United States v. Stearn

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-3230
_____________

UNITED STATES OF AMERICA,

Appellant

v.

EDWARD STEARN, AKA EXTRA, JOSEPH DOEBLEY,
AKA MAXI, and MICHAEL DOEBLEY, AKA MIV,

Appellees
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
Criminal Action 06-00203

District Judge: Honorable Juan R. Sanchez
_____________

Argued September 9, 2009
_____________
Before: SCIRICA, Chief Judge, RENDELL and ALDISERT,
Circuit Judges
(Opinion Filed: March 9, 2010)

DAVID J. IGNALL (ARGUED)
KATHY A. STARK
U.S. Attorney’s Office
615 Chestnut St.
Suite 1250
Philadelphia, PA 19106

Attorneys for Appellant

ARNOLD C. JOSEPH (ARGUED)
JOSEPH & ASSOCIATES
6198 Butler Pike Ste 135
Bluebell, PA 19422

Attorneys for Appellee Edward Stearn

ELLIOT M. COHEN (ARGUED)
LOUIS T. SAVINO, JR.
LOUIS T. SAVINO AND ASSOCIATES
Suite 1516
Two Penn Center Plaza
15th and John Fitzgerald Kennedy Boulevard
Philadelphia, PA 19102

Attorneys for Appellee Michael Doebley

2
GERALD A. STEIN (ARGUED)
1500 Market Street
Suite 2727, Centre Square West
Philadelphia, PA 19102-2146

Attorney for Appellee Joseph Doebley

_____________

OPINION OF THE COURT
_____________

ALDISERT, Circuit Judge.

The United States Government appeals the order of the
District Court for the Eastern District of Pennsylvania granting
in part motions to suppress evidence in favor of Defendants
Joseph Doebley, Michael Doebley and Edward Stearn.1 In its
memorandum and order, the District Court suppressed evidence
seized pursuant to seven warrants because (1) four warrants
lacked probable cause and three additional warrants were “fruits
of the poisonous tree,” and (2) the warrants’ “bare bones”
supporting affidavits rendered inapplicable the Leon exception
for “good faith” reliance on a search warrant. See United States

1
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have appellate jurisdiction pursuant to 18 U.S.C. §
3731.

3
v. Leon, 468 U.S. 897, 926 (1984). Moreover, although the
Government objected that each defendant lacked a legitimate
expectation of privacy in some of the searches, the District
Court suppressed evidence as to each defendant without
resolving the Government’s so-called “standing” challenges.2
See Rakas v. Illinois, 439 U.S. 128, 140, 143 (1978). On appeal,
the Government contends that the District Court erred in all
three respects.

Except for the search of 5020 Homestead, from which no
evidence was seized,3 we will reverse the District Court’s order

2
At times we will employ the term “standing” as
“shorthand for the determination of whether a litigant’s Fourth
Amendment rights have been implicated.” See United States v.
Mosley, 454 F.3d 249, 253 n.5 (3d Cir. 2006) (citation omitted).
We use the term to facilitate reference, but with the
understanding that the inquiry actually turns on the presence or
absence of the defendant’s legitimate expectation of privacy in
the place searched.
3
The Government appeals the District Court’s entire
order, which suppressed evidence seized pursuant to the warrant
to search 5020 Homestead. But because no evidence was seized
at this location, this point is moot. Cf. United States v. Garrett,
No. 4:08CR00703, 2009 WL 1086974, at *6 (E.D. Mo. Apr. 22,
2009) (“Because there is no evidence to suppress, defendant’s
motion to suppress evidence will be denied, as moot.”); cf. also,
e.g., United States v. Taylor, 599 F.2d 832, 837 n.1 (8th Cir.

