Appeals Court: A Bunch Of Mostly-Irrelevant Information Is Not 'Probable Cause'

from the drug-warrior-enthusiasm-clouds-judgment dept

A drug conspiracy with no drugs. A house searched because a car carrying no drugs was registered to the address. It's little things like these that add up to a successfully suppressed evidence, even if it took defendant Ricky Brown a trip to the Sixth Circuit Court of Appeals to achieve it.

The DEA, working with Michigan State Police, pulled over two vehicles that had left a house they had under surveillance, apparently on their way to a heroin buy set up by an informant. One vehicle, a Chevy Silverado driven by Steven Woods, was searched after a MSP traffic stop and approximately 565 grams of heroin were recovered. The other vehicle, a GMC Yukon in which Brown was a passenger was stopped as well. However, there were no drugs in this vehicle, just four cell phones.

Despite this lack of evidence, the MSP booked both the vehicle's driver (Marzell Middleton) and Brown on charges of "conspiring to deliver drugs." Search warrants were obtained for both Brown and Middleton's residences, and 90 grams of heroin were found at Middleton's house.

The route to the search warrant for Brown's residence was a bit more circuitous. The idea to search Brown's residence was apparently predicated on little more than the fact that a vehicle he owned (another Yukon, but not the one that was being driven when both parties were arrested) was parked in Middleton's driveway while that residence was searched. From the decision [PDF]:

During their search of Middleton’s residence, the police also searched a 2002 GMC Yukon registered to Brown, which was parked on the street in front of the residence. MSP Trooper Unterbrink allowed a drug dog to walk around and climb into the vehicle. The dog alerted to the odor of narcotics inside Brown’s vehicle, but the affidavit does not indicate that any drugs were actually recovered. Agents seized the 2002 Yukon under Michigan forfeiture laws.

This was the first plank of the DEA's probable cause platform: the drug sniff that seemingly failed to turn up any drugs. The next was text messages on a prepaid cell phone containing the message "He said 1175 or 1125 for one," which Agent Fitch claimed was "consistent with Detroit-area pricing for cocaine." Also added to the affidavit were the results of a criminal record database search: an arrest (and an acquittal) for "delivery/manufacture of dangerous drugs" dating back to 1996 and a 1999 conviction for conspiracy to distribute marijuana.

Despite there being nothing linking Brown to the sale of heroin and his most recent conviction being 12 years old at that point, Agent Fitch somehow convinced a judge that a vehicle parked in the driveway of a house being searched was enough of a "nexus" to justify a search of the vehicle owner's home. This warrant was obtained three weeks after Brown's arrest and three weeks from the point Brown had been released after being charged, during which time neither the DEA nor the MSP performed any surveillance of Brown or his residence.

The DEA rolled up to Brown's house and searched it. Agents found some stuff, but nothing that would link Brown to heroin distribution.

DEA agents executed the search warrant at Brown’s residence on March 31. They found a nine-millimeter Smith and Wesson semiautomatic pistol, a loaded 12-gauge shotgun, and 60 grams of marijuana. They also recovered a digital scale, various forms of ammunition, $5,805 in cash, utility bills addressed to Brown, a Michigan certificate of title and insurance document for a 2002 GMC Yukon, and a hand-written document—purportedly a drug ledger—listing names and what appeared to be gram drug quantities. They did not find heroin or any other evidence linking Brown to a heroin conspiracy.

The district court refused to suppress the evidence, claiming the "four corners" made up for the deficiencies in the affidavit, and allowed the good faith exception to paper over the rest of the warrant's flaws. The government continued to pursue the heroin conspiracy charge, but the jury found nothing in the evidence to support it. Brown was acquitted on that charge but convicted on the firearms and marijuana possession charges.

The appeals court is less impressed with the government's attempt to spin nearly nonexistent threads into connective tissue.

In the present case, the search warrant affidavit contained no evidence that Brown distributed narcotics from his home, that he used it to store narcotics, or that any suspicious activity had taken place there. The affidavit did not suggest that a reliable confidential informant had purchased drugs there, that the police had ever conducted surveillance at Brown’s home, or that the recorded telephone conversations linked drug trafficking to Brown’s residence. The Government notes that Brown’s car, which was registered to his residence, was parked outside Middleton’s home and tested positively for narcotics during a canine search. Although these facts supported the search of Brown’s car, they did not establish a fair probability that evidence of drug trafficking would be found at his residence. A more direct connection was required, such as surveillance indicating that Brown had used the car to transport heroin from his home to Middleton’s on the day in question. The mere fact that the car was registered to Brown’s home was too vague and generalized a nexus to support the search warrant.

The government tried to salvage this by claiming Brown's status as a "known drug dealer" was all it really needed to obtain a search warrant of his residence. The appeals court disagrees.

Although this alone establishes that the warrant was issued without probable cause, we note that the evidence supposedly establishing Brown’s status as a drug dealer was also inadequate. The affidavit relied on the following facts to show that Brown was a known drug dealer: Brown was a passenger in Middleton’s car when the arrest was carried out. Police officers seized four cell phones from the car, two of which were believed to belong to Brown because they listed Middleton’s phone number as a contact. One of Brown’s alleged cell phones had a text message that said, “He said 1175 or 1125 for one,” which Agent Fitch alleged referred to local cocaine prices, not heroin. Brown possessed $4,813 in currency at the time of his arrest. Brown’s car was parked at Middleton’s residence and, during a search of Brown’s vehicle, a drug dog alerted to the odor of narcotics.

Although some of these facts suggest that Brown may have been involved in the heroin drug conspiracy—and thus established probable cause to arrest Brown—they are too inconclusive to assume, for the purpose of determining probable cause to search Brown’s residence, that he was a known drug dealer.

