Missed Opportunity to Resolve Recurring "Nexus" Question

Yesterday, in United States v. Reed, the Sixth Circuit declined to resolve a “recurring” Fourth Amendment nexus question: when police officers have probable cause that a person committed a crime away from their home, when may officers obtain a search warrant to search the person’s home?

In Reed, Memphis police officers suspected Reed of distributing marijuana. A detective filed three affidavits seeking search warrants for three locations: (1) a business, for marijuana, drug paraphernalia, and drug-related records; (2) Reed’s mother’s home for the same, which Reed’s driver’s license listed as his address and where a confidential informant made a controlled buy; and (3) Reed’s home, for financial records and drug proceeds. In the affidavit for Reed's home, the detective recounted his experience investigating drug crimes, the confidential informant’s controlled buys at the other location, and merely that he’d watched Reed leave this home. A state judge found probable cause existed to search all three locations.

After indictment, Reed moved to suppress evidence obtained from the search of his home, arguing the supporting affidavit failed to identify a nexus between drug dealing and his home. A magistrate judge recommended the district court deny Reed’s motion; the district court disagreed and suppressed the evidence because the affidavit contained no allegations that Reed conducted drug activity at his home.

On appeal, the government argued the district court should have applied Leon’s good-faith exception. The panel spends a considerable amount of time writing about conflicting principles of probable cause and its own conflicting case law. It acknowledges that on one hand, probable cause to arrest does not necessarily establish probable cause to search the home, as the inquiry is different: fair probability that a crime has been committed versus fair probability that the home will contain evidence of a crime. On the other hand, it says probable cause is a “practical” standard that rests on common-sense. Ultimately, the court declined to make a finding on whether there was probable cause to search Reed’s home (although, as Judge Clay aptly points out in his dissent, the majority opinion’s “lengthy discussion” of what is necessary for a sufficient nexus to the home “all but leads to the conclusion” that the majority believes probable cause existed), and found the good-faith exception should apply in light of the Sixth’s Circuit’s own “unsettled jurisprudence.” Essentially, the Sixth Circuit says “if we don’t know, how should police officers?”

Judge Clay’s dissent is worth the read – he points out that the majority essentially dispenses of the long-standing nexus requirement by impermissibly applying the good faith exception.  

The frustrating bottom line - the Sixth Circuit had the opportunity to settle their admittedly "unsettled" and conflicting jurisprudence, but relied on the good-faith exception to justify an insufficient affidavit to search a home. 

Here is a link to the opinion: https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0078p-06.pdf