4
in its entirety. As set forth below, the magistrate judge had a
substantial basis for determining that probable cause existed to
search 4049 Higbee, the apparent residence of a confirmed drug
dealer, and we will uphold the search on that basis. Closer
probable cause questions are presented by the searches of 5019
Homestead, 5022 Homestead, 5034 Homestead and 5038
Homestead, which had discernible, but less direct connections
to the defendants’ alleged drug activities. Without deciding
these probable cause questions, we will uphold each search
under the Leon good faith exception, as each warrant was
sufficiently colored in probable cause to justify the executing
officers’ good faith reliance. Finally, because we reject Stearn’s
Fourth Amendment challenge to the search of 5019 Homestead
– his only challenge to the property searches – we also reverse
the District Court’s suppression of Stearn’s saliva sample as
“fruit of the poisonous tree,” as he failed to prove a “primary”
invasion of his own Fourth Amendment rights. See United
States v. Smith, 522 F.3d 305, 306 n.2 (3d Cir. 2008).

Because this appeal requires a considered study of Fourth
Amendment precepts – a study driven by complicated facts
involving three defendants and warrant-based searches of six
residences, a garage and two motor vehicles – our analysis, of
necessity, is protracted.

1979); United States v. Franklin, No. CRIM. A. 04-10117RWZ,
2005 WL 2177120, at *1 (D. Mass. Sept. 9, 2005).

5
 I.

On October 6, 2005, Officer Ryan, a veteran of the
Philadelphia Police Department’s narcotics unit, submitted an
affidavit in support of search warrants for six locations in
Philadelphia, Pennsylvania. Officer Ryan submitted a second
affidavit on October 7, 2005, seeking search warrants for
additional locations. Because no party presented evidence
outside the affidavits themselves, our “factual” discussion is
drawn almost entirely from the affidavits.4 (App. 158-160.)

A.

According to his October 6 affidavit, Officer Ryan
received a tip from a confidential informant on September 28,
2005 that implicated Joseph Doebley, Michael Doebley and
Edward Stearn in drug distribution crimes in the city of

4
Neither the parties’ briefs nor the Appendix are clear as
to the date the warrant issued for Stearn’s blood and/or saliva,
and no party furnished us with a copy of the warrant. As far as
we can tell, that warrant issued approximately one week after
the initial searches and some time after that, a saliva sample was
collected from Stearn. Because Stearn sought to suppress his
saliva sample only as fruit of the poisonous tree (and made no
other argument concerning probable cause), we confine
ourselves to the issue whether Stearn’s saliva sample was fruit
of the poisonous tree. (See App. 108.)

6
Philadelphia.5 Specifically, the informant told Ryan that Joseph
Doebley sells cocaine powder in weight with his brother
Michael Doebley and that Edward Stearn was Joseph Doebley’s
supplier. (App. 88.) The informant also told Ryan that Joseph
Doebley operated his cocaine business from his house on the
4000 block of Higbee Street and a garage on the 4800 block of
Comly Street, which he had converted to a gym. According to
the informant, Joseph Doebley operated a rust-colored Chevrolet
Impala and blue-and-white pickup truck with fancy rims.

In the subsequent week, officers corroborated many
details of the informant’s tip through investigation and
surveillance. On September 28, the day Ryan received the tip,
officers located the gym at 4808 Comly and observed a blue-
and-white pickup truck with fancy rims parked in the gym’s side
yard. Police officers additionally verified that Joseph Doebley
was the listed owner of 4808 Comly and learned that Jane Betty
Doebley owned 4049 Higbee. That evening, officers observed
Joseph Doebley exit 4808 Comly and depart in the Chevrolet

5
In relating the officers’ observations, Officer Ryan’s
affidavits sometimes record observations of “Doebley,” without
specifying whether Joseph or Michael was observed. On our
reading, it appears that officers used the name “Doebley” to
refer to Joseph Doebley, and typically referred to Michael
Doebley using his full name. Read in context, the affidavits
leave almost no doubt as to which Doebley was under
observation at any given time.

7
Impala. Soon thereafter, officers watched Doebley sell a 3.5-
gram baggie of cocaine, in a controlled buy, from the inside of
his Impala.

