Today, a look at the Sixth Circuit's March 11 decision in United States v. Gilbert. (Your blogger has a bit more familiarity with this case than might be typical--he was counsel for the defendant on appeal.)
Gilbert sought to suppress evidence found when police searched his house, arguing that the warrant lacked probable cause and the good-faith exception did not apply--and more specifically, that even if there was some evidence that Gilbert sold drugs, there wasn't a sufficient "nexus" between drug trafficking and his home.
The Sixth Circuit moved directly to the good-faith exception, concluding that the exception applied. It relied on three sets of allegations in the search-warrant affidavit:
(1) "Gilbert had previously been convicted of drug trafficking and possession;"
(2) "Gilbert was party to a large drug transaction on August 27, 2016, and possessed 'a large quantity of cash' in his vehicle about two weeks later;" and
(3) "[L]aw enforcement discovered 'a large black vacuum bag with suspected marijuana crumbs,' 'recent mail addressed to Tyrone Gilbert,' and '[b]lack rubber gloves with residue' at this residence the day prior to seeking the search warrant."
Based on these allegations, the Court concluded: "Indisputably, these are facts. And importantly, these are facts that establish 'some connection' between the suspected drug trafficking and Gilbert's Yellowstone Road home, in light of the marijuana taken from Gilbert's trash at that address and his demonstrated history of drug trafficking."
Straightforward enough. So what was even the basis for the appeal? Well, our briefs focused on point (3) above--notice that, in the Court's three points, those are the only allegations with any connection to Gilbert's home (the "nexus" requirement). More specifically, we focused on the "suspected" marijuana crumbs (and, to a lesser extent, on the unknown "residue"). Were they indisputably facts?
Police found the suspected marijuana crumbs in Gilbert's trash in June 2017. As the Court notes in the factual background, that was the third trash pull police did at Gilbert's home, starting four months earlier. In the first, they found chrome scale weights, a vacuum sealed bag, and zip-lock bags, but they all tested negative for drugs. In the second trash pull, police didn't find anything suggesting that Gilbert sold drugs. In the third, they found the vacuum bag with "suspected" marijuana crumbs. Police then sought and obtained a search warrant before testing the crumbs to confirm that they were marijuana.
That became the core of our argument. An officer can't rely in good faith on a warrant when the supporting affidavit "merely states suspicions, beliefs, or conclusions," United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006), so was it enough for the officer to allege that Gilbert's trash contained "suspected" marijuana crumbs? And in particular, was it enough after the same officer had earlier suspected that his trash had drug paraphernalia, but testing didn't confirm his suspicions?
The Court didn't address this argument head-on, but concluded that the suspected marijuana crumbs in the search-warrant affidavit were enough to apply the good-faith exception.