USA v. David Church, Jr.
OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Richard Allen Griffin (CONCURRING IN THE JUDGMENT) and Raymond M. Kethledge (AUTHORING), Circuit Judges; and Robert H. Cleland, U.S. District Judge for the Eastern District of Michigan, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0120p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
DAVID DEWAYNE CHURCH, JR.,
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:13-cr-00067—Todd J. Campbell, Chief District Judge.
Argued: December 10, 2015
Decided and Filed: May 17, 2016
Before: GRIFFIN and KETHLEDGE, Circuit Judges; CLELAND, District Judge.*
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Philip H. Wehby, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Philip H. Wehby, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
KETHLEDGE, J., delivered the opinion of the court in which CLELAND, D.J., joined,
and GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 8–18), delivered a separate opinion
concurring in the judgment.
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
United States v. Church
KETHLEDGE, Circuit Judge. Search warrants target places, not people. David Church
opened his home to police and showed them that he had marijuana inside. Police received a
warrant to search the home for drugs. Church was later charged with drug distribution, and
moved to suppress evidence gathered in that search on the theory that police had cause to suspect
Church only of using drugs, not selling them. The district court denied Church’s motion, and
Church pled guilty. We affirm.
In August 2012 Nashville police detectives Jeff Moseley and Daniel Bowling went to
David Church’s home to serve him with a warrant for violating his probation. Church arrived at
his home shortly thereafter, carrying a bag of fast food. After Moseley and Bowling established
Church’s identity, they placed Church under arrest in his driveway. Church asked that he be
allowed into the house to eat his food and call his girlfriend; Moseley and Bowling obliged, and
accompanied Church inside with his consent. The detectives told Church that they smelled burnt
marijuana in the house, and Church admitted that he had recently smoked marijuana. He
proceeded to lead Bowling upstairs to show Bowling a marijuana blunt. Church then called his
girlfriend, who came to the house and told police that, despite her efforts to get him to stop,
Church regularly smoked marijuana at the house.
Moseley left the house to prepare a search-warrant affidavit while Bowling stayed with
Church and Church’s girlfriend. In his affidavit, Moseley recounted the detectives’ visit to the
house and their conversations with Church and his girlfriend. He swore that there was “probable
and reasonable cause to believe that [Church’s house] is/are now in possession of certain
evidence of a crime, to wit: violations of one or more of the following state laws as set forth in
TCA Sections 39-12-204 [RICO], 39-14-903 [Money Laundering], and 39-17-417 [Tennessee
Drug Control Act of 1989],” and he requested a warrant to search Church’s house for “controlled
substances, [and] controlled substances paraphernalia,” among other things. A state magistrate
United States v. Church
issued a search warrant based on Moseley’s affidavit. The police executed the warrant that
In an upstairs closet, they found 4.8 grams of marijuana and 8 dilaudid
(hydromorphone) pills, along with a safe. The police asked Church for the code to the safe.
Church refused to provide it, so police used a prying ram to break in. The safe contained 800
dilaudid pills, a Smith & Wesson .40-caliber handgun, and a box of ammunition.
Church thereafter sought to suppress the evidence collected by the government during the
search. The district court denied his motion. Church later pled guilty to possession with intent
to distribute hydromorphone and to being a felon in possession of a firearm. The district court
sentenced Church to 170 months’ imprisonment. He appeals the district court’s denial of his
motion to suppress.
Church argues that the warrant to search his home was defective because it was issued
pursuant to an affidavit that established probable cause for the wrong crime. He contends that “a
search warrant is plainly defective if it, based on a showing of probable cause of crime X,
authorizes a search for proof of crime Y.” Church Br. at 2. Specifically, he argues that the
search warrant issued here authorized a search for evidence of drug possession with intent to
distribute, whereas Moseley’s affidavit showed probable cause to search only for evidence of
simple possession. We review deferentially the magistrate’s decision to issue a search warrant,
and may second-guess that decision only where the magistrate exercised his authority
“arbitrarily.” United States v. Brown, 732 F.3d 569, 573 (6th Cir. 2013).
