NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0308n.06
Case No. 20-1535
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 01, 2021
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE
CHRISTOPHER CHARLES HOUGHTON, ) WESTERN DISTRICT OF
) MICHIGAN
Defendant-Appellee. )
)
BEFORE: WHITE, LARSEN, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. This case is about whether to suppress
evidence the police found while searching Christopher Houghton’s residence with a
warrant. An informant known here as “AMJ,” who had been recently released from
jail, provided police with the bulk of the information used to secure the warrant. The
district court suppressed the evidence, holding that the warrant lacked probable
cause and that the good-faith exception to the exclusionary rule did not apply.
Because the good-faith exception applies, we REVERSE.
I.
AMJ had only been out of jail for one day when officers stopped him in Ingham
County, Michigan. He was riding a moped with a stolen registration sticker and
No. 20-1535, United States v. Houghton
carrying a pneumatic pistol with the orange ring on the tip removed. AMJ said that
Houghton had given him the moped, and he offered to help the police by telling them
about criminal activity involving Houghton.
AMJ told Deputy Torok that he had lived in Houghton’s shed before his arrest
and returned there after he was released from custody. He recounted that Houghton
had said he was planning to steal from a certain propped-open shed, that Houghton
and MD had stolen a work truck with Snap-On tools, and that Houghton had stolen
certain things from two particular addresses (which Houghton pointed out to AMJ on
a driving tour). And AMJ shared his own observations of Houghton. Houghton had
gotten several new tools—which AMJ named by type and brand—as well as a “crotch
rocket,” a yellow mini-bike’s frame, and a bike lift. He also said that when he met
with Houghton at 1:30 a.m.,1 Houghton was unloading more tools from his vehicle,
including Snap-On wrenches, and sending pictures to JF, a co-conspirator. Finally,
he noted that Houghton usually splits stolen property with MD, another co-
conspirator, and they sometimes store stolen property in a certain vacant residence.
Deputy Torok found the shed AMJ referenced, and the owner confirmed that
the door was open and the lock missing. Officers also surveilled JF’s house and saw
Houghton in the driveway. He was looking into a trailer, which he then towed away
with his truck. An officer also stopped Houghton, but the only information he got was
that Houghton was leaving JF’s residence and going to his own.
1The district court judge said that the affidavit does not clarify whether it is
in the morning or afternoon, but the time is written in military time, “0130hr,” so it
was most likely 1:30 a.m.
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No. 20-1535, United States v. Houghton
Detective Lo filed for a search warrant based on this information and his
training and experience. The affidavit alleged:
4. Affiant was assigned to assist in an investigation that began with a
traffic stop that occurred on 12/25/2019. DEP. TOROK [stopped AMJ]
for riding on a moped with a stolen registration sticker and in possession
of a pneumatic pistol with the orange ring taken off the barrel.
5. . . . [I]n DEP. TOROKS’ investigation he learned from [AMJ] that he
received the moped from a CHRISTOPHER HOUGHTON who resides
in Delhi Manor [address].
6. . . . [AMJ] advised he was released from jail the morning of 12/24/2019
and walked to HOUGHTON’S residence in Delhi Manor, where he
previously lived out of the shed. [AMJ] states in the 28 days he was in
jail, HOUGHTON acquired some new tools and recalled seeing the
following items:
a. blue/black crotch rocket (no handles/gauges)
b. frame to a yellow mini bike
c. bike lift
d. Porter Cable circular saw
e. Porter Cable drill
f. Craftsman drill
7. . . . [AMJ] also tells DEP. TOROK that while meeting with
HOUGHTON, HOUGHTON drove [AMJ] around the area of Keller
Ridge subdivision, where HOUGHTON talks about a shed near
Keller/Sapling where he had already been, and left the door propped
open and planned on returning to break into at a later time. DEP.
TOROK was able to confirm the address to be [address], where the
owner confirms the door on his shed to be slightly open and the lock on
the door to be missing.
8. . . . [AMJ] also points out (2) two address [sic] on Knotwood Dr in Delhi
Twp., to DEP. TOROK, where HOUGHTON advised to [AMJ] he
recently stole from, each time using his uncle’s truck. [Gives the
addresses from which the mini-bike and the camper were stolen]
9. . . . [AMJ] tells DEP. TOROK, about HOUGHTON stealing a work
truck with [MD] that had a bunch of Snap-On tools . . . [AMJ] continues
to advise DEP. TOROK that he meets up with HOUGHTON at
approximately 0130hr on 12/25/2019 where he observed HOUGHTON
unloading tools from his vehicle and describes the tools as Snap On
wrenches, impact sockets, router bits, red impact drill, “a big red motor.”
