Date: 03-26-2018

Case Style:

Case Number: 17-5893

Judge: Cook

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Western District of Kentucky (Jefferson County)

Plaintiff's Attorney: Amanda B. Harris

Defendant's Attorney: Michael R. Mazzoli and Rob Eggert

Description: Not all search warrant affidavits include the same ingredients.
It is the mix that courts review to decide whether evidence generated from the search may be
>
No. 17-5893 United States v. Hines Page 2
used or must be suppressed. Some affidavits describe in fine detail a confidential informant’s
reliability, whereas others emphasize the tipster’s basis of knowledge. Some discuss controlled
drug buys by police officers looking to corroborate a tip, and others spotlight a suspect’s criminal
history. There isn’t a singular formula; we consider the affidavit proper if, in its totality, it
sufficiently demonstrates probable cause for that search warrant.
Finding the affidavit in this case insufficient to establish probable cause, the district court
suppressed evidence recovered during a search. We decide that the totality of the circumstances
dictates otherwise, however, and REVERSE.
I.
A.
On December 15, 2015, Louisville Metropolitan Police Department Detective Daniel
Evans submitted to Kentucky Circuit Court Judge McKay Chauvin an affidavit for a search
warrant of the single-family residence at 668 Eastlawn Avenue in Louisville. The affidavit set
forth the following information.
In July 2015, Louisville law enforcement officers learned from a “reliable confidential
informant”—referred to as “CS1” throughout the affidavit, without any other identifying
information—that William Hines was “selling large amounts of heroin” out of 668 Eastlawn.
Surveillance of that house, owned by Hines’s mother, over the ensuing months tracked Hines’s
regular comings and goings.
On December 14, 2015, CS1 informed Detective Evans that CS1 “had seen an amount of
heroin at” 668 Eastlawn that day. Also on December 14, Detective Evans received further
information about Hines “from another reliable confidential source”—referred to as “CS2” in the
affidavit. CS2 said Hines had contacted him that day and proposed that they meet at a club
called Legends to discuss an incoming heroin shipment. After he met with Hines, CS2 informed
Detective Evans that Hines wanted CS2 to meet him at 668 Eastlawn the following day, where
Hines would provide CS2 with heroin. According to CS2, he had received heroin from Hines
numerous times and was always instructed to meet at 668 Eastlawn.
No. 17-5893 United States v. Hines Page 3
Owing to the information from CS1 and CS2, and prior to the meeting at Legends,
officers set up surveillance around 668 Eastlawn. They saw Hines leave the house, stop briefly
at a liquor store, and then drive to the club. When Hines left the liquor store, surveilling officers
observed him “drive in a manner consistent with narcotics traffickers”—“he drove opposite of
traffic down a one-way street before entering a dark, narrow alley” where officers believed Hines
was looking for any tailing law enforcement.
Detective Evans also independently investigated Hines’s history as a drug trafficker and
summarized it in the affidavit. Hines had been on the Louisville DEA’s radar since at least 2007,
when wire intercepts identified Hines as a kilogram-quantity cocaine trafficker. Additional
wiretaps in 2012 helped the Louisville DEA peg Hines as a significant heroin trafficker. That
summer, officers seized $33,500 from Javier Rodriguez outside 668 Eastlawn, which they
believed to be payment from Hines for a kilogram of cocaine. In a 2015 interview with officers,
Rodriguez said that he had previously provided Hines with kilogram-quantities of cocaine and
heroin.
B.
The state judge signed a search warrant for 668 Eastlawn early in the afternoon of
December 15, which Detective Evans and other officers executed later that day. They recovered,
among other things, 3.72 pounds of cocaine, 2.08 pounds of heroin, $16,085 in cash, and a
digital scale with plastic baggies.
Based on the fruits of the search, a federal grand jury charged Hines with possession with
intent to distribute at least 100 grams of heroin and at least 500 grams of cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B). Hines moved to suppress the evidence recovered at
668 Eastlawn. His arguments supporting suppression shifted but ultimately converged on two:
the affidavit did not establish probable cause for the search warrant, and the good-faith exception
to the exclusionary rule did not apply.
