United States v. McCoy

• Decision Date: 20 September 2018
• Docket Number: No. 17-4245,17-4245
• Citation: 905 F.3d 409
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Erik MCCOY; Derrick Heard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

905 F.3d 409

UNITED STATES of America, Plaintiff-Appellant,

v.Erik MCCOY; Derrick Heard, Defendants-Appellees.

No. 17-4245

United States Court of Appeals, Sixth Circuit.

Argued: July 30, 2018

Decided and Filed: September 20, 2018

Rehearing En Banc Denied October 31, 2018

ARGUED: C. Mitchell Hendy, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant. James E. Kolenich, KOLENICH LAW OFFICE, Cincinnati, Ohio, for Appellee McCoy. Travis T. Dunnington, RION, RION, & RION, L.P.A., INC., Dayton, Ohio, for Appellee Heard. ON BRIEF: C. Mitchell Hendy, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellant. James E. Kolenich, KOLENICH LAW OFFICE, Cincinnati, Ohio, for Appellee McCoy. Jon Paul Rion, RION, RION, & RION, L.P.A., INC., Dayton, Ohio, for Appellee Heard.

Before: GUY, BATCHELDER, and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

Police officers obtained a warrant, searched defendants’ home, and found over 2,000 grams of heroin, marijuana, drug-distribution paraphernalia, and a large amount of cash. Despite the search’s having been conducted under a judge-issued warrant, the district court suppressed the evidence, holding that because the warrant application so failed to connect defendants’ home with drug-trafficking activity, no reasonable officer could have relied on the warrant. The government appeals and argues that the police officers acted in good-faith reliance on the warrant, and so the evidence should be admissible against defendants.

We agree with the government. The police officers’ warrant application established enough of a basis to believe that at least one of the defendants was engaged in a continual, ongoing drug-trafficking operation and that therefore drug-related contraband was likely to be found in his home. Thus, we reverse the district court’s order suppressing the evidence.

I.

In fall 2016, officers of the Cincinnati Police Department began investigating a drug-trafficking lead. The lead came from a confidential informant’s¹ tip that defendants Erik McCoy and Derrick Heard (and their associate, Vincent Brown) were selling marijuana from two adjacent stores on Glenway Avenue. The informant reported that McCoy and Heard lived together in a home located at 10515 Hadley Road and that McCoy and Brown worked at the Glenway Avenue stores. The informant relayed having seen McCoy, Heard, and Brown in possession of marijuana and having observed marijuana and guns inside the 10515 Hadley Road home.

Based on the informant’s information, Officer Longworth began surveilling the Glenway Avenue stores. Over several days, he watched McCoy, Heard, and Brown come and go. He noted a "large amount of foot traffic [that he considered] consistent with drug trafficking." R.34-2, Affidavit for Search Warrant, Page ID# 135. And he discovered that McCoy and Brown had drug-trafficking criminal histories.

On October 14, 2016, Officer Longworth’s surveillance proved worthwhile. He was watching the stores when he saw Heard park illegally at a bus stop. As Heard and Brown exited the car, Officer Longworth’s fellow officers arrested Brown for suspicion of his having been involved in a robbery.² While Brown was being arrested, Officer Longworth entered the apparel store to question Heard about his parking violation. The officer spotted Heard walking out of an employee-only area of the store with a large bag of marijuana hanging from his pants.³ This bag, along with another (for a total of about two to three ounces of marijuana) and several hundred dollars were found on Heard upon his arrest. After arresting Heard, Officer Longworth confirmed that he had a drug-trafficking criminal history.

Based on Officer Longworth’s investigation, the circumstances of Heard’s arrest, and the information provided by the confidential informant, Officer Longworth obtained a search warrant for the Glenway Avenue stores (the "Glenway Avenue Warrant"). The search uncovered drug-distribution paraphernalia, gun accessories, and mail addressed to McCoy. Aside from finding the tools of the trade, however, law enforcement found no narcotics in the stores.