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10. . . . [AMJ] also tells DEP. TOROK that HOUGHTON began taking
pictures of the tools and sending them to [JF] . . . who resides at
[address].
11. . . . DEP. TOROK advised [AMJ] states HOUGHTON will usually
split up the stolen property with [MD] . . . who resides at [address].
12. . . . DEP. TOROK was also advised by [AMJ] that HOUGHTON, [JF],
and [MD] have also been using the property of [Coolridge Ave. address]
to store stolen property as well. [AMJ] advises [that the property] is
directly south of [JF’s] residence, and is currently vacant.
13. . . . [O]n the morning of 12/26/2019, SGT. EVERY of the Ingham
County Sheriff’s Office, was conducting surveillance on [JF’s] residence,
when he observed HOUGHTON in the driveway of [address], where he
appeared to be looking in an enclosed trailer, then left the residence in
a vehicle with that trailer attached.
14. . . . SGT. EVERY was able to follow HOUGHTON from [JF’s]
residence to the entrance of Delhi Manor, where HOUGHTON was
subsequently traffic stopped by DEP. DULING of the Ingham County
Sheriff’s Office and identified HOUGHTON as the driver of the vehicle.
15. . . . HOUGHTON tells DEP. DULING that he left [JF’s] residence on
Coolridge Ave. and was enroute to his residence in Delhi Manor . . . .
16. Affiant knows from his training and experience that individuals who
steal property will usually conceal that stolen property in an area where
they have direct control and access to, an area such as their residence,
or their co-conspirator’s residence.
17. Affiant also knows from his training and experience that when the
stolen items such as handheld tools, can be concealed and stored in just
about any open spaces such as sheds, desk drawers, vehicles and their
compartments, and almost any other space that has a void that can hold
items.
(R. 17-1, Search Warrant, PageID 45–46.) The state magistrate found probable cause
to search Houghton’s residence and issued a warrant. Executing the warrant, officers
found a Snap-On tool, a pipe bomb. and copious ammunition. Based on this
information, a federal grand jury in the Western District of Michigan indicted
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No. 20-1535, United States v. Houghton
Houghton for possession of an unregistered firearm (the pipe bomb) and being a
convicted felon in possession of ammunition.
Houghton moved to suppress the evidence from the search, arguing that the
warrant was not supported by probable cause and that no reasonable officer would
have relied on the warrant. The district court granted the motion, finding the
affidavit insufficient to establish probable cause. The court also found that a
reasonable officer would not have relied on the warrant, making the good-faith
exception inapplicable. The government appealed the order under 18 U.S.C. § 3731.
II.
The familiar Fourth Amendment standard drives this case: “The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and 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.
A warrantless search is “presumptively unreasonable.” United States v. Karo, 468
U.S. 705, 717 (1984).
But a search with a warrant is not necessarily constitutional. Every warrant
must stand on probable cause—the factual inference of a “fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). If a magistrate lacks probable cause, the warrant he issues
is unconstitutional, and the court may apply the exclusionary rule to suppress the
evidence found in the resulting search. See Illinois v. Krull, 480 U.S. 340, 347 (1987).
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No. 20-1535, United States v. Houghton
But the exclusionary rule is subject to exceptions, including the good-faith
exception. When officers obtain evidence in “objectively reasonable reliance on a
subsequently invalidated search warrant,” courts should not exclude the evidence.
United States v. Leon, 468 U.S. 897, 922 (1984). This exception requires that the
officer had “reasonable grounds for believing that the warrant was properly issued.”
Id. at 923. The standard for good faith is lower than the standard for probable cause.
So even when an affidavit lacks probable cause, officers can sometimes rely on the
good-faith exception. See, e.g., United States v. White, 874 F.3d 490, 497 (6th Cir.
2017); United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004).