The district court granted Hines’s motion to suppress. The court found that “the search
warrant affidavit does not establish the reliability of the confidential informants in this case, and
as such, it lacks probable cause.” It held that the affidavit’s assertion that both CS1 and CS2
No. 17-5893 United States v. Hines Page 4
were “reliable” was “clearly insufficient” to establish the informants’ reliability, noting the
conclusory nature of the description and that Detective Evans neither provided the informants’
identities to the state judge nor indicated in the affidavit that either informant had previously
supplied reliable information. The court also found no independent police corroboration of the
confidential informants’ statements placing drugs at 668 Eastlawn; “[t]he only information
police were able to independently corroborate was that Hines did in fact go to the night club CS2
specified they would meet at,” which, according to the court, was the “least significant part of
CS2’s story.”
Next, the court determined the good-faith exception to the exclusionary rule to be
inapplicable because “the officer who wrote the search warrant affidavit and applied for and
received the warrant was the same officer who executed it.” Because, the court explained,
the warrant lacked the necessary indicia that the statements by CS1 or CS2 were
reliable . . . , it was unreasonable for Detective Evans to have relied on the search
warrant affidavit that he himself prepared, as he was aware of its contents and
should have known that more information was required to establish the reliability
of the confidential informants . . . .
The Government timely appealed. We first address whether the affidavit established
probable cause, and then proceed to the good-faith inquiry.
II.
A.
The Fourth Amendment requires warrants to be supported by probable cause. “In order
to demonstrate probable cause sufficient to justify a search warrant, the proponent must submit
an affidavit that ‘indicate[s] a fair probability that evidence of a crime will be located on the
premises of the proposed search.’” United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009)
(quoting United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005)) (alteration in original).
“A court must look to the ‘totality of the circumstances,’ including a confidential informant’s
‘veracity, reliability, and basis of knowledge,’ in order to answer ‘the commonsense, practical
question’ of whether an affidavit is sufficient to support a finding of probable cause.” United
States v. May, 399 F.3d 817, 822 (6th Cir. 2005) (quoting Illinois v. Gates, 462 U.S. 213, 230
No. 17-5893 United States v. Hines Page 5
(1983)). Although the court is “limited to examining the information contained within the four
corners of the affidavit,” Dyer, 580 F.3d at 390, line-by-line scrutiny of the underlying affidavit
is improper when reviewing the issuing judge’s probable cause determination, United States v.
Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc).
We assess the district court’s decision to suppress evidence by reviewing the court’s
factual findings for clear error and its legal determinations—including whether probable cause
existed—de novo. United States v. Dunning, 857 F.3d 342, 346 (6th Cir. 2017); United States v.
Lazar, 604 F.3d 230, 232–33 (6th Cir. 2010). “Given the de novo standard of review, where, as
here, the district court reviewed the [issuing judge’s] probable cause determination, we owe
the district court’s conclusion no particular deference.” United States v. Brown, 732 F.3d 569,
572–73 (6th Cir. 2013) (citing United States v. Leake, 998 F.2d 1359, 1362–63 (6th Cir. 1993)).
“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. Washington, 380 F.3d 236, 240 (6th Cir. 2004) (quoting Leake, 998 F.2d at
1363).
B.
The Government argues that the district court’s ruling flouts the totality-of-thecircumstances
approach to determining the affidavit’s sufficiency. We agree.
Although the affidavit neither named the confidential informants nor offered how they
previously provided accurate information, it described both informants’ bases of knowledge for
their tips about Hines’s trafficking drugs out of 668 Eastlawn. At least as of July 2015, CS1
knew that Hines “was actively selling large amounts of heroin from” 668 Eastlawn and informed
law enforcement as much. Then, on December 14, Detective Hines learned from CS1 that CS1
saw heroin at 668 Eastlawn that very day. The basis of CS2’s knowledge is even stronger. CS2
received heroin from Hines “on numerous occasions in the past, and stated that he is always
instructed to come to 668 Eastlawn.” On December 14, CS2 told Detective Evans that Hines had
contacted him earlier in the day “regarding [Hines] receiving a shipment of heroin” and to say
“that he would like to speak with CS2 at Legends Nightclub to discuss the shipment.” After CS2
No. 17-5893 United States v. Hines Page 6
met with Hines, CS2 contacted Detective Evans “and informed that [Hines] wanted CS2 to come
to his residence, 668 Eastlawn Avenue, at [sic] on December 15, where [Hines] will provide CS2
with a large amount of heroin.”
