If at first you don't succeed

Every now and again a lawyer finds a way to snatch victory from the jaws of defeat. Case in point: United States v. Ricky Brown. You might remember this case from back in September 2015. Or more probably you don't remember it, because it was just another affirmance of the denial of a suppression motion -- a common sight in the Sixth Circuit. But Dennis Terez in the Cleveland Office of the Federal Public Defender and Melissa Salinas of the University of Michigan Clinical Law Program evidently did not see it that way.

This case presented a common fact pattern: Officers had probable cause to believe that Mr. Brown was a drug dealer, but no evidence that he used his home for dealing drugs. Nevertheless, they managed to get a search warrant for the home based on the hunch that there would be more drugs there. Back in September two judges (Judge Stranch and District Judge Black) were convinced that the drug dealing outside the home raised enough of a "reasonable inference" to justify a search warrant of the home. Judge Clay disagreed, noting that this question had already been decided by cases like United States v. Frazier, 423 F.3d 526 (6th Cir. 2005).

Mr. Brown's legal team sought en banc rehearing. Rather than grant such rehearing, the three-judge panel took the rare step of reversing itself and issuing an "amended opinion." Although authored by Judge Stranch, that opinion aligned with Judge Clay's dissent from September, noting: "[O]ur cases teach, as a general matter, that if the affidavit fails to include facts that directly connect the residence with the suspected drug dealing activity, . . . it cannot be inferred that drugs will be found in the defendant's home -- even if the defendant is a known drug dealer."

Quite a win for a case that many lawyers would have already written off as a loss.