Yet good-faith reliance has boundaries. Officers do not get the benefit of the
good-faith exception when the affidavit was “so lacking in indicia of probable cause
as to render official belief in its existence entirely unreasonable.” Id.2 That kind of
affidavit is called a “bare bones” affidavit. Bare-bones affidavits provide “nothing
more than a mere guess that contraband or evidence of a crime would be found, either
completely devoid of facts to support the affiant’s judgment that probable cause
exists, or so vague as to be conclusory or meaningless.” United States v. Hines, 885
F.3d 919, 927 (6th Cir. 2018) (quoting White, 874 F.3d at 496). The classic example is
2 The Supreme Court has named four circumstances when the good faith
exception should not apply. The first is when the affidavit contains information the
officer knows or should know to be false. Leon, 468 U.S. at 923. The second is when
“the issuing magistrate wholly abandoned his judicial role.” Id. (citing Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319 (1979)). The third is the lack of indicia of probable
cause. And the fourth is when the warrant facially lacks necessary elements like “the
place to be searched or the things to be seized.” Id. The only one at issue here is the
third.
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No. 20-1535, United States v. Houghton
Nathanson v. United States, 290 U.S. 41 (1933). There, the officer affirmed only that
he had “cause to suspect and d[id] believe that certain . . . liquors of foreign origin a
more particular description of which cannot be given . . . brought into the United
States contrary to law . . . [were] within the premises of J. J. Nathanson . . . at 117
No. Bartram Ave.” Id. at 44; see United States v. Williams, 224 F.3d 530, 533 (6th Cir.
2000).
Frequently, important features in probable-cause determinations are
independent determination, informant credibility, and the nexus between the crime
and the place to be searched. The Fourth Amendment requires that the inference of
probable cause “be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting out
crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). And that requires that the
affidavit have enough information for the magistrate to draw an “independent
determination of probable cause” without relying on the officer’s beliefs and
inferences. United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004). There also
must be a “substantial basis for crediting” any hearsay information, such as an
informant tip, that the officer includes in the affidavit. United States v. Meeks,
313 F.2d 464, 465 (6th Cir. 1963). Finally, the affidavit’s facts must establish a
sufficient “nexus between the place to be searched and the evidence sought.” United
States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998) (citation omitted).
These factors are only part of the totality of the circumstances, and we look at
the affidavit in a “commonsense” and not “hypertechnical” manner, considering the
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“totality of the circumstances” rather than “engaging in line-by-line scrutiny.”
Woosley, 361 F.3d at 926. We also “give great deference to a magistrate’s
determination of probable cause,” reversing only “if the magistrate arbitrarily
exercised his or her authority.” United States v. Brown, 732 F.3d 569, 573 (6th Cir.
2013).3
III.
The government argues that the totality of the circumstances supports a
finding of probable cause. It notes that AMJ was a named informant with recently-
gained, detailed, firsthand knowledge of criminal conduct—much like the informant
in United States v. Pelham, 801 F.2d 875, 876 (6th Cir. 1986). Houghton responds
that the affidavit did not establish AMJ’s credibility, meaning that the officers would
need to thoroughly corroborate his statements before relying on them, something he
argues they did not do. He cites United States v. Allen, which noted that in “the
absence of any indicia of the informants’ reliability,” courts have required
“substantial independent police corroboration.” 211 F.3d 970, 976 (6th Cir. 2000).
But Houghton confuses the standard for anonymous informants with the
standard for named informants. The tip without “any indicia” of reliability in Allen
was an “anonymous tip” with either little detail or only innocent detail. Id. Named
informants’ statements get “far greater weight than those of an anonymous source.”
United States v. May, 399 F.3d 817, 825 (6th Cir. 2005). As a named informant, AMJ’s
3We review the district court’s factual findings for clear error and the legal
conclusions de novo. See Brown, 732 F.3d at 572. Whether an affidavit supports
probable cause is a legal conclusion, so we do not defer to the district court. Id.
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testimony should be analyzed using the typical measures of reliability, including
basis of knowledge, detail, recency, and independent corroboration.4 And “while
better investigative work is preferable to merely adequate investigation, it is not the
constitutional measure of probable cause.” Allen, 211 F.3d at 976.
In the end, though, we need not decide the probable-cause question because
the good-faith exception applies. In considering the exception, the district court
misapplied the good-faith standard. Although it correctly stated that a bare-bones
affidavit is not simply one that lacks probable cause, the district court focused solely
on whether the affidavit lacked probable cause and offered almost no analysis specific
to the good-faith exception. It stated:
[W]e must take care not to confuse a bare bones affidavit with one that
merely lacks probable cause. And here I think we have an affidavit that
clearly lacks probable cause. And for the same reasons I think, as I have
4 Spelling out the basis of knowledge ensures that the magistrate knows that
the informant “is relying on something more substantial than a casual rumor
circulating in the underworld or an accusation based merely on an individual’s
general reputation.” United States v. Pena, 188 F.3d 509, 1999 WL 618082, at *5 (6th
Cir. 1999) (table) (citation omitted). A “close relationship” with the suspect can
provide “a solid basis of knowledge from which to speak” about the suspect’s crimes.