During surveillance on October 4 and 5, police officers
confirmed Joseph Doebley’s drug involvement and tracked his
movements among several properties in the neighborhood. On
October 4, a white male exited 4808 Comly, spoke with Joseph
Doebley in the side yard, drove to the intersection of
Cheltenham and Hegerman, and completed a sale of
approximately 3.5 grams of cocaine from inside his car. The
white male returned to 4808 Comly and counted out and
delivered currency to Doebley, who entered 4808 Comly and
departed after a brief stay. Later that evening, Doebley left 4808
Comly in the blue-and-white pickup truck, and approximately
two hours later, arrived at 5038 Homestead. He remained there
for two hours. After a brief stop at 4808 Comly, Doebley was
next observed as he parked in a rear driveway near 4049 Higbee
at approximately 11:50 p.m. He entered the rear yard of 4049
Higbee, which contained a pit bull, and entered the attached
garage through a rear door. Police terminated surveillance
shortly thereafter, but at 7:15 a.m. the next morning, officers
observed that the pickup truck remained parked in the rear of
4049 Higbee. According to the affidavit, property records listed
Ruth Nolan as the owner of 5038 Homestead, and listed 4049
Higbee as a co-owner address. The affidavit did not name the
co-owner. Police also learned that the water bill for 5038
Homestead was mailed to 4049 Higbee.

8
 The affidavit next recounts the officers’ October 5
observations of Joseph and Michael Doebley as they moved
among several properties on Homestead Street and the 4808
Comly gym. That afternoon, officers observed Michael Doebley
leave 5019 Homestead, drive to 4808 Comly, depart with Joseph
Doebley, and arrive at 5019 Homestead, which both men
entered. Joseph Doebley then left 5019 Homestead, entered
5022 Homestead and returned to 4808 Comly with an
unidentified white male. Joseph Doebley then drove back to
Homestead Street and entered 5019 and 5017 Homestead,
subsequently using keys to enter both 5022 and 5028
Homestead. Doebley then met with a white female, entered 5030
Homestead and remained there for approximately one hour.
Thereafter Doebley returned to 5022 Homestead. According to
real estate records, 5019 Homestead was owned by Edward
Stearn, who had three prior drug distribution arrests. Michael
Doebley had two prior drug distribution arrests.

Officer Ryan submitted an affidavit on October 6,
alleging that the foregoing facts established probable cause to
search 4049 Higbee, 4808 Comly, 5017 Homestead, 5019
Homestead, 5022 Homestead and 5038 Homestead. A judge of
the Pennsylvania Court of Common Pleas reviewed the affidavit
and issued each of the warrants requested. On October 6,
officers executed all warrants, except for the warrant to search
5017 Homestead. (See App. 96.) The results were reported in
Officer Ryan’s second affidavit, the details of which follow.

9
 B.

On October 7, 2005, Officer Ryan submitted a second
affidavit seeking warrants to search 5020 Homestead and 5034
Homestead, the rust-colored Chevrolet Impala and the blue-and-
white pickup truck. This affidavit incorporated the first
affidavit, detailed the results of additional surveillance, and
reported the results of the October 6 searches. (App. 95-97.)

On the morning of October 6, FBI and IRS agents raided
Dangerous Curves Gentlemen’s Club at Homestead Street and
State Road, adjacent to the 5000 block of Homestead Street. At
3:15 p.m., a confidential informant arranged another controlled
purchase from Joseph Doebley, but the purchase was not
consummated. At approximately 3:30 p.m., federal agents left
the Gentlemen’s Club, and “[s]hortly after that,” Edward Stearn,
Michael Doebley, and one Chris Simon left 5019 Homestead
and entered 5020 Homestead. (App. 96.) Thereafter, Michael
Doebley entered and exited 5022, 5038 and 5034 Homestead in
a short span of time, and he returned to 5022 Homestead.
Edward Stearn then departed 5022 Homestead, entered 5019
Homestead, exited carrying clothes and a bag, and entered a
black truck. At the same time, Michael Doebley left 5022
Homestead carrying white trash bags and entered a grey Jeep
Cherokee. Both vehicles departed at the same time. According
to the affidavit, young white males exited 5019 Homestead and
5038 Homestead, and they “fled East bound” with backpacks.
(App. 96.) Shortly thereafter, highway patrol units stopped

10
Michael Doebley’s Jeep, detained him, and found large amounts
of cash on his person. Officers also pursued Edward Stearn, but
lost him.