The district court dismissed these statements as “merely creat[ing] a circle of
speculation.” Instead, it should have credited them as illustrating CS1’s and CS2’s bases of
knowledge regarding drug trafficking at 668 Eastlawn. For example, compare this affidavit to
the one upheld in United States v. Moore, 661 F.3d 309 (6th Cir. 2011). The Moore affidavit
contained one paragraph noting that an unnamed informant “stated that he/she has been at the
above described residence within the past five (5) days . . . and has seen the above described
storing and selling cocaine at the above named address.” 661 F.3d at 311. Here, the two
informants had as much or more knowledge of Hines’s heroin stash at 668 Eastlawn. CS1 saw
heroin at 668 Eastlawn the day before the search; Hines contacted CS2 to discuss a shipment of
heroin and later told him to come to 668 Eastlawn for a hand-off. The district court discredited
this information as devoid of details like quantity or location in the house. But the Moore
informant likewise never specified the quantity of drugs or their location within the residence to
be searched. Id. And even though CS2 did not say that he saw heroin at Hines’s residence
immediately before the search, he admitted that he had always picked up heroin from Hines at
668 Eastlawn in the past—the same place Hines told CS2 to visit on December 15.
So even though the affidavit did not address in detail the reliability of CS1 and CS2, it
gave appreciable attention to the bases of their knowledge. See United States v. Coffee, 434 F.3d
887, 895 (6th Cir. 2006) (crediting an affidavit that “contains no averments that the informant
was reliable based on prior contacts” but “does state that the CI had made several purchases in
the past from [the suspect] at the specified address”). We do not evaluate an informant’s
veracity, reliability, and basis of knowledge independently; more of one compensates for less of
the others. United States v. Ferguson, 252 F. App’x 714, 721 (6th Cir. 2007). Fatally faulting
this affidavit for failing to name the informants or explain that they previously gave accurate
information frustrates the totality-of-the-circumstances review we must conduct. See United
States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008) (explaining that we review the totality of the
No. 17-5893 United States v. Hines Page 7
circumstances to make a commonsense, rather than “hyper-technical, determination of whether
probable cause is present”).
Granted, the district court didn’t end its analysis there; it reviewed the affidavit for
independent police corroboration of the tips. The court declared that “[t]he only information
police were able to independently corroborate was that Hines did in fact go to the night club CS2
specified they would meet at.” Calling this “the least significant part of CS2’s story,” the court
concluded that the affidavit lacked substantial independent police corroboration to support the
probable-cause determination. We disagree.
For one, given the informants’ bases of knowledge, substantial independent police
corroboration was unnecessary. See Dyer, 580 F.3d at 392 (“[O]nly when no substantial
supporting evidence exists within the four corners of the affidavit as to the informant’s reliability
do courts require substantial independent police corroboration.”). In any event, officers
independently—and sufficiently—corroborated the tips. After CS1 informed officers in July
2015 that Hines was selling large quantities of heroin out of 668 Eastlawn, DEA and police
officers “conducted surveillance at the residence on occasion” and saw Hines “arrive and depart
the residence with regularity.” Moreover, per the tips from CS1 and CS2 on December 14,
officers re-established surveillance around 668 Eastlawn. They witnessed Hines leave the house
and drive to Legends that evening—the club at which CS2 said Hines wanted to meet to discuss
a shipment of heroin. The district court brushes this aside as mere corroboration that Hines went
to a location mentioned by CS2, but that misses a key point: CS2 specified that Hines wanted to
meet at Legends to discuss a shipment of heroin. And if “an informant is right about some
things, he is more probably right about other facts” regarding the suspect’s illegal activity.
Gates, 462 U.S. at 244 (quoting Spinelli v. United States, 393 U.S. 410, 427 (1969) (White, J.,
concurring)). True, as the district court implies, the officers did not set up a controlled buy or
see drugs in the house. But our precedent does not require independent corroboration of criminal
activity. Corroboration of specific nonobvious information that, although innocent on its own,
meshes with an informant’s tips is similarly relevant. See, e.g., Dyer, 580 F.3d at 392–93
(crediting police corroboration of informant’s descriptions of suspect’s cars and physical
appearance); May, 399 F.3d at 825 (crediting as independent police corroboration the affidavit’s
No. 17-5893 United States v. Hines Page 8
averment that surveillance team saw a particular individual involved in unrelated investigation
entering suspect’s residence).
