But weeks before the search, Burney moved into the Litchfield property. The police had no evidence that Burney was involved in the drug conspiracy--though they noted in the affidavit supporting the warrant application that Burney had five previous convictions for possession of crack (and that he remained on parole). Moreover, (as Judge White noted in dissent), the affidavit was ambiguous as to whether the police had observed Ross engage in any drug activity at the Litchfield property for months before Burney moved in. Hence, Burney argued that the police lacked probable cause to believe that evidence of crime would be found at the residence (and that any indication that evidence would have been found before Burney took up residence was stale).
The Sixth Circuit rejected Burney’s arguments: “Ross’s and Brown-Jennings’ many connections to the property, together with its having sat vacant for months and only recently having been occupied by a man with multiple drug convictions, made it reasonable to conclude that the property was one of Ross’s stash houses, so that there would be evidence of drug trafficking within it. This is so regardless of whether police had any evidence tying Burney to Ross.” Op. at 6. The majority relied: (1) on the police having seen Ross’s vehicle (though not Ross) at the Litchfield property at some point closer in time to the search; (2) on its finding that the Ross conspiracy was a large-scale drug trafficking and money laundering operation; (3) on its assessment that Burney had a propensity for joining large scale drug conspiracies because he had multiple convictions for possession of crack; and (4) on the fact that Brown-Jennings continued to hold title to the property and receive utility bills for it.
Noting that probable cause is “not a high bar” and that a magistrate’s probable cause assessment should be afforded “great deference,” the Sixth Circuit affirmed Burney’s conviction. Op. at 5 (citations omitted). In so doing, the Court illuminated how much deference it will afford police when a seemingly material change occurs (i.e, a change of occupants at a residence) before police apply for and execute a search warrant. In addition, the decision demonstrates a significant divide within the panel: Judge White, in dissent, found that the good faith exception could not rescue the search, but the majority found no reason to address the Leon exception.
The case discussed above is United States v. Burney, 14-3526 (6th Cir. February 19, 2015), and may be found here.