Officer Longworth then applied for a second warrant, this time for permission to search the house that the informant identified as defendants’, 10515 Hadley Road (the "Hadley Road Warrant"). The affidavit in support of the Hadley Road Warrant described Officer Longworth’s qualifications, the place to be searched (the home), the evidence sought (evidence of drug trafficking), and the following factual support:

• The confidential informant claimed to be "familiar with" the Glenway Avenue stores and to have had "personal relationships" with people associated with them. R.34-2, Page ID# 134–35. The informant reported that Heard, McCoy, and Brown sold marijuana from the stores. The informant also stated that McCoy and Brown worked at the stores. And the informant reported having seen Heard, McCoy, and Brown in possession of marijuana.

• Officer Longworth surveilled the Glenway Avenue stores several times and watched McCoy, Heard, and Brown enter and exit the stores. He also observed heavy foot traffic that he considered consistent with drug trafficking. On the day of the warrant application, Officer Longworth observed Heard park in front of the Glenway Avenue stores. Officer Longworth followed Heard into the store and eventually arrested him after spotting him exiting an employees-only section of the store in possession of one large bag of marijuana. When Officer Longworth searched Heard, he found another bag of marijuana and several hundred dollars in cash. McCoy also was present in the store during Heard’s arrest.⁴

• Law enforcement searched the Glenway Avenue stores and recovered evidence of drug trafficking—electronic scales, drug packaging materials, a handgun box, handgun ammunition, a handgun magazine, and mail addressed to McCoy.

• The same confidential informant informed Officer Longworth that McCoy and Heard lived together at 10515 Hadley Road, and the informant reported having seen marijuana, large amounts of money, and handguns inside the home.

• On the day of the warrant application, law enforcement surveilled 10515 Hadley Road and observed a car parked in the driveway registered to Heard.

• Officer Longworth confirmed that Heard and McCoy had drug-trafficking criminal histories.

The same magistrate judge who signed the Glenway Avenue Warrant executed the Hadley Road Warrant. The search of the residence uncovered about 2,200 grams of heroin, marijuana, an electronic scale, drug-packaging accessories, about $38,000 in cash, a handgun, and ammunition.

Shortly thereafter, Heard and McCoy were indicted on counts of conspiracy to distribute heroin and marijuana, operating a drug-involved premises, and possession of firearms in furtherance of a drug-trafficking offense. Defendants each moved to suppress the evidence obtained from the stores and the home. The district court upheld the warrant to search the stores as supported by probable cause. But the Hadley Road Warrant did not fare as well.

The district court determined that the affidavit in support of the Hadley Road Warrant failed to establish any connection between the alleged criminal activity and the home. The court then refused to apply the good-faith exception to the exclusionary rule, see United States v. Leon , 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), concluding that the lack of a nexus rendered the affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." R.45, Order, Page ID# 445–53. The court suppressed all evidence found at 10515 Hadley Road. And the government appealed.

II.

The issue before us is whether the district court erred in suppressing evidence discovered during the search of 10515 Hadley Road. We apply a mixed standard of review. We defer to the district court’s factual findings unless they are clearly erroneous, but we review de novo its legal conclusions, including its decision about whether the good-faith exception to the exclusionary rule applies. United States v. White , 874 F.3d 490, 495 (6th Cir. 2017).

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. This constitutional protection requires a government agent to support an application for a search warrant with a substantial basis linking the evidence to be seized and the place to be searched. United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (en banc). When a government agent fails to support his application with this showing of probable cause, a judge should refuse to issue the warrant.

But judges sometimes make mistakes. When this happens, law enforcement may obtain a warrant that it shouldn’t have obtained and search a place that it shouldn’t have searched. The exclusionary rule usually prevents the government from using illegally obtained evidence in a criminal proceeding against the victim of the unlawful search and seizure. See Illinois v. Krull , 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). A magistrate judge’s error in issuing a search warrant, however, does not always require suppression of reliable evidence. See United States v. McPhearson , 469 F.3d 518, 526 (6th Cir. 2006). In United States v. Leon , the Supreme Court created an exception to the exclusionary rule. 468 U.S. at 922, 104 S.Ct. 3405. The Court held that when an officer relies on a search warrant later invalidated, evidence obtained from the warrant-authorized search is admissible unless reasonable officers would not have believed the warrant constitutionally permissible. Id. As the Court explained, the judge issuing a warrant—not the officer applying for one—has responsibility for determining whether probable cause exists, and the rule excluding unlawfully obtained evidence has little...