RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0044p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 03-3989
v.
,
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ANDRE JENKINS; NATHANIEL S. THOMPSON, -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 03-00112—Lesley Brooks Wells, District Judge.
Argued: September 24, 2004
Decided and Filed: January 28, 2005
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Samuel A. Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for
Appellant. Thomas S. Hudson, Sarasota, Florida, Roger M. Synenberg, LAW OFFICES OF
ROGER M. SYNENBERG, Cleveland, Ohio, for Appellees. ON BRIEF: Samuel A. Yannucci,
ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellant. Thomas S. Hudson,
Sarasota, Florida, Roger M. Synenberg, LAW OFFICES OF ROGER M. SYNENBERG, Cleveland,
Ohio, for Appellees.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendants-appellees Andre Jenkins and
Nathaniel Thompson, charged with possession with intent to distribute cocaine, moved to suppress
evidence obtained during two searches. The district court granted the defendants-appellees’
motions, and the government appeals. The government argues that the district court erred in
suppressing the evidence, as the evidence is admissible under the independent source doctrine, under
the good faith exception to the warrant requirement, or because it was obtained through a search
based on a valid warrant. For the reasons set forth below, we reverse the district court’s ruling
suppressing the evidence obtained from both searches and remand the case for trial on the merits.
1
No. 03-3989 United States v. Jenkins, et al. Page 2
I.
At 10:28 p.m. on February 13, 2003, Andre Jenkins and Nathaniel Thompson entered the
Holiday Inn in Beachwood, Ohio. In the course of renting a room, Thompson offered his
identification to the front office manager, Robert Jeffries, who made a photocopy of the ID and
noted that it identified Thompson as a local resident.1 After paying cash to rent Room 127 for two
nights, the two men unloaded what appeared to the office manager to be very heavy bags from their
Ford Explorer onto a luggage cart, which they then took to the room. Jeffries found these
circumstances to be suspicious, so he contacted John Kornek, a Beachwood police officer and
member of the Ohio High Intensity Drug Trafficking Area (HIDTA) Task Force, and reported the
activities of the two men as well as the license plate number of the Explorer. Members of the
HIDTA Task Force had asked Jeffries to report any suspicious behavior among guests at the hotel,
and Jeffries had done so numerous other times over the previous year and a half.
Officer Kornek immediately called Officer Kevin Grisafo, another policeman and member
of the HIDTA Task Force, and suggested that he go to the Holiday Inn to follow up on Jeffries’s
report. Officer Grisafo noted that Room 127 had a do-not-disturb sign on the door, and he ran
checks on Thompson and the Explorer. Thompson had been arrested twice for drug-related offenses
and had a conviction for carrying a concealed weapon. The Explorer was registered to Bonnie Jones
at 11906 2Imperial, in Cleveland, who herself had a criminal record (including drug-related
offenses). Officer Grisafo acquired the room across the hall from Room 127 for surveillance
purposes, and he contacted IRS Agent Mark Kahler, who sent three HIDTA Task Force agents to
staff the surveillance room. Officer Grisafo parked across the street from the hotel. At
approximately 4:25 a.m., he saw a Suburban pull into the hotel parking lot, circle through the lot,
exit the lot, and then reenter the lot, dropping off a woman at the lobby. The Suburban again exited
the lot and parked across the street at another hotel, even though there was ample parking at the
Holiday Inn. The driver walked quickly back to the Holiday Inn and entered through a locked hotel
entrance, using a room key. He met the woman he had dropped off in the lobby, and together they
entered Room 127. Officer Grisafo ran a check3on the Suburban, tracing it to Lacell Torrence, who
himself had a number of arrests on his record. At about 8:30 a.m. on February 14, a police dog
gave a positive indication for the presence of narcotics in the Suburban. Around noon that day, the
driver of the Suburban walked out of the room and left the hotel carrying several towels. FBI Agent
Kenneth Riolo approached the individual, who identified himself as Andre Jenkins and stated that
he had been applying for a job “across the street.” Mr. Jenkins denied that he had been in the
Holiday Inn with a female, denied that he had any contraband on him, and gave permission for
Agent Riolo to search the car. Agent Riolo and other officers searched Mr. Jenkins, who had a small
bag of marijuana, $1500 in cash, two cell phones, and a pager on his person. The officers did not
search the car. Agent Riolo believed the woman in the room might have seen the search of Mr.