According to the affidavit, officers subsequently
executed the warrants for 4049 Higbee, 4808 Comly, 5019
Homestead, 5022 Homestead and 5038 Homestead, but not 5017
Homestead. (App. 96.) At 4049 Higbee, officers found
marijuana, packaging material, a firearm and documents in
Joseph Doebley’s name. At 5019 Homestead, officers found
proof of residence for Edward Stearn, mail for Michael Doebley,
bulk cocaine powder, marijuana, pills and U.S. currency. At
5022 Homestead, officers found marijuana and packaging, and
may have also found documents for Michael Doebley.6 At 5038
Homestead, officers found an estimated eight kilograms of
cocaine in bricks and smaller units, approximately 15 handguns
and proof of residence for Michael Doebley. Officers also
executed the warrant for 4808 Comly, but nothing was found
nor taken. (App. 96.)

Pending the application for the additional warrants,
officers secured the premises at 5020 Homestead and 5034
Homestead and seized the blue-and-white pickup truck and the

6
According to the affidavit, “Marijuana and packaging
was recovered for Michael Doebley.” (App. 96.) Although it
appears a typo or omission was made, this may suggest that
some type of documents were found for Michael Doebley.

11
rust-colored Chevrolet Impala. (App. 96.) Just before officers
secured 5034 Homestead, a white female identified herself as
Sophia Beltz and told officers she was the owner. (Id.) When
asked for keys to the property, Beltz stated she would not know
who had keys, and she told officers that Michael Doebley was
the only person inside the property. (App. 96-97.)

After reviewing Ryan’s second affidavit, a Philadelphia
bail commissioner issued warrants for 5020 Homestead and
5034 Homestead, the pickup truck and the Chevrolet Impala. In
the ensuing searches, officers recovered marijuana and grinders
from 5034 Homestead, and they found one ounce of cocaine and
packaging material in the pickup truck. Nothing was found nor
taken from 5020 Homestead or the Chevrolet Impala. (App. 91,
94.) Approximately one week later, Officer Ryan apparently
obtained a warrant to collect blood and saliva from all three
defendants. (See Appellant’s Br. 18; App. 104.) Although we
are not certain of the timeline, saliva was collected from
Defendant Stearn sometime after his arrest.

II.

On April 26, 2006, a federal grand jury charged Joseph
Doebley, Michael Doebley and Edward Stearn with federal
narcotics and weapons offenses.7 Defendant Joseph Doebley

7
The grand jury returned an indictment, charging Edward
Stearn, Joseph Doebley and Michael Doebley with one count

12
filed a motion to suppress evidence seized from 4808 Comly,
4049 Higbee, 5019 Homestead, 5022 Homestead, 5034
Homestead, 5038 Homestead and the blue-and-white pickup
truck. Defendant Stearn filed a motion to suppress evidence
seized from 5019 Homestead and the saliva sample taken after
his arrest. Michael Doebley filed a motion to join and adopt
Joseph Doebley’s motion to suppress. (App. 131, 153.)

In its consolidated response, the Government argued that
the searches were valid under Leon because they were executed
in good faith reliance on validly issued warrants. The
Government additionally argued that probable cause supported
each search, and that in any case, not all defendants had

each of conspiracy to distribute controlled substances in
violation of 21 U.S.C. § 846; possession of a controlled
substance with intent to distribute in violation of 21 U.S.C. §
841(a)(1); possession of firearms in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1); and
possession of firearms by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). The indictment also charged Joseph Doebley
with one count of distribution of a controlled substance, in
violation of 21 U.S.C. § 841(a)(1). On September 13, 2006, the
grand jury returned a superseding indictment, which added an
additional charge against Edward Stearn for possession of a
controlled substance with intent to distribute, in violation of 21
U.S.C. § 841(a)(1).

13
“standing” to challenge each of the disputed searches.8 The
Government conceded that Fourth Amendment challenges could
be maintained by: Joseph Doebley as to 4808 Comly, 4049
Higbee and 5038 Homestead; Michael Doebley as to 5022
Homestead and 5034 Homestead; and Edward Stearn as to 5019
Homestead.9 The Government maintained, however, that each
Defendant lacked “standing” to challenge the search of any
other premises.
A.