The Fourth Amendment guarantees 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. The amendment’s text makes clear
that “[s]earch warrants are not directed at persons; they authorize the search of ‘places’ and the
seizure of ‘things,’ and as a constitutional matter they need not even name the person from
whom the things will be seized.” Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978). It
follows that the “critical element in a reasonable search is not that the owner of the property is
United States v. Church
suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be
searched for and seized are located on the property to which entry is sought.” Id. at 556.
Thus, to establish probable cause for a search, an affidavit must show a likelihood of two
things: first, that the items sought are “seizable by virtue of being connected with criminal
activity”; and second, “that the items will be found in the place to be searched.” Id. at 556 n.6.
The nexus between “criminal activity” and the item to be seized is “automatic” when the object
of the search is “contraband.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967);
see also Black’s Law Dictionary 365 (9th ed. 2009) (defining “contraband” as “[g]oods that are
unlawful to import, export, produce, or possess”).
Marijuana is contraband because its
possession and production is prohibited under federal law and the criminal laws of most states,
including Tennessee’s. See 21 U.S.C. §§ 841, 844; Tenn. Code Ann. §§ 39-17-417, 39-17-418.
A police request to search for illegal drugs therefore needs to satisfy only the second
showing for a valid warrant: “a fair probability” that the drugs “will be found in a particular
place.” See Illinois v. Gates, 462 U.S. 213, 238 (1983). That standard is met where, for
example, the affiant swears that he has seen marijuana seeds and smelled marijuana smoke inside
the house to be searched. See United States v. Brooks, 594 F.3d 488, 494 (6th Cir. 2010); see
also United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004).
Moseley’s affidavit established that detectives had entered Church’s house and smelled
marijuana, that Church showed the detectives a marijuana blunt upstairs, and that Church’s
girlfriend thereafter confirmed that Church regularly smoked marijuana in the house. Thus, there
was an outright certainty, not just a “fair probability,” that the house contained illegal drugs. The
police got a warrant to search for illegal drugs in Moseley’s house, and they searched for drugs
in places where drugs might normally be hidden. Hence the search was lawful.
Church contends that the search was unlawful because Moseley specified in the affidavit
that the police were looking for evidence of drug distribution in violation of Tennessee Code
§ 39-17-417, whereas they had probable cause to search only for evidence of simple drug
possession in violation of Tennessee Code § 39-17-418. But drugs are contraband, and the
police have a right to seize them, pursuant to a search warrant, wherever they are likely to be
United States v. Church
present. For purposes of this warrant, therefore, it did not matter whether the police suspected
that Church possessed marijuana, dealt marijuana, or committed some other crime. See Zurcher,
436 U.S. at 555-56. What mattered was that there was a “fair probability” that marijuana was in
the house. United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009). Moseley’s affidavit left no
doubt of that probability.
There was no such probability in United States v. Hodson, 543 F.3d 286 (6th Cir. 2008),
which is the case that Church relies on here. That case concerned a warrant that authorized the
police to search for child pornography in the home of a suspected child molester. The court held
that evidence of child molestation, by itself, did not give cause to believe that the police would
find the contraband specified in the warrant—namely, child pornography—in the molester’s
home. See Hodson, 543 F.3d at 293. In this case, in contrast, a detective requested a warrant to
search for contraband in a place where the detective had already seen it. The facts here are
analogous not to Hodson, but to a case where the police stumble upon child pornography in a
home, and then ask a magistrate for a warrant to search the home for child pornography. The
difference between this case and Hodson, therefore, is simply that in this case the affidavit
established probable cause.
Church also argues that Moseley’s affidavit failed to establish probable cause because its
contents were “stale.” Church did not make this argument in the district court, so we review
only for plain error. See United States v. Soto, 794 F.3d 635, 650 n.11 (6th Cir. 2015).