Jenkins through the window, so he advised other HIDTA Task Force officers on the scene to secure
Room 127 to prevent the destruction of evidence and to further “officer safety.”
Throughout the morning and during this time, Officer Grisafo had been passing on
information to IRS Agent Mark Kahler at the HIDTA Task Force office so that Kahler could prepare
an affidavit for a search warrant covering the Suburban and Room 127. Meanwhile, after Jenkins
1
Neither Jeffries nor any law enforcement personnel knew that the other man was Andre Jenkins until he was
arrested the next day.
2
Jones testified that she has never been arrested or convicted, explaining that her criminal record nonetheless
includes several offenses because her sister used her name in committing those crimes.
3
Officer Grisafo testified that Mr. Torrence had a “long history of drug offenses,” but his record included only
a series of arrests, not convictions, and only one was drug-related.
No. 03-3989 United States v. Jenkins, et al. Page 3
was searched, officers entered Room 127, although witness accounts of their entry differ. Officers
Grisafo and Kornek testified that they, along with another officer, knocked on the door, and the
woman, who identified herself a few minutes later as Joyce Bell, let them in after being informed
the police were in the process of getting a search warrant and wanted to secure the room. Bell,
however, testified that a female housekeeper, who she saw through the door’s peephole, knocked
on the door instead of the officers. Bell stated that she cracked open the door to retrieve towels from
the housekeeper, but the officers then “busted in the room,” knocking her onto the floor of the closet
with the door. She also testified that a gun was pointed at her.
Regardless, all witnesses agreed that Bell was only partially clothed, and Officer Kornek
took her to a chair in the back of the room so that she could get dressed. He checked the chair and
her clothes for weapons and asked if she would consent to a search of the room, including three bags
of luggage stacked against the wall and an apparently empty bag lying beside them. Bell agreed,
indicating that neither the hotel room nor the bags were hers. Bell and Kornek both testified that
at the time of the officers’ entry into Room 127, the bags were stacked against the wall (where one
could not see inside them), and neither Bell nor Kornek touched the bags or saw any of the other
officers touch them. Nevertheless, when Officer Grisafo, who had remained by the doorway inside
the room while Bell gave consent to search the room, entered the room, he saw one of the bags on
the bed, “wide open,” “unzipped enough where it was pulling apart,” with “brick-type items in there
wrapped in cellophane.” Officer Kornek agreed that at some point one of the bags was moved to
the bed, where it lay partially open, but he did not know how the bag was moved.
The only witness to testify that he touched the bags was Agent Riolo, who entered the room
about five minutes after the officers’ initial entry. After being told that Bell consented to a search
of the room and its contents, and noting that the room key sat on the counter between the beds, he
announced that the officers should wait for a warrant to search the room.4 Riolo also testified that
when he entered the room, at least one of the bags lay on the bed, with the zipper partially open,
exposing some orange brick-shaped items. Riolo proceeded to pick up all of the bags and feel them,
noting that they were full (of “bricks”) and very heavy. On cross-examination he explained his
decision to touch the bags before the warrant was issued: “I just felt I should touch them and see
what there was inside. If it was soft and it was clothes, or maybe I just wanted to feel them and see
how heavy they were and get that information back to Mr. Kahler,” the agent preparing the warrant
affidavit.
When Agent Riolo entered the room, Officer Grisafo left to meet Agent Kahler at the HIDTA
Task Force office to review the affidavit (which Kahler had evidently completed) for accuracy.