Wolfe v. Perry, 412 F.3d 707, 718 (6th Cir. 2005).
Details—such as specifics on the crime and location—boost the credibility of
the tip. See Woosley, 361 F.3d at 927. And recency is necessary for a proper warrant
affidavit. If information is stale, it cannot support probable cause. United States v.
Perry, 864 F.3d 412, 414 (6th Cir. 2017).
Police corroboration can come in different forms, including additional tips from
others, the prior criminal history of the suspect, surveillance, trash pulls yielding
evidence, and controlled drug purchases. “When it comes to probable cause, ‘the whole
is often greater than the sum of its parts—especially when the parts are viewed in
isolation.’” United States v. Christian, 925 F.3d 305, 311 (6th Cir. 2019) (en banc)
(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)). Even a small
corroborative fact insufficient on its own can be “a relevant data point in the ‘totality
of the circumstances’ constellation, rather than an independent thing to be lined up
and shot down one by one.” Id.
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indicated, that a reasonable, careful Magistrate and a reasonable law
enforcement officer would not in good faith rely on this affidavit.
(R. 31, Dist. Ct. Op., PageID 183.) “We reserve [the bare-bones] label for an affidavit
that merely ‘states suspicions, or conclusions, without providing some underlying
factual circumstances regarding veracity, reliability, and basis of knowledge.’”
Christian, 925 F.3d at 312 (quoting Washington, 380 F.3d at 241 n.4). The “affidavit
must be ‘so lacking in indicia of probable cause’ as to make an officer’s ‘belief in its
existence [ ] objectively unreasonable.’” Id. (quoting United States v. Laughton, 409
F.3d 744, 748 (6th Cir. 2005)).
Correct application of that test shows that the good-faith exception applied.
The affidavit contained “factual allegations, not just suspicions or conclusions.” Id. at
313. In over a dozen paragraphs, the affidavit explained why the officers believed
they would find evidence at Houghton’s residence. The affidavit included AMJ’s
statements about the exact brands and types of tools that Houghton possessed and
specific addresses of places where Houghton had allegedly stolen from—along with
an address where police confirmed with the owner that a shed-door had been propped
open, as AMJ said it was. AMJ also provided the names and addresses of potential
accomplices, and police saw Houghton arrive at the home of one of those alleged
accomplices the next day. All of that supported AMJ’s veracity, reliability, and basis
of knowledge. We cannot fairly characterize the affidavit’s allegations as a “mere
guess.” Hines, 885 F.3d at 927 (quoting White, 874 F.3d at 496).
And the officers had the nexus required for the good-faith exception to apply:
a “minimally sufficient nexus between the illegal activity and the place to be
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No. 20-1535, United States v. Houghton
searched.” White, 874 F.3d at 497.5 While the affidavit did not specifically say that
AMJ saw stolen property at Houghton’s house, paragraph six implies that AMJ was
at Houghton’s residence when he saw the new tools that Houghton had obtained since
AMJ was last there. AMJ also said he saw Houghton unloading tools from his truck
at 1:30am—including Snap-On wrenches—and said that Houghton had previously
stolen a work truck with Snap-On tools. AMJ said that Houghton was texting photos
of these tools, at 1:30am, to one of his alleged co-conspirators. These actions took place
at Houghton’s residence. Also supporting a search of Houghton’s residence is the
officer’s experience that thieves often store their wares in their own or a co-
conspirator’s residence. We have held that “an officer’s ‘training and experience’ may
be considered in determining probable cause.” Schultz, 14 F.3d at 1097. Taken
together, the facts in the affidavit pass the good-faith threshold.
IV.
Because the district court should have applied the good-faith exception, we
REVERSE the district court’s grant of the motion to suppress and REMAND for
proceedings consistent with this opinion.
5 In United States v. Schultz, the court held that, although statements about
the officer’s “training and experience” were insufficient for the probable-cause nexus,
it “was not so remote” a connection “as to trip on the ‘so lacking’ hurdle” of the good
faith standard. 14 F.3d 1093, 1098 (6th Cir. 1994). And pathways between a
marijuana field and a house that failed to show probable cause in United States v.
Carpenter still supported applying the good-faith exception. 360 F.3d 591, 598 (6th
Cir. 2004).
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