To show probable cause that contraband is where an officer’s affidavit says it is, the
affidavit must contain statements of fact “so closely related to the time of the issue of the warrant
as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210
Because contraband is often moved from place to place, information about its
whereabouts can grow stale over time. Whether an affidavit’s information is stale enough to
preclude a showing of probable cause depends on the facts alleged in the affidavit. See United
States v. Spikes, 158 F.3d 913, 923-24 (6th Cir. 1998). Thus, for instance, where an affiant
swears that marijuana “is now” on certain premises, and there is no indication that the
United States v. Church
information is otherwise stale, the affidavit shows probable cause that the marijuana is where the
affidavit says it is. See United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). Likewise,
where an affidavit indicates that someone keeps “a ready supply of heroin” in his apartment, the
phrase “ready supply” shows that heroin is likely there now. See United States v. Williams,
351 F.2d 475, 476 (6th Cir. 1965).
Here, Detective Moseley’s affidavit provided every reason for the magistrate to think
there were drugs in the house at the time the warrant was issued. Moseley said that “David
Church uses this address,” that Church told the detectives that “he smokes marijuana in the
house,” and that Church’s girlfriend said that “Church does smoke marijuana in the residence
and . . . she has told him not to do so in the past.” That reference to “the past” would make little
sense unless Detective Moseley was describing events in the present tense.
therefore showed that Moseley was acting on fresh information.
Church contends that the affidavit is stale because Moseley did not recite the date on
which he was inside Church’s house.
But what counts is the affidavit’s content, not its
“technical perfection.” Brooks, 594 F.3d at 490. And here Moseley’s affidavit made clear that it
was not stale.
Finally, Church argues that the police acted unreasonably, in violation of the Fourth
Amendment, when they used a prying ram to open Church’s safe, thereby destroying it. We
review that argument de novo. See United States v. Winters, 782 F.3d 289, 295 (6th Cir. 2015).
Obviously the police had the right to open the safe. “[A] warrant that authorizes an
officer to search a home for illegal weapons also provides authority to open closets, chests,
drawers, and containers in which the weapon might be found.” United States v. Ross, 456 U.S.
798, 821 (1982). And “officers executing search warrants on occasion must damage property in
order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979). For example, if
a home’s occupant refuses to admit an officer after he announces his authority and purpose, the
officer may lawfully break open the door. See 18 U.S.C. § 3109; United States v. Ciammitti, 720
F.2d 927, 932-34 (6th Cir. 1983).
United States v. Church
Here, the police did not break open the safe capriciously: they had probable cause to
believe there might be drugs inside; Church refused to provide the safe’s combination; and thus
the police had no choice but to open it by force. The district court was right to hold that the
police acted reasonably when they did so.
The district court’s judgment is affirmed.
United States v. Church
CONCURRING IN THE JUDGMENT
GRIFFIN, Circuit Judge, concurring in the judgment. This appeal of the denial of
defendant’s motion to suppress raises troubling issues regarding the Nashville Police
Department’s use of overreaching boilerplate affidavits for requesting search warrants. In this
case, the Department secured a warrant to broadly search defendant’s home for evidence of
racketeering, money laundering, and drug trafficking based solely on defendant’s possession of a
small quantity of marijuana. Although I question the validity of the overbroad affidavit in cases
like this, I would affirm the district court’s denial of defendant’s motion to suppress under the
Leon1 good-faith exception because a reasonably well-trained officer would not have known that
the warrant lacked probable cause to search for evidence of drug trafficking.
On August 31, 2012, Detectives Jeff Moseley and Daniel Bowling of the Metropolitan
Nashville Police Department arrested defendant David Church, Jr. for failure to report to his
probation officer. Inside Church’s residence, the detectives smelled burnt marijuana. Church
admitted that he had smoked marijuana that morning and showed Detective Bowling a single,
burnt marijuana blunt.
When Church’s girlfriend arrived, she stated that Church smokes
marijuana in the residence against her wishes. Church does not challenge the admission of this
After Church refused consent to a search of the residence, Detective Moseley prepared an
affidavit for a search warrant using a pre-printed form. The boilerplate language at the top of the
[T]here is probable and reasonable cause to believe that [Church’s residence is] in
possession of certain evidence of a crime, to wit: violations of one or more of the
following state laws as set forth in TCA Sections 39-12-204 [RICO], 39-14-903
[Money Laundering], and 39-17-417 [Tennessee Drug Control Act of 1989], and
the evidence to be searched for is as follows: All controlled substances,
United States v. Leon, 468 U.S. 867 (1984).
