authorization. Leon, 468 U.S. at 922 n.23. But reliance on a warrant is objectively unreasonable

if (1) the officer knowingly or recklessly provided false information; (2) the magistrate was not

neutral and detached; (3) the affidavit was “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable”; or (4) the warrant is so facially deficient that

an officer could not reasonably thinks it valid. Leon, 468 U.S. at 923 (internal quotations and

citations omitted).

3 Although police did not use the records warrants to seize any physical evidence introduced against Grant in his subsequent proceedings, police gained information which they included in the affidavits for the narcotics warrants. Information obtained during an illegal search “cannot be used in a derivative manner to obtain other evidence.” Hearn, 496 F.2d at 244. So unless the good-faith exception to the exclusionary rule applies to the records warrants, the information learned and evidence seized under the narcotics warrants must be excluded. See also United States v. McClain, 444 F.3d 556, 565 (6th Cir. 2005) (explaining that the good-faith exception to the exclusionary rule can apply when a warrant is granted based in part on evidence obtained through an illegal search).

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Grant argues that the third scenario applies here. To establish this, he must show that the

records warrant affidavits were so “bare bones” that they were “either completely devoid of facts

to support the affiant’s judgment that probable cause exists, or so vague as to be conclusory or

meaningless.” United States v. White¸ 874 F.3d 490, 496–97 (6th Cir. 2017) (internal citations

and quotations omitted). Though the records warrants lacked a sufficient nexus for probable cause,

the affidavit must contain only a “minimally sufficient nexus between the illegal activity and the

place to be searched” for the good-faith exception to apply. Id. (quoting Carpenter, 360 F.3d at

596).

The affidavits in support of the records warrants do not meet this minimal bar. The only

fact alleged connecting 501 Tiffin Avenue to drug activity was a statement that Grant “parked to

the rear, north side of a secondary location associated with Grant, 501 Tiffin Avenue, Sandusky,

Ohio. [Police] then observed Grant walking away from the rear, north side of 501 Tiffin Avenue.”

Although Detective Brotherton discussed his training and experience and subsequent conclusion

that Grant’s visits to 501 Tiffin Avenue indicated drug trafficking, this inference alone cannot

support probable cause. It had to be supported by some reference to drug activity at the residence.

See United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994); see also White, 874 F.3d at 500.

None of the facts alleged directly tie 501 Tiffin Avenue to drug activity, let alone as a likely

location for records of drug trafficking. See Brown, 828 F.3d at 385–86; see also United States v.

Ward, 967 F.3d 550, 555 (6th Cir. 2020) (declining to apply the good-faith exception when police

had “neither a tip alleging that [defendant] sold drugs from his home, a controlled buy at

[defendant’s] residence, evidence of numerous drug convictions, nor the prompt action by law

enforcement”).

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At oral argument, the government pointed to United States v. Washington as authority

establishing that the good-faith exception should apply. 380 F.3d 236 (6th Cir. 2004). But in that

case, police saw the defendant “emerge[]” from the target residence “immediately prior to

conducting the second drug deal,” a fact glaringly absent from the case at bar. Id. at 243. The

vehicle used for both drug deals was also registered to the target residence, a fact not alleged here.

Id. Although the good-faith standard is less demanding than that for probable cause, the affidavit

must draw a plausible nexus between suspected drug records and 501 Tiffin Avenue, and it failed

to do so. Detective Brotherton’s affidavit was thus so “lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable,” and the good-faith exception does not

apply. Carpenter, 360 F.3d at 595. Therefore, the information police learned when they executed

the records warrants must be suppressed, and the fruits of that initial unlawful search must be

suppressed as well.

V.

For the forgoing reasons we REVERSE the district court’s denial of Grant’s suppression

motion, VACATE his conviction, and REMAND for further proceedings consistent with this

opinion.

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