Before Grisafo arrived, Kahler was informed that there were bricks in the bags,5 but Kahler decided
to exclude this information and the information provided by the confidential informant (Jeffries)
from the affidavit, both to protect the identity of the source and because the affidavit was “more than
sufficient” without that information. On the way to the Cuyahoga County courthouse to have a
magistrate sign the warrant, Kahler conferred by phone with an Assistant County Prosecutor, who
advised him to make sure that the judge was aware that the officers had already secured Room 127.
When Kahler and Grisafo met with Judge Brian Corrigan, Kahler “informed him of the probable
cause within the warrant as well as probable cause not in the warrant.” In other words, Kahler and
Grisafo orally informed the judge about the brick-shaped packages in the open bag on the bed, as
well as about the manner in which Jenkins and Thompson checked into the hotel, even though this
4
At about this time, Bell was taken from the room to the Beachwood jail. She testified that before she left, she
saw the officers opening drawers and looking behind curtains but did not observe them take any other actions inside the
room.
5
Although it is unclear from the record, it appears that Riolo called Kahler after Riolo felt the bags to let Kahler
know of the bricks inside.
No. 03-3989 United States v. Jenkins, et al. Page 4
information was not in the affidavit. Kahler also told the judge that officers had secured Room 127.
When asked at trial whether he thought the oral information affected the judge’s decision to issue
the warrant, Agent Kahler stated:
A: Well, to the best of my ability, I felt the warrant stood on its own. Did it affect
his decision? I felt going through the probable cause of what we had in the warrant
affected his decision.
Q: Including the fact that you told him orally that there were brick-shaped objects?
A: Yes, but I first went over what’s in the warrant and then I went over here’s what’s
not in the warrant....[I]f I thought it affected his decision as much as occurred in the
past, he would have instructed me to add a paragraph.
At about 1:30 p.m., the6 judge “swore [Officer Grisafo] to the information that had been provided and
signed the warrants.” Officer Grisafo immediately called Riolo to let him know the warrant had
been signed. While Grisafo and Kahler were still in the judge’s chambers, Riolo searched the bags
and informed Grisafo, Kahler, and the judge that the bags contained roughly seventy kilos of
cocaine.7
Later in the day on February 14, Cuyahoga County Corrections Officer Eugene Sanchez
booked Andre Jenkins at the county jail. Jenkins repeatedly asked Sanchez if he could make a
phone call, but Sanchez was under orders to not allow Jenkins to use the phone. Sanchez eventually
told Jenkins he would make a call for him, at which point Jenkins wrote a name and number on a
piece of paper and told Sanchez three times “to let Bon know to clean up, they are coming.”
Sanchez immediately passed on this information and the piece of paper to Officer Kornek, who
traced the number to a Mr. Jones at 11906 Imperial in Cleveland, the same address to which the
Explorer driven by Jenkins and Thompson was traced. Based on this information, the information
contained in the affidavit for the warrant for Room 127, and other information gathered by various
law enforcement officials that day, Agent Kahler and Officer Randy Wilson prepared an affidavit
and search warrant for 11906 Imperial. In the affidavit, Wilson reported the message from Jenkins
to Sanchez as “get the shit out as the police [are] coming.” Wilson testified at trial that he could not
recall whether those were the exact words relayed to him, but he said they were at least very similar
to what he was told by another officer. At approximately 10:00 p.m. on February 14, Judge
Corrigan signed the warrant for 11906 Imperial; it was executed later that evening. The search of
the residence yielded a Rolex watch, two firearms, and $68,000 in cash, among other items.
On March 18, 2003, defendants-appellees Andre Jenkins and Nathaniel Thompson were
indicted for possession with the intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1)–(b)(1)(A) and 18 U.S.C. § 2. On April 17, 2003, defendant-appellee Jenkins moved to
suppress the Rolex, firearms, and cash seized during the search of 11906 Imperial. On May 8, 2003,
defendant-appellee Jenkins moved to suppress the cocaine seized in Room 127 of the Holiday Inn.