In addition, Detective Evans independently investigated law enforcement’s previous
dealings with Hines, learning that Hines had “a prior criminal history for narcotics possession
and trafficking.” And Detective Evans laid it out in the affidavit—that 668 Eastlawn served as a
drug distribution point for Hines since 2012, that Javier Rodriguez admitted to officers that he
previously provided drugs to Hines, that “[s]ource information as recently as December of 2015”
indicated Hines to be selling kilos of heroin in Louisville—thereby providing the issuing judge
with further independent corroboration of the informants’ leads. See Dyer, 580 F.3d at 392
(“Although a defendant’s criminal history is not dispositive, it is relevant to the probable cause
inquiry.” (internal citation omitted)); Martin, 526 F.3d at 937 (noting that defendant’s criminal
history—included in the affidavit—constituted “independent corroboration” that “provided other
indicia of reliability”).1
* * *
At bottom, we judge an affidavit “on the adequacy of what it does contain, not on what it
lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975. Here, the
mix of ingredients passes muster. The totality of the circumstances convinces us that this
affidavit demonstrated a specific and concrete nexus between 668 Eastlawn and the evidence
sought, and thus established probable cause for the search.
III.
Even if the affidavit was defective, the district court should have denied Hines’s
suppression motion because the officers “seized [the evidence] in reasonable, good-faith
reliance” on the search warrant. United States v. Leon, 468 U.S. 897, 905 (1984).
1The affidavit additionally informed that the surveillance team “observed [Hines] drive in a manner
consistent with narcotics traffickers” upon departing the liquor store for Legends by driving the wrong way down a
one-way street before entering an alleyway. The district court correctly noted that this observation has limited
corroborative effect because CS2 didn’t inform officers that Hines would drive like this. Still, that officers observed
Hines drive in a manner consistent with drug traffickers on the way to discuss a possible heroin shipment with CS2
is something we consider in our totality-of-the-circumstances approach to determining the sufficiency of the
affidavit.
No. 17-5893 United States v. Hines Page 9
A.
The Supreme Court created an exception to the exclusionary rule because “[c]ourts
should not . . . suppress ‘evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant.’” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004)
(en banc) (quoting Leon, 468 U.S. at 922). “Following Leon, courts presented with a motion to
suppress claiming a lack of probable cause must ask whether a reasonably well trained officer
would have known that the search was illegal despite the [issuing judge’s] decision. Only when
the answer is ‘yes’ is suppression appropriate.” United States v. White, 874 F.3d 490, 496 (6th
Cir. 2017) (internal quotation marks and citations omitted).
The good-faith exception is inapplicable in four circumstances:
(1) where the issuing magistrate was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard for the truth; (2) where the issuing magistrate wholly abandoned his
judicial role and failed to act in a neutral and detached fashion, serving merely as
a rubber stamp for the police; (3) where the affidavit was nothing more than a
“bare bones” affidavit that did not provide the magistrate with a substantial basis
for determining the existence of probable cause, or where the affidavit was so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable; and (4) where the officer’s reliance on the warrant was not
in good faith or objectively reasonable, such as where the warrant is facially
deficient.
United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006) (citing Leon, 468 U.S. at 923).
We review de novo the applicability of the good-faith exception. United States v. Abernathy,
843 F.3d 243, 257 (6th Cir. 2016).
B.
Neither the district court nor Hines suggests that Detective Evans misled the issuing
judge by including in the affidavit information he knew to be false. Nor do they contend that the
issuing judge simply rubber-stamped the affidavit out of a favorable predisposition toward law
enforcement. Rather, the district court eschewed applying the good-faith exception because
Detective Evans both wrote the underlying affidavit and executed it. According to the court,
“it was unreasonable for Detective Evans to have relied on the search warrant affidavit that he
No. 17-5893 United States v. Hines Page 10
himself prepared, as he was aware of its contents and should have known that more information
was required to establish the reliability of the confidential informants.” We conclude otherwise.