At the suppression hearing on April 10, 2008, the
Government reasserted its “standing” challenges, but suggested
that the Court proceed “in the reverse order” and address the

8
Specifically the Government argued that Joseph Doebley
lacked a legitimate expectation of privacy in 5019 Homestead,
5022 Homestead, 5034 Homestead and 5038 Homestead. It
argued that Michael Doebley lacked a legitimate expectation of
privacy in 4049 Higbee, 5019 Homestead, 5022 Homestead,
5038 Homestead or Joseph Doebley’s car. The Government
acknowledged that Edward Stearn challenged only the search of
5019 Homestead, “which was his home.” It conceded Stearn’s
right to challenge that search. (App. 135.)
9
The Government made these concessions in its briefs,
except for the concession that Joseph Doebley had a legitimate
expectation of privacy in 5038 Homestead, which was made at
the outset of the suppression hearing. (See Appellant’s Br.
74-75; see also App. 135, 156-157.)

14
probable cause issue first. (App. 157.) In the Government’s
view, that procedure was more expedient because it would
“moot any standing issues” and obviate the need for testimony
or proof on “standing.” (App. 157.) The District Court and the
defendants agreed, and the hearing proceeded on the issues of
probable cause and the Leon good faith exception. Each
defendant declined the Court’s invitation to present testimony or
evidence outside the affidavits. (App. 158.) Once argument
began, neither the parties nor the Court returned to the issue
whether each defendant had a legitimate expectation of privacy
in each of the properties searched. (App. 164-192.) At the close
of argument, the Court took the matter under advisement.

On April 25, 2008, the District Court granted in part the
defendants’ motions to suppress. See United States v. Stearn,
548 F. Supp. 2d 182, 193-194 (E.D. Pa. 2008). Although the
Court acknowledged its duty to accord great deference to the
magistrate judge’s probable cause determination, the Court
demurred with respect to four of the October 5 warrants, stating:
I am unable to find sufficient evidence of probable cause
within the four corners of the affidavit to support the search
warrants for 4049 Higbee Street, 5022, 5019, and 5038
Homestead Street. The affidavit contains not a shred of evidence
regarding the reliability of the “informant,” no exchanges are
witnessed in the vicinity of the houses on Homestead or Higbee
streets, no buys were made from or near the houses, and no one
was seen leaving any of the houses before going to a drug sale.

15
Id. at 192. The Court expressed serious concerns about the
informant’s credibility, finding that “the affidavit provides no
assertion the officers believed the confidential informant, no
history of past cooperation by the informant, no drug buys by the
informant, and no inside information supplied by the informant.”
Id. at 190. Because the affidavit failed to establish meaningful
corroboration, the informant’s tip did not support probable cause
that Joseph Doebley, Michael Doebley and Edward Stearn were
drug dealers. Id. at 190, 192.

In addition, Joseph Doebley’s documented drug
transactions afforded probable cause to search the 4808 Comly
gym and the two vehicles, but not 4049 Higbee, 5019
Homestead, 5022 Homestead or 5038 Homestead. Id. at 192-
195. The Court observed that because the “only two drug sales
documented in the affidavits had . . . a . . . nexus to 4808 Comly
Street,” the affidavit established probable cause to search that
location. Id. at 193. Likewise, Doebley’s drug sales established
probable cause to search the blue-and-white pickup truck
because, according to the affidavit, officers observed him
driving that vehicle. Id.

By contrast, the Court ruled that probable cause did not
exist to search the Higbee or Homestead properties because the
affidavit failed to connect any of those locations with drug
activity. Id. at 192. In so ruling, the Court rejected the
Government’s argument that probable cause was established

16
through Whitner and its progeny, which permit a magistrate to
infer that a drug dealer is likely to use his home as a “stash
house.” Id. at 191 (citing United States v. Whitner, 219 F.3d
289, 292 (3d Cir. 2000)).10 In the Court’s view, that inference
was available only where the affidavit suggested large-scale
operations or described drug sales in the immediate vicinity of
a dealer’s home. Id. (citing Burton, 288 F.3d at 105; Hodge 246
F.3d at 306; Whitner, 219 F.3d at 292). Because Ryan’s
affidavit detailed only small drug transactions and revealed no
drug sales in the immediate vicinity of the Higbee or Homestead
properties, Whitner and its progeny did not support a finding of
probable cause. Id.