United States v. Church
controlled substances paraphernalia, scales and mixing devices, packaging
materials, any equipment, devices, records, computers and computer storage
discs, to include the seizure of computers to retrieve such records, books or
documents adapted and used for the purpose of producing, packaging, dispensing,
delivering or obtaining controlled substances, or recording transactions involving
controlled substances, any indicia [of] ownership, dominion, or control over the
premises to be searched including rental receipts, mortgage payments, utility bills,
photographs of any persons involved in the criminal conduct, all financial records
pertaining to the disposition of the proceeds of the violation of the criminal laws
specified above, and any goods or personal property, including US currency or
negotiable instruments, constituting proceeds of a violation of the aforesaid laws
or funds used to facilitate the same[,] firearms, including handguns, pistols,
revolvers, shotguns, rifles, machine guns, and other weapons, and any evidence or
items which would be used to conceal the for[e]going or prevent its discovery.
Affidavit, R. 36-6, ID 84 (final three alterations added). In the section titled “Statement of Facts
In Support of Probable Cause,” Detective Moseley inserted the following three paragraphs:
I, your affiant, and [Metropolitan Nashville Police Department] Gang Unit Det.
Bowling went to 3219 Priest Woods Drive in an attempt to serve an outstanding
felony warrant on David Church m/b DOB: 1/15/1985. David Church uses this
address as his own address on his TN driver’s license. Det. Bowling and I
observed David Church drive up to the house and park his car on Priest Woods
Drive in front of the home. Det. Bowling and I were able to take David Church
into custody as he was on the sidewalk approaching the front door of this
residence. David Church gave police a false name and stated that he was not
David Church, but later admitted his real identity.
David Church had Krystal’s food in his hands as he was taken into custody, and
asked if he could please go in his house to eat his food and call his girlfriend
before he went to jail. Det. Bowling and I let David Church into this residence
using a key found on Church’s key ring. David Church was allowed to sit on the
couch in the first room to eat and call his girlfriend, and while doing so, Det.
Bowling and I detected a strong odor of marijuana coming from the residence.
Church admitted that he smokes marijuana in the house and showed Det. Bowling
where his marijuana blunt was in the upstairs bedroom. Church stated that he did
not want police to search the house and stated that the house is in his girlfriend’s
name, but that he does live there. David Church and I called his girlfriend,
Shanna Boyd, who stated that she would come home. I greeted Ms. Boyd outside
and she stated that she did not want police to search her residence. She stated that
Church does smoke marijuana in the residence and stated that she has told him not
to do so in the past.
The warrant was for Church’s failure to contact his probation officer. The affidavit does not indicate that
the underlying offense resulting in probation involved drug trafficking.
United States v. Church
Due to the odor of marijuana, along with both subjects’ admissions and the
evidence of drugs in the location, your affiant wishes to search the premises of
3219 Priest Woods Drive Nashville, TN 37214 and each person occupying said
premises and both vehicles that each subject drove to the house in. In your
affiant’s training and experience persons at locations where drugs are sold or used
many times conceal or secrete illicit items on their person to conceal them from
police detection. Your affiant has also learned in training and experience that
many times subjects at locations involved in illicit drug activity are also in
possession of weapons and or have outstanding warrants for their arrest.
Id. at 84−85. Also in the affidavit was a pre-printed section titled, “Experience and Basis of
Knowledge of Affiant,” which details Detective Moseley’s experience with “narcotics
trafficking” and “drug dealers,” including twelve “habits, characteristics, and practices of drug
traffickers and their organizations.” Nothing in that section draws a relationship between simple
possession and drug trafficking. Nor is the section unique to Detective Moseley’s experience
and knowledge given its pre-printed and generic nature.
A state court judge authorized the search warrant about two hours after Church’s arrest.