First, that Detective Evans both wrote the underlying affidavit and executed the search
warrant is not enough, standing alone, to preclude application of the good-faith exception. See,
e.g., United States v. Kinison, 710 F.3d 678, 686–87 (6th Cir. 2013). As the Government notes,
in past cases this court applied the good-faith exception where the affiant executed the search
warrant. E.g., Moore, 661 F.3d at 311, 314–15; United States v. McCraven, 401 F.3d 693, 695,
698 (6th Cir. 2005).
Second, this was not a bare-bones affidavit because it was not a conclusory affidavit.
White, 874 F.3d at 496. A bare-bones affidavit “asserts only the affiant’s belief that probable
cause existed. It provides nothing more than a mere guess that contraband or evidence of a crime
would be found, either completely devoid of facts to support the affiant’s judgment that probable
cause exists, or so vague as to be conclusory or meaningless.” Id. (internal quotation marks and
citations omitted). Both informants offered concrete information that tied drug-dealing to
668 Eastlawn in the days immediately preceding the warrant’s execution. CS1 saw heroin inside
668 Eastlawn the day before the search; CS2 told Detective Evans about his conversation with
Hines regarding a large quantity of heroin to be provided at 668 Eastlawn; and every time CS2
previously received heroin from Hines, it was at 668 Eastlawn. Such details make this affidavit
different from the one at issue in Mills v. City of Barbourville, 389 F.3d 568, 575–76 (6th Cir.
2004), which failed to state “why [the address] is being searched” or indicate that officers
“performed any investigation to determine whether plaintiff lived at” the address. United States
v. Baxter, 889 F.2d 731 (6th Cir. 1989), on which the district court relied, is similarly
distinguishable. There, the affidavit relied on a confidential informant who was simply an
anonymous caller. 889 F.2d at 733. This court would not apply the good-faith exception
because it found the affidavit to be bare-bones and determined that the officer “had to realize that
the source of the information against defendant was an unknown party who was unavailable and
could not be demonstrated to be ‘reliable.’” Id. at 734.
None of those problems plagues the affidavit or affiant in the instant case. Detective
Evans’s affidavit was not “so lacking in indicia of probable cause that, despite a judicial officer
No. 17-5893 United States v. Hines Page 11
having issued a warrant, no reasonable officer would rely on it.” White, 874 F.3d at 497 (citing
United States v. Helton, 314 F.3d 812, 824 (6th Cir. 2003)). And even if it did fall short of
establishing probable cause, this affidavit was not “completely devoid of any nexus” connecting
Hines’s house with illegal activity. Carpenter, 360 F.3d at 595. Indeed, this affidavit contained
more facts connecting 668 Eastlawn with evidence of drug trafficking than did the affidavit
upheld in Carpenter connecting a residence with marijuana patches. See id. at 593, 596
(affidavit based on pilot’s observation of road connecting marijuana plants and a residence
satisfied Leon good-faith exception).
The only precedent on which Hines relies to argue the unavailability of the good-faith
exception is the distinguishable United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996). The
affiant-officer in Weaver used a “preprinted affidavit” that “was composed of boilerplate text
with a few open spaces for” individuals’ names, a brief description of the house to be searched,
the word “marijuana,” and the date of the affidavit—in total, a classic bare-bones affidavit.
99 F.3d at 1375–76. Turning to the good-faith exception, the Weaver court explained that the
affiant-officer “should have realized that he needed to do more independent investigative work to
show a fair probability that this suspect was either possessing, distributing, or growing
marijuana,” given that he had “little firsthand information and no personal observations.” Id. at
1380. Here, however, Detective Evans corroborated these informants’ tips by independently
investigating Hines’s lengthy trafficking history and observing Hines leave 668 Eastlawn to meet
CS2 at Legends as CS2 said would happen.
* * *
“[T]he exclusionary rule is designed to deter police misconduct rather than to punish the
errors of judges and magistrates.” Leon, 468 U.S. at 916. The facts here do not engender fears
of police misconduct. Even if this affidavit did not establish probable cause, therefore, the fruits
of the search would nevertheless survive suppression through application of the good-faith
exception.
No. 17-5893 United States v. Hines Page 12

Outcome: For these reasons, we REVERSE the district court’s grant of Hines’s suppression motion and REMAND for proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: