How Much Detail is Required in a Search Warrant Affidavit? A Divided En Banc Court Discusses the Issue.

On September 3, 2015, an officer with the Grand Rapid Police Department applied for a warrant to search Defendant Tyrone Christian's residence located at 618 Grandville Avenue.  In his affidavit, the officer stated that: (a) Christian had a history of drug trafficking at the same residence, as evidenced by two prior raids at the residence and four felony drug-related convictions; (b) an informant had notified law enforcement in December 2014 that Christian was dealing drugs; (c) law enforcement conducted a successful controlled buy from him in nine months earlier; and (d) four sources told law enforcement they purchased drugs from Christian.  In addition, and in particular relevance to this case, the affidavit noted that law enforcement had established surveillance of 618 Grandville Avenue, and that during the surveillance, officers had witnessed someone walk away "from the area of [the residence]." After stopping the individual, subsequently identified as Reuben Thomas, officers found heroin in his car.  Although Thomas admitted to being on Grandville Avenue, the affidavit noted he denied being at Christian's residence, "contrary to law enforcement's observations."

A magistrate judge issued a search warrant for 618 Grandville Avenue based on the information contained in the affidavit.  The subsequent search led to the the seizure of narcotics and firearms from the residence and charges for possession of heroin with intent to distribute and being a felon in possession of a firearm for Christian.  

Christian subsequently moved to suppress the evidence seized from his apartment.  The District Court denied his motion, finding that the warrant was supported by probable cause, and, even if it was not so supported, the Leon good faith exception applied.

In United States v. Christian, the Court, sitting en banc, affirmed the District Court's order denying the motion to suppress.  Writing for the majority, Judge Rogers noted that the question of whether the affidavit demonstrated probable cause to support the warrant was "not even close." Judge Gilman , however, penned a vigorous dissenting opinion, joined by Chief Judge Cole,  and Judges Moore, Clay, Stranch, Donald, and White (in part), that would have reversed the District Court's decision.

Since much of the evidence cited in the affidavit was fairly attenuated to the date on which the search actually took place, the Court's decision focused primarily on the more recent surveillance that observed Thomas, subsequently found to have heroin, leave "the area of" 618 Grandville Avenue.  The Court noted that the affidavit did not need to definitively state that law enforcement saw Thomas leave 618 Grandville Avenue.  Instead, it only needed to provide sufficient evidence that there was a "reasonable probability" he did.  Under the totality of the circumstances, including Christian's prior drug convictions and previous controlled buys from the residence, the Court concluded there was a reasonable probability Thomas obtained the heroin from 618 Grandville Avenue and that the warrant was supported by probable cause.

In reaching this conclusion, the majority made several points as to how courts should approach search warrant affidavits.  Noting that police officers are not lawyers, the Court noted that probable cause is not a high bar and that courts should not engage in a hypertechnical review of search warrant affidavits.  Taking a "holistic approach," the Court noted, courts should examine affidavits for what they say, not what they do not say.  In this case, the affidavit said enough to establish probable cause.

Even if the search warrant was not supported by probable cause however, the Court noted that the District Court was correct to conclude that the Leon good faith exception would have applied.   The affidavit, the Court concluded, was far from the "short, conclusory, and selfserving" ones that do not fall under Leon.

In his concurring opinion, Judge Thapar argues the Court should overrule its decision in United States v. Laughton, which limits the Leon good-faith analysis to the affidavit's four corners.  Arguing that a four corners approach is contrary to both Leon and other Supreme Court precedent, Judge Thapar asserts there would have been no question as to whether the good-faith exception had applied if the District Court had considered evidence that was not included in the affidavit, including officers' observations that they saw Thomas and Christian interact on two occasions at Christian's house.

In his dissent, Judge Gilman sets forth, in painstaking detail, his position that the search warrant was not supported by probable cause because the information contained in the affidavit was not only stale but also did not establish a probability that drugs were located at 618 Grandville Avenue at the time law enforcement applied for and executed the search warrant.  Asserting that that the majority was misapplying its totality of the circumstances review in favor of laying "inference upon inference" to support the search warrant, Judge Gilman also examined each fact cited in the affidavit in support of the search warrant application.  Finally, Judge Gilman asserted that the good-faith exception did not apply because the affidavit did not establish a temporal nexus between Christian's residence and drug activity.

This opinion is particularly interesting in that it exposes the varying judges' positions about how much flexibility courts should demonstrate in examining search warrant affidavits.  In this decision, a majority of the judges take a more flexible approach, with at least four judges agreeing to overrule Laughton to allow consideration of evidence outside of the four corners of the affidavit in considering whether the good-faith exception applied.  However, seven judges would take a more critical approach to search warrants affidavits.  Counsel who are preparing appeals regarding search warrant issues should read this opinion and note the judges' varying positions.  

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