Seven officers executed the warrant. The search uncovered a single Dilaudid (hydromorphone)
pill in the living room, 4.8 grams (.169 oz.) of marijuana in a closet, and a locked safe. The
officers discovered that a key on Church’s key ring fit the safe door, but the safe also required a
passcode. When asked for the passcode, Church said he did not know it because the safe came
with the house. The officers pried the safe open. Inside, they discovered a loaded .40 caliber
handgun with a box of ammunition of .40 caliber rounds and 800 Dilaudid pills. Church does
not contest that the handgun and pills were his.
A federal grand jury indicted Church for (1) possession of a firearm as a felon,
(2) possession with intent to distribute hydromorphone, and (3) possession of a firearm in
furtherance of drug trafficking. Church moved to suppress the fruits of the search on several
grounds, including that the warrant did not establish probable cause for racketeering, money
laundering, or drug trafficking, and the officers violated the Fourth Amendment by unreasonably
destroying the safe.
United States v. Church
The district court held a suppression hearing and ruled from the bench:
The next issue I want to address is in terms of one aspect of the probable cause.
There clearly wasn’t probable cause to believe there was a RICO violation or
money laundering in this case. And to the extent that the supporting affidavit and
search warrant deal with RICO or money laundering, there is absolutely no
probable cause whatsoever to believe there was a RICO violation or money
laundering involved. And to the extent that the state court keeps issuing
boilerplate search warrants with those issues, they are out of line. They are
wrong, and it really needs to stop. There is not a basis to believe that there is a
RICO violation or money laundering in this case.
Nevertheless, with respect to probable cause for drug trafficking, the district judge stated:
And so the issue is whether [there was] probable cause for the issuance of the
warrant based on the smell with the blunt that was found and the admissions of
having smoked marijuana that day and having smoked marijuana in the house in
the past. I am finding that there is probable cause based on that to issue the search
warrant under a violation of the Tennessee Drug Control Act of 1989, as well as
Tennessee Code 39-17-417. I might add that the Tennessee Drug Control Act
controls all of Part 4, Title 39. For instance, the heading of 39-17-401 is headed
Tennessee Drug Control Act, and the Drug Control Act is not limited to Section
417. But in any event, possession, use and admissions of such and smell of
marijuana is sufficient to support probable cause for a warrant under Section 417.
The heart of the defendant’s argument is [United States v. Hodson, 543 F.3d 286
(6th Cir. 2008) and] that in this instance the argument is that there is only
evidence to support a possession charge, probable cause of that and not for
trafficking. The Hodson case dealt with child molestation versus child
pornography. Here all of the conduct qualifies under the Tennessee Drug Control
Act, so that is distinguishable on that basis.
The court therefore denied Church’s motion to suppress without reaching the government’s
alternative, good-faith exception argument.
Church conditionally pleaded guilty to Count One, possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924, and Count Two, possession with intent to distribute
hydromorphone, in violation of 21 U.S.C. § 841(a)(1). On appeal, Church challenges the district
court’s denial of his motion to suppress.
United States v. Church
Church’s primary argument is that the warrant was invalid because the affidavit did not
establish probable cause to search for evidence of the crime of drug trafficking, as opposed to
simple possession. We review the district court’s findings of fact for clear error and conclusions
of law de novo. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). “Whether a search
warrant affidavit establishes probable cause to conduct the search is a legal question that this
Court reviews de novo.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).
The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures” and 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.
“To establish probable cause adequate to justify issuance of a search warrant, the
governmental entity or agent seeking the warrant must submit to the magistrate an affidavit that
establishes a ‘fair probability that contraband or evidence of a crime will be found in a particular
place.’” Brooks, 594 F.3d at 492 (quoting Berry, 565 F.3d at 338). “Whether the affidavit gives
rise to this fair probability depends on the totality of the circumstances.” Id. (internal quotation
marks omitted). “When a warrant applicant seeks to search a specific location, the affidavit must
establish a ‘nexus between the place to be searched and the evidence to be sought.’” Id. (quoting
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)). “The critical element
in a reasonable search is not that the owner of property is suspected of crime but that there is
reasonable cause to believe that the specific things to be searched for and seized are located on
the property to which entry is sought.” Id. (citation omitted). The judicial officer issuing such a
warrant must “be supplied with sufficient information to support an independent judgment that
probable cause exists for the warrant.” Whiteley v. Warden, 401 U.S. 560, 564 (1971). “Mere
affirmance of belief or suspicion is not enough.” Nathanson v. United States, 290 U.S. 41, 47
(1933). Our review of the sufficiency of the evidence supporting probable cause is limited to the
four corners of the affidavit. United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013).