On May 16, 2003, defendant-appellee Thompson also moved to suppress the cocaine. The district
court granted all three motions to suppress on June 15, 2003. The government appealed from the
order of suppression on July 11, 2003.
6
Officer Grisafo testified that the judge had him “swear to everything I told him orally and what was written
out.”
7
There were seventy-three kilos of cocaine in the bags.
No. 03-3989 United States v. Jenkins, et al. Page 5
II.
This court reviews a district court’s decision on a motion to suppress under two standards.
“Findings of fact are upheld unless clearly erroneous, while conclusions of law are reviewed
de novo.” United States v. Leake, 95 F.3d 409, 416 (6th Cir. 1996).
A.
The government first argues that the cocaine is admissible under the independent source
doctrine. Application of the independent source doctrine is a mixed question of law and fact that
is reviewed de novo. Id.
The independent source rule holds that evidence will be admitted if the government shows
that it was discovered through sources “wholly independent of any constitutional violation.” Id. at
412 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). In deciding whether the independent
source rule allows the admission of evidence that would otherwise be excluded, courts “should keep
in mind the underlying question: ‘whether, granting establishment of the primary illegality, [the
evidence has] been come at by the exploitation of the illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’” Id. (quoting Wong Sun v. United States, 371 U.S.
471, 488 8(1963)). Since Agent Riolo’s touching of the bags before the warrant issued was
unlawful, the question is whether application of the exclusionary rule to the cocaine would put the
police in the same, but not a worse, position than they would have been absent any error or
misconduct. See Nix, 467 U.S. at 443. If it would put the police in a worse position, in that the
cocaine was nonetheless discovered through sources “wholly independent of any constitutional
violation,” then the independent source doctrine applies. Leake, 95 F.2d at 412; see Murray v.
United States, 487 U.S. 533, 541 (1988).
According to Murray, a subsequent search pursuant to a warrant would not be an
independent source of evidence unearthed by a previous search if the information obtained during
the first search was “presented to the Magistrate and affected his decision to issue the warrant.” Id.
at 542. In Murray, the police illegally searched a warehouse but then prepared a warrant based only
on their observations before the illegal search. Id. at 535-36. The Court remanded the case for
determination of whether the warrant for the second search resulted from information independent
of the illegal search. Id. at 543-44. A strict application of Murray’s test of whether information
from the first search affected the magistrate’s decision, without consideration of other authorities
and the underpinnings of the Murray reasoning, might well suggest that the district court’s
suppression of the cocaine was correct. After all, the information from Riolo’s unlawful inspection
of the bags in Room 127 (as well as from the confidential informant) was presented to the judge at
the time the affidavit was presented, and while it is impossible to know whether the oral information
“affected” the judge’s decision in some way, one would think it likely. Agent Kahler himself
testified that he felt that the information the officers told Judge Corrigan affected his decision.
All courts of appeals to have considered the matter, however, have interpreted Murray to
mean that, in these situations, for evidence to be inadmissible due to the government’s failure to
collect it via an independent source, the tainted information presented to the judge must affect the
judge’s decision in a substantive, meaningful way. See, e.g., United States v. Herrold, 962 F.2d
1131, 1141 (3d Cir. 1992). Under this interpretation of Murray, the simple fact that an application
for a warrant contains information obtained from an illegal search does not by itself signify that the
independent source doctrine does not apply. Id. If the application for a warrant “contains probable
8
The picking up and squeezing of bags is a search for Fourth Amendment purposes, see Bond v. United States,
529 U.S. 334, 337-39 (2000), and the government conceded at oral argument that Agent Riolo’s warrantless search was
unlawful.
