Last week, the Sixth Circuit Court of Appeals issued a somewhat surprising opinion suppressing evidence in a federal drug case and reversing the defendant's conviction, finding the search warrant invalid because it lacked probable cause and the good faith exception did not apply. Though the opinion, authored by Judge R. Guy Cole, is unpublished, it provides a very good analysis of search warrant jurisprudence, citing many published opinions that may be of use to criminal defense practitioners.
In United States v Buffer, Docket No. 12-5052, Memphis police received an anonymous tip that drugs were being sold from a residence. Four days before the execution of a search warrant, the affiant observed "several visits" to the home that lasted approximately one to three minutes each. The affiant did not specify the exact number of visitors nor the span of time within which he made these observations. On the same day, the affiant stopped one of the visitors who the affiant claimed had engaged in a transaction at the house and found him to be in possession of a small amount of marijuana, the equivalent of one joint. This person was named in the affidavit.
Upon execution of the search warrant, the officers found numerous guns, marijuana and over $5,000.00 in cash. The district court denied his motion to suppress, holding that the search warrant contained sufficient probable cause, and, even if it did not, the good faith exception to the warrant requirement applied. Buffer plead guilty to the gun and marijuana counts, preserving his right to appeal the denial of his motion to suppress, and the district court sentenced him to 66 months incarceration.
The Court of Appeals reversed, holding the search warrant lacked probable cause primarily because anonymous tip is meaningless unless it is corroborated by an independent police investigation. The Court found here 1) the observations of frequent visitors to the home lacked specificity in that the affiant stated he observed only "several" visitors and provided no specific time frame other than the date; 2) the affiant provided no fact from which the magistrate could conclude whether the person they stopped with marijuana had actually gotten the marijuana from inside the residence or had had it on him prior to going to the residence (he also never admitted to buying the marijuana there). Therefore, because the anonymous tip had not been sufficiently corroborated by the independent police investigation, the search warrant affidavit lacked probable cause.
The good faith exception, under United States v Leon, did not save this search, because in order for the exception to apply, the affidavit must supply "a minimally sufficient nexus between the illegal activity and the place to be searched." Such a nexus was not established here and the Court, therefore, concluded that the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."
As I said earlier, the opinion is unpublished. However, I believe it is a very good analysis of the law as it relates to search warrants and the Court cites numerous published opinions in reaching the conclusion that the district court erred in denying the motion to suppress. Buffer was represented on appeal by Lee Gerald of Memphis.