United States v. Church
The affidavit in this case raises serious concerns about whether probable cause existed to
search Church’s residence for evidence of drug trafficking, as opposed to mere possession.
Overbroad warrants can run afoul of the Fourth Amendment’s guarantees as they can authorize
carte blanche access to search for any evidence of any criminal activity. See United States v.
Hodson, 543 F.3d 286, 291−93 (6th Cir. 2008) (probable cause to search for evidence of one
crime is not probable cause to search for evidence of a different crime). In this case, we learn
that the Nashville Police Department apparently uses, and Tennessee magistrates apparently
accept, boilerplate affidavits authorizing broad searches for evidence of racketeering, money
laundering, and drug trafficking on mere evidence of possession of small quantities of marijuana.
Such use and acceptance―without specific facts linking drug possession to those crimes―is
troubling. Indeed, as the district court rightly observed, such overreaching is “out of line . . . and
it really needs to stop.”
Despite my concerns, I would not reach the question of whether probable cause existed
here because I would resolve this case under the Leon good-faith exception to the exclusionary
rule. When a search violates the Fourth Amendment, the fruits of the search are ordinarily
inadmissible under the exclusionary rule, “a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra,
414 U.S. 338, 348 (1974); see Mapp v. Ohio, 367 U.S. 643, 654−55 (1961). The “good-faith
exception applies when a warrant issued by a neutral and detached magistrate is discovered, after
the search, to have been nonetheless invalid―and, hence, the search unlawful―yet the officer
conducting the search acted in objectively reasonable reliance on that warrant.”
543 F.3d at 293 (internal quotation marks and brackets omitted). In establishing the good-faith
exception, the Supreme Court “based its refusal to suppress evidence in such situations on its
conclusion that ‘the marginal or nonexistent benefits produced by suppressing evidence obtained
in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the
substantial costs of exclusion.’” Id. (quoting United States v. Leon, 468 U.S. 867, 922 (1984)).
However, the Court stated that suppression remains appropriate if:
United States v. Church
(1) the magistrate was “misled by information in the affidavit that the affiant knew was
false or would have known was false except for his reckless disregard of the truth;”
(2) the magistrate “abandoned his judicial role” or neutrality;
(3) the warrant was “so lacking in indicia of probable cause” as to render official belief in
its existence unreasonable; or
(4) the warrant was so “facially deficient” that it could not reasonably be presumed valid.
Leon, 468 U.S. at 923.
In this case, Church argues that the warrant fails under the third exception: it was so
lacking in indicia of probable cause that the officers’ belief in its existence was unreasonable.
“Under this exception, the executing officer must have had ‘no reasonable grounds for believing
that the warrant was properly issued.’” United States v. Helton, 314 F.3d 812, 824 (6th Cir.
2003). “[T]he objective reasonableness determination does not examine the subjective states of
mind of the particular law enforcement officers conducting this particular search, rather it
inquires ‘whether a reasonably well trained officer would have known that the search was illegal
despite the magistrate’s decision.’” Leon, 468 U.S. at 923 n.23.
Church relies on Hodson, in which we held that the good-faith exception was
inapplicable because a “reasonably well trained officer” would have realized that there is a
difference between the crimes of child molestation and possession of child pornography.