No. 03-3989 United States v. Jenkins, et al. Page 6
cause apart from the improper information, then the warrant is lawful and the independent source
doctrine applies, providing that the officers were not prompted to obtain the warrant by what they
observed during the initial entry.” Id. at 1141-42. Other circuits have joined the Third Circuit and
interpreted Murray in the same way, and no circuit has taken a contrary approach. See, e.g., United
States v. Markling, 7 F.3d 1309, 1315-16 (7th Cir. 1993) (considering whether probable cause
remained after purging tainted information from a warrant and noting that “[t]his is the approach
federal courts...typically take” in applying Murray); United States v. Restrepo, 966 F.2d 964, 968-70
(5th Cir. 1992) (interpreting Murray to mean that “evidence obtained in an illegal search is first
excised from the warrant affidavit, after which the expurgated version is evaluated for probable
cause”); United States v. Halliman, 923 F.2d 873, 880-81 (D.C. Cir. 1991) (finding that despite the
inclusion of tainted information in a warrant application, “there [were] overwhelming independent
grounds for probable cause” in the application); United States v. Gillenwaters, 890 F.2d 679, 681-82
(4th Cir. 1989) (setting aside facts illegally obtained from the rest of the information in an affidavit
and then examining the affidavit for probable cause); United States v. Veillette, 778 F.2d 899, 903-
04 (1st Cir. 1985) (same).
The rationale for explicitly linking the Murray independent source rule with the approach
of considering the sufficiency of the untainted affidavit, as other circuits have done, is sound and
consistent with the rationale underlying Murray. The idea behind Murray and related cases is that
police who carry out a search that they should not have carried out should be put in the same, but
no worse, position than they would have been absent any error or misconduct. See Murray, 487 U.S.
at 541; Nix, 467 U.S. at 443. Invalidating a search warrant because the magistrate was affected in
some minor way by tainted information, when the warrant would have been granted even without
the tainted information, would put the police in a worse position than they would have been in had
they not presented the tainted information to the magistrate. In addressing an analogous situation,
the Supreme Court in Franks v. Delaware, 438 U.S. 154, 171-72, 172 n.8 (1978), suggested that
false or reckless statements in a warrant should be set aside and that the warrant should then be
examined to determine “if what is left is sufficient to sustain probable cause.” Since “[k]nowingly
including a false statement in a warrant affidavit seems the functional equivalent of (if not an even
more serious transgression than) including in the affidavit knowledge of facts illegally obtained,”
see Veillette, 778 F.2d at 904, then it makes sense to deal with cases such as the present one in the
same fashion utilized by the Supreme Court in Franks. See also United States v. Johnston, 876 F.2d
589, 594 (7th Cir. 1989) (Posner, J., concurring) (noting that the Supreme Court in Franks assumed
without holding that “a search warrant procured on the basis of an affidavit that contains unlawfully
obtained information is nevertheless valid if the lawfully obtained information in the affidavit is
sufficient by itself to establish probable cause for the search” and collecting cases concurring in this
rule).
The approach adopted in Herrold and other cases of considering the sufficiency of probable
cause in a warrant after removing the “taint” has been applied by this court. In United States v.
Shamaeizadeh, 80 F.3d 1131, 1136 (6th Cir. 1996), we articulated a principle we referred to as
“closely resembl[ing] the independent source rule” and held that “[w]hen a trial court is presented
with a redacted affidavit, it must review each portion of that affidavit so that the reviewing court
may determine whether the untainted portion of the affidavit . . . sufficiently supported a finding of
probable cause.” (citation and quotation marks omitted). We further stated that, “[i]rrespective of
the legality of the initial [action], we can nevertheless examine the balance of the underlying search
warrant affidavit for probable cause in order to determine whether the lawfully obtained evidence
was sufficient to determine that the search and seizure should be upheld.” Id. (citations and
quotation marks omitted); see also United States v. Black, 8 Fed. Appx. 408, 411-13 (6th Cir. 2001)
(relying on Herrold to strike factual averments “tainted” by an illegal search from an affidavit and
holding that probable cause existed even without that information); cf. United States v. Dice, 200
F.3d 978, 985-86 (6th Cir. 2000) (holding that violation of knock-and-announce rule during
No. 03-3989 United States v. Jenkins, et al. Page 7
execution of valid search warrant precluded application of the independent source rule to evidence
seized in search following violation).9
This court also adopted a similar approach in pre-Murray cases. For instance, in United
States v. Smith, 730 F.2d 1052, 1056 (6th Cir. 1984), two defendants argued that an affidavit in
support of a search warrant contained information obtained during an illegal search incident to the
arrest of one of the defendants. The court did not decide whether the search during the course of the
arrest was impermissible, finding that even if it were, there was sufficient probable cause for the
search warrant to issue based upon pre-arrest observations. Id. The court stated:
[I]t is well settled that: when a search warrant is based partially on tainted evidence
and partially on evidence arising from independent sources, if the lawfully obtained
information amounts to probable cause and would have justified issuance of the
warrant apart from the tainted information, the evidence seized pursuant to the
warrant is admitted.