The court also denies the government's good faith appeal, finding that law enforcement had 22 days to put together something more resembling probable cause. The court wonders why the DEA -- if it felt it didn't have enough PC to pursue a search of Brown's house right after his arrest (the driver's house was searched the next day) -- suddenly felt it had enough evidence to support a warrant three weeks later, when literally nothing had changed in the interim.

It is hard to account for this delay, as little new evidence was discovered during that period: just a cryptic text message, which Agent Fitch concluded reflected pricing for cocaine—not heroin—and a conviction for conspiracy to distribute marijuana from 1999. Neither the text message nor the 12-year-old conviction was probative of whether Brown was using his current residence for drug trafficking…

Save for a passing reference to Brown’s car registration, the affidavit is devoid of facts connecting the residence to the alleged drug dealing activity. Although the good-faith standard is less demanding than the standard for probable cause, the affidavit still must draw some plausible connection to the residence. Agent Fitch’s affidavit failed to do so.

With the evidence suppressed, the convictions for marijuana and firearms possession vanish as well. Considering the Supreme Court recently decided old arrest warrants can salvage illegal searches, it's nice to know mostly-irrelevant criminal history isn't enough to turn a lack of probable cause into a good faith effort.

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  • identicon
    Anonymous Coward, 5 Jul 2016 @ 5:08pm

    "A Bunch Of Mostly-Irrelevant Information Is Not 'Probable Cause'"

    Well, according to Whatever a bunch of irrelevant rambling is a good argument.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 5 Jul 2016 @ 5:23pm


      According to the Supreme Court, making up a law because they don't actually know the laws they were hired to enforce is a good reason to pull any motorist over. Getting to probable cause is easy for them, so long as it doesn't take too long.

      It appears, however, that the average clueless cop on the beat can create probable cause better than these jokers.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 7 Jul 2016 @ 3:08pm

        Re: Re:

        If ignorance of the law coupled to good faith renders an illegal stop, illegal search or illegal arrest legal, then someone could make a good faith citizen's arrest of an officer and even if they were mistaken about the law, the arrest would still be valid due to good faith.

        After all, if ignorant good faith makes a bad arrest good, it must be pointed out that the average cop has FAR more training in the law than the average private citizen.

        reply to this | link to this | view in chronology ]

  • icon
    scotts13 (profile), 5 Jul 2016 @ 6:18pm

    Ill bet you...

    ...a whole internet cookie he didn't get the seized vehicle back, though.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jul 2016 @ 6:43pm

      Re: Ill bet you...

      But that's easily explainable, sir! The car was hanging out with known miscreants (that 1966 Mustang on your left, for example)!

      And it was a GMC Yukon, for god's sake! You know we couldn't afFord an Escape...

      reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 5 Jul 2016 @ 6:56pm

    Times like this that make me think of the states as a banana republic. Where the police and other gestapo esque agencies decide you are guilty before they even see any evidence that says your guilty or innocent.

    Who needs evidence when you know is a bad guy based on nothing but your gut right.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 8 Jul 2016 @ 5:37am

      Re: Trust your gut?

      The trouble is that most people do it. That's why we have dog whistle politics. Imagine a world in which critical thinking was the norm and empiricism was the rule; you'd do nothing without having enough evidence to claim probable cause and the case wouldn't even go to court because of lack of evidence.

      Heck, racism would fizzle out and...

      Ah, I'm dreaming again. But it was such a nice dream!

      reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 5 Jul 2016 @ 11:53pm

    There are things that bother me about the DEA and the original court that heard the case first. The DEA knew there were defenses but yet still filed for a got a warrant for a search.

    Then you have the court which it knows that the DEA has a ton of defenses in the warrant and their case and knows by law that the results of that search should be excluded due to the defenses in the original warrant application.

    The fact that the court knew that the evidence gathered as a result of the warrant should be tossed as a matter of law, decides to ignore that to help the DEA keep their case alive.

    The Judge is supposed to be unbiased and the defendants and plaintiff are to be treated equally and have their evidence evaluated by the laws on which it was obtained. The problem is too many Judges and courts seem to be more than willing to skip the being impartial part and do their best to help secure a conviction against an accused person.

    If the prosecution is unable to make their case according to the law, then that should be that. To have Judges take their impartiality out of the equation to help a case along is a travesty under the rules of court, the constitution and the rights afforded to an accused person.

    It's sad to see how much some court Judges have lost their ability to be impartial and fair and rule according to the law and not the fringes of it. It is why I say if your an accused you are no longer innocent until proven guilty but are guilty until you can prove your innocence and these days the deck is getting stacked more and more against an accused

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 6 Jul 2016 @ 1:58am

    Here's a solution....

    How about they just end this stupid War on Drugs and legalize everything... Other countries have done it and as a result crime, addiction, and overdose rates dropped significantly. It also alleviates the prison overcrowding issue and is in the best interest of harm reduction. The War on Drugs has always been a money grab for government to line their pockets with.

    reply to this | link to this | view in chronology ]

  • icon
    Adam (profile), 6 Jul 2016 @ 5:34am


    When is the last time we actually saw "innocent until proven guilty" demonstrated by ANYONE?

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 6 Jul 2016 @ 8:07pm

    How much is enough?

    reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 6 Jul 2016 @ 8:10pm

      Re: How much is enough?

      Okay, two oddities:

      1) If the cursor is in "Subject" and you accidentally press enter, the comment is published...
      2) ...Even if the comment body happens to be empty.

      reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 6 Jul 2016 @ 8:13pm

    How much is enough? (Take #2.)

    "But your honor! We copied pages and pages of junk into the warrant application! There's even whole books from the Bible! Surely that's worth some probable cause!"

    reply to this | link to this | view in chronology ]

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