543 F.3d at 293. In this case, however, there is a closer relationship between the crimes of
marijuana possession and marijuana trafficking than child molestation and possession of child
pornography. The distinction between possession and trafficking under Tennessee law is simply
the amount of marijuana possessed.3 And a warrant to search for evidence of possession
authorizes a search for contraband such as drugs and drug paraphernalia, which would also be
encompassed in a warrant to search for evidence of drug trafficking. Here, there is undisputed
evidence of drug activity inside Church’s residence, including a recently smoked marijuana blunt
In Tennessee, simple possession and drug trafficking are two separate crimes. Tennessee Code
Annotated § 39-17-417 prohibits the knowing manufacture, delivery, or sale of a controlled substances. Tenn. Code
Ann. § 39-17-417(a). It also prohibits the possession of a controlled substance with the “intent to manufacture,
deliver or sell” the controlled substance. Id. § 39-17-417(a)(4). By contrast, § 39-17-418 makes it a crime to
“knowingly possess or casually exchange a controlled substance” unless obtained pursuant to a valid prescription.
Id. § 418(a). The dividing line between the two crimes with respect to possession is one-half ounce or 14.175
grams. Compare Tenn. Code Ann. § 39-17-417(a), (g) (drug trafficking) with Tenn. Code Ann. § 39-17-418
(“simple possession”); see also State v. Englet, No. W1999-283-CCA-R3-CD, 2000 WL 556479, at *1 (Tenn. Crim.
App. May 8, 2000) (distinguishing the two crimes).
United States v. Church
observed by the officers and admission by Church’s girlfriend that Church smokes in the
residence. Moreover, in factually similar cases, we have upheld searches for evidence of drug
trafficking under the good-faith exception. See United States v. Hollin, 459 F. App’x 535,
539−40 (6th Cir. 2012) (observing that presence of “marijuana roaches offered a factual basis to
believe the Apartment contained contraband” and concluding that even if “probable cause was
ultimately lacking, it is unlikely that a reasonably well trained officer would have known that the
search was illegal despite the magistrate’s decision.”) (internal quotation marks omitted); see
also Brooks, 594 F.3d at 495−96 (White, J., concurring) (fruit of the search admissible under
good-faith exception where there were marijuana seeds in plain view and defendant had $1,000
in cash in his pocket). Thus, although this is a close case, I cannot conclude that a reasonably
well-trained officer would have known the search was illegal despite the magistrate’s decision to
issue the search warrant for drug trafficking.
Church next argues that the evidence should be suppressed because the warrant was stale.
Because Church did not raise this argument below, we review for plain error. United States v.
Soto, 794 F.3d 635, 655 (6th Cir. 2015). The burden is on Church “to show (1) error that (2) was
plain, (3) affected [his] substantial rights, and (4) seriously affected the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Ushery, 785 F.3d 210, 218
(6th Cir. 2015).
“The probable cause inquiry gauges the likelihood that evidence of a crime may presently
be found at a certain location. A warrant must be supported by ‘facts so closely related to the
time of the issue of the warrant as to justify a finding of probable cause at that time.’” United
States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006) (quoting Sgro v. United States, 187 U.S. 206,
210 (1932)). “The expiration of probable cause is determined by the circumstances of each case,
and depends on the inherent nature of the crime.” Id. (citations omitted). “Relevant variables
include the ‘character of the crime (chance encounter in the night or regenerating conspiracy?),
the criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable
or of enduring utility to its holder?), [and] the place to be searched (mere criminal forum of
convenience or secure operational base?).” Id. (quoting United States v. Spikes, 158 F.3d 913,
United States v. Church
923 (6th Cir. 1998)). Whether an affidavit is so stale that it fails to show probable cause to
support a search warrant is determined by the circumstances of each case, not by rigid rules. See
Spikes, 158 F.3d at 923−24.
In United States v. Hython, our court held that a warrant based on an undated controlled
buy of cocaine was invalid on staleness grounds. 443 F.3d at 485−87. Neither the warrant nor
the supporting affidavit specified the date of a controlled buy, and neither document supported
that the residence was a secure operational base of an ongoing drug enterprise. Id. at 487. We
also held the good-faith exception was inapplicable because an affidavit with an undated
controlled buy and “no indication of ongoing investigation, subsequent or previous controlled
buys, or further surveillance of the address . . . [was] patently insufficient. No well-trained
officer could have reasonably relied on a warrant issued on the basis of [such an] affidavit.” Id.