Id. (citations and quotations omitted). Likewise, in United States v. Korman, 614 F.2d 541, 547 (6th
Cir. 1980), the defendant argued that certain evidence obtained as a result of an allegedly illegal
initial search of the defendant’s residence was included on an affidavit for a search warrant of that
residence. This court held that irrespective of any illegally obtained information in the affidavit,
there was sufficient “independent and legitimately obtained evidence” to establish probable cause.
Id.
In sum, authority from this and other circuits, as well as the principles underlying the Murray
rule, support an interpretation of the independent source rule that incorporates consideration of the
sufficiency of the untainted affidavit to see if probable cause exists without the tainted information.
Applying this approach to the present case, once the tainted information – the information orally
conveyed to Judge Corrigan – is eliminated, the probable cause analysis focuses on the written
affidavit. A court determining the sufficiency of an affidavit in support of a search warrant is
concerned only with the statements contained within the affidavit itself. United States v. Hatcher,
473 F.2d 321, 323 (6th Cir. 1973). Defendants-appellees argue that the affidavit for Room 127,
when examined without the tainted information, is a “bare bones” affidavit that does not indicate
“a ‘fair probability’ that evidence of a crime will be located on the premises of the proposed search.”
United States v. Bowling, 900 F.2d 926, 930 (6th Cir. 1990) (quoting United States v. Algie, 721
F.2d 1039, 1041 (6th Cir. 1983)). As defendant-appellee Thompson himself points out in his brief,
though, “it has been the rare case in which the Sixth Circuit has found a search warrant based on an
informant tip to be inadequate if the information has been corroborated to some degree.” Indeed,
the affidavit for Room 127 contains a particularized account of facts and circumstances that amount
to a “fair probability” that evidence could be found in the room, including: the payment of cash, the
suspicious driving pattern of the Suburban, the criminal history of the renter of the room and the
owner of the Suburban, the police canine’s positive indication for narcotics in the Suburban, and the
marijuana found on Jenkins. Taken by itself, and considering the totality of the circumstances, the
affidavit provides sufficient probable cause for the warrant. See Illinois v. Gates, 462 U.S. 213, 230-
32 (1983). Thus, the district court erred in suppressing the cocaine, because there was a sufficient
9
In United States v. Dice, this court refused to adopt a rule, “derivative of the ‘independent source doctrine,’”
that when police officers violate the knock-and-announce requirement but have a valid warrant, the exclusionary rule
should not apply to any evidence obtained as a result of the search. 200 F.3d at 982. The court distinguished cases such
as Murray as involving two searches (an illegal search followed by a second, legal search), instead of just one search
involving a Fourth Amendment violation. See id. at 985-86. While the argument could feasibly be made that this
reasoning applies to the present case, in that Riolo’s initial squeezing of the bags was part of the same search carried out
after the warrant issued, the holding of Dice is limited to the knock-and-announce situation. See id.
No. 03-3989 United States v. Jenkins, et al. Page 8
basis for the warrant that was wholly independent from any “tainted” information orally
communicated to the issuing judge.
