In United States v. Abernathy, the Sixth Circuit considered the denial of a motion to suppress stemming from the search of a residence. Officers obtained a search warrant after conducting a trash pull outside Mr. Abernathy's home. That trash pull yielded marijuana roaches and T2-laced plastic bags.
The search warrant affidavit included the statement that the occupants of a residence were "currently engaged in illegal activity." At the Franks hearing that followed, the detective affiant admitted he had no information that anyone was selling drugs out of the residence, had no direct evidence of drug trafficking, and had not seen Mr. Abernathy do anything connected to his residence and drug dealing. While the district court struck the statement in the affidavit as misleading, it ultimately upheld the search warrant, finding that a trash pull alone established probable cause.
The Sixth Circuit considered for the first time whether a trash pull, standing alone, can establish probable cause to search a home. Relying on previous decisions that hinted as much in dicta, the Sixth Circuit held the trash pull alone "did not create a fair probability that drugs would be found in Defendant's home." The Sixth Circuit also found the good faith exception did not apply to the search, particularly in light of the Franks violation.As a result, the district court erred in denying Mr. Abernathy's motion to suppress.