Church argues that the warrant is defective because Detective Moseley failed to date the
events in the affidavit. But a specific date is not always required. Rather, the information in an
affidavit must “clearly rebut any inference of staleness of information or lack of specificity of
the affidavit.” United States v. Williams, 480 F.2d 1204, 1205 (6th Cir. 1973) (per curiam); see
Hython, 443 F.3d at 486−87 (citing Williams).
For instance, where an affidavit says that
marijuana “is now” on certain premises, and there is no indication that the information is
otherwise stale, the affidavit shows probable cause that the marijuana is where the affidavit says
it is. See United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). Likewise, where an affidavit
indicates that someone keeps “a ready supply” of controlled substances in his apartment, the
phrase “ready supply” sufficiently communicates that there is a continuing presence of the
controlled substance in the apartment. See United States v. Williams, 351 F.2d 475, 476−78 (6th
In this case, Detective Moseley’s affidavit provided some reason for the magistrate to
understand that there were drugs in the house at the time the warrant was issued. For instance,
the affidavit recited that “David Church uses this address,” “he does live there,” and that Church
told police that “he smokes marijuana in the house.” It also said that Church’s girlfriend told
police that “Church does smoke marijuana in the residence and . . . she has told him not to do so
United States v. Church
in the past.” The reference to “the past” would make little sense unless Detective Moseley was
describing events in the present tense. A magistrate reading the affidavit would thus understand
that Detective Moseley was acting on fresh information. Detective Moseley’s affidavit is not a
model one. But Church’s argument that Detective Moseley “simply forgot to put specific dates
in his affidavit,” United States v. Thomas, 973 F.2d 1152, 1157 (5th Cir. 1992), is not fatal to the
warrant’s validity, at least under plain error review.
Church’s final claim of error is that the execution of the search was unreasonable.
Specifically, he maintains that the executing officers violated the Fourth Amendment by
destroying the safe containing the Dilaudid pills and handgun because the officers could have
contacted the safe manufacturer, rather than prying the safe open. If the warrant is valid, Church
does not dispute that the officers were authorized to search in the safe, but merely that
destruction of the safe was unreasonable. The district court found, under all the facts and
circumstances, that it was “reasonable to search the safe and necessary to break into it to search
it.” We review de novo. United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996).
We apply a “reasonableness” standard to determine whether destruction of property was
“reasonably necessary to effectively execute a search warrant.” Hill v. McIntyre, 884 F.2d 271,
278 (6th Cir. 1989) (citation omitted); see also United States v. Ramirez, 523 U.S. 65, 71 (1998)
(“The general touchstone of reasonableness, which governs Fourth Amendment analysis,
governs the method of execution of the warrant.
Excessive or unnecessary destruction of
property in the course of a search may violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to suppression.”) (internal citation
omitted). Nevertheless, “officers executing search warrants on occasion must damage property
in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979); see also
United States v. Whisnant, 391 F. App’x 426, 430 (6th Cir. 2010) (collecting cases).
The government argues the safe, and things likely to be stored in a safe, were within the
scope of the search warrant. “A lawful search of fixed premises generally extends to the entire
area in which the object of the search may be found and is not limited by the possibility that
United States v. Church
separate acts of entry or opening may be required to complete the search.” United States v. Ross,
456 U.S. 798, 820 (1982). “[A]lthough a warrant to search for a stolen vehicle would not justify
opening a small wall safe in a bedroom closet, judicial authorization to search a home for
contraband drugs, money associated with drug trafficking, and drug paraphernalia would clearly
justify the opening of doors, closets, drawers, safes, and other places where the listed items could
be hidden.” United States v. Lengen, 245 F. App’x 426, 434 (6th Cir. 2007). The government is
thus correct that guns and drugs, which are small enough to fit inside the safe and were in fact
found in the safe, were within the scope of the warrant. That the officers could have contacted
the manufacturer to open the safe without destroying it does not render opening of the safe
objectively unreasonable. Church cites no factually similar cases holding that, where alternatives
are available, the forcible opening of a container renders the search unconstitutional. The district
court did not err.
For these reasons, I concur in the judgment affirming the district court’s denial of
Church’s motion to suppress.
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