B.
The government next argues that the district court erred in suppressing the evidence because
the good faith exception to the exclusionary rule applies. The question whether the good faith
exception to the exclusionary rule, as set out in United States v. Leon, 468 U.S. 897, 922-23 (1984),
applies is a question of law reviewed de novo by this court. Bowling, 900 F.2d at 930. In Leon, the
Supreme Court held that evidence obtained by officers acting in objectively reasonable reliance on
a search warrant issued by a neutral and detached magistrate need not be excluded from presentation
at trial, even if the warrant is subsequently invalidated. 468 U.S. at 922. The test of good faith is
an objective one: “whether a reasonably well trained officer would have known that the search was
illegal despite the magistrate’s authorization.” Id. at 922 n.23.
The government’s reliance on the good faith exception is erroneous. The illegal search at
issue – the officers’ inspection of the bags in Room 127 – occurred before the warrant was issued,
and thus the cocaine could not be admissible under a doctrine that requires reasonable reliance on
a warrant. Put simply, there was no warrant upon which the officers could rely in good faith. Cf.
United States v. Marion, 238 F.3d 965, 967-70 (8th Cir. 2001) (applying the good faith exception
to evidence seized in a search carried out after the warrant issued, even though the affiant officer
was one of the executing officers). Though the government emphasizes them in its brief, the facts
that the officers “deferred any substantial searching until after the warrant was obtained” and that
the illegal touching of the bags was “brief and occurred after a lawful entry to secure the premises”
are immaterial. The district court was correct not to apply the Leon good faith exception with
respect to the cocaine.
C.
The final issue to consider is whether the district court erred in suppressing the fruits of the
search of 11906 Imperial because there is a sufficient basis for the warrant even when the underlying
affidavit is stripped of references to any “tainted” information. In reviewing the district court’s
decision whether probable cause existed to issue a search warrant, this court employs a deferential
standard and seeks to determine whether “the facts and circumstances described in the affidavit
indicate a ‘fair probability’ that evidence of a crime will be located on the premises of the proposed
search.” Bowling, 900 F.2d at 930 (citation omitted); see also United States v. Spikes, 158 F.3d 913,
922-23 (6th Cir. 1998) (“The ultimate question of whether the search or seizure is reasonable under
the Fourth Amendment remains subject to de novo review.”); Restrepo, 966 F.2d at 971 (reviewing
a probable cause determination de novo after expunging the warrant affidavit of tainted information).
Since we have decided that there was sufficient probable cause for the Room 127 warrant
even without the tainted information, then there is no need to strike the reference to the cocaine
found in Room 127 from the warrant affidavit for 11906 Imperial. With this reference intact, it is
clear that probable cause existed to search the residence. The affidavit connected the residence to
the cocaine in Room 127 in two different ways: first, through the Explorer used by the two men
checking into the room, and second, through the phone number given by Andre Jenkins (who had
exited from Room 127) to Officer Sanchez at the jail. Considering seventy-three kilos of cocaine
had been found in Room 127, this information was clearly enough to demonstrate a “‘fair
probability’ that evidence of a crime” would be located at 11906 Imperial. Bowling, 900 F.2d at 930
(citation omitted). Therefore, since we hold that the district court erred in suppressing the cocaine,
then the warrant for 11906 Imperial is valid, and the district court also erred in suppressing the
evidence obtained from the search of that address.
No. 03-3989 United States v. Jenkins, et al. Page 9
III.
The district court did not err in failing to apply the good faith exception to the exclusionary
rule to the cocaine. However, the cocaine should still have been admitted because there was a
sufficient basis for the Room 127 warrant that was wholly independent from any “tainted”
information orally communicated to the issuing judge. Therefore, for the reasons set forth above,
we reverse the district court’s ruling suppressing the evidence from both the search of Room 127
and the search of 11906 Imperial and remand the case for trial on the merits.