Because it found the affidavit’s defects so severe, the
Court perfunctorily declined to apply the Leon “good faith”
exception to the exclusionary rule. Id. n.5 (citing Leon, 468 U.S.
at 922). In a three-sentence footnote, the Court ruled Leon
inapplicable because “the defects in this case were in the
affidavits to establish probable cause,” and because those
affidavits were “bare bones.” Id.

The Court then excluded as fruits of the poisonous tree

10
See also United States v. Burton, 288 F.3d 91, 104 (3d
Cir. 2002); United States v. Hodge, 246 F.3d 301, 306 (3d Cir.
2001); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.
1993).

17
all evidence seized pursuant to the September 6 warrants for
5020 Homestead, 5034 Homestead and Stearn’s saliva sample.
Id. at 193-195. All told, the District Court suppressed the
evidence seized from 4049 Higbee, 5019 Homestead, 5020
Homestead, 5022 Homestead, 5034 Homestead and 5038
Homestead, as well as Stearn’s saliva sample. (App. 22, 25.) Id.
The Court denied suppression only of the evidence found at
4808 Comly and in the blue-and-white pickup truck. Id.

Significantly, the Court did not limit its suppression order
to those defendants possessing legitimate expectations of
privacy in each property, nor did it mention the Government’s
so-called “standing” challenges. See id. at 194. Consequently,
evidence from all seven searches was suppressed against Joseph
Doebley, even though the Government raised serious concerns
about his “standing” to challenge the searches of 5019
Homestead, 5022 Homestead, and 5034 Homestead. Further,
although Michael Doebley merely joined in Joseph Doebley’s
motion to suppress without specifically alleging his own
expectation of privacy in the searched properties, evidence from
all seven searches was suppressed as to him. In addition,
evidence from all seven searches was suppressed as to Edward
Stearn, even though he challenged only the warrants for 5019
Homestead and his saliva sample.

B.

18
 The Government moved for reconsideration of the issues
of probable cause, good faith and “standing,” but was rebuffed
on all three grounds. See United States v. Stearn, No. 06-203,
2008 WL 2550582, at *1 (E.D. Pa. June 26, 2008). In its order
of June 26, 2008, the Court reaffirmed its rejection of the
Government’s good faith and probable cause arguments,
essentially for the reasons given in its original order. Id.
Moreover, although the Court addressed the Government’s
“standing” objections, it dismissed them in a three-sentence
footnote, stating:
The Government also seeks in its brief for
reconsideration to argue standing as to each of the
Defendants. At oral argument, the Government
conceded the standing issue was subservient to
the issue of probable cause. Because I find the
searches were unreasonable, the evidence will be
suppressed as to each of the three Defendants.

Id. at *4 n.2. The Government timely appealed, renewing its
arguments on “standing,” probable cause and good faith.

III.

We first address the Government’s argument that the
District Court’s suppression order improperly excluded evidence
as to defendants who lacked legitimate expectations of privacy

19
in the places searched. Our review is “for clear error as to the
underlying factual findings,” and we “exercise[] plenary review
of the District Court’s application of the law to those facts.”
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002)
(citation omitted).

To invoke the Fourth Amendment’s exclusionary rule, a
defendant must demonstrate that his own Fourth Amendment
rights were violated by the challenged search or seizure. See
Rakas, 439 U.S. at 132-134. These rights are violated only if
“the disputed search and seizure has infringed an interest of the
defendant which the Fourth Amendment was designed to
protect.” Id. at 140. Significantly, a defendant’s Fourth
Amendment rights are not violated by the introduction of
evidence obtained in violation of a third party’s rights. Id. at
134. Because Fourth Amendment rights are “personal,” id. at
139, the proponent of a motion to suppress “bears the burden of
proving not only that the search . . . was illegal, but also that he
had a legitimate expectation of privacy in [the place searched].”
Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). “The ‘standing’
inquiry, in the Fourth Amendment context, is shorthand for the
determination of whether a litigant’s Fourth Amendment rights
have been implicated.” Mosley, 454 F.3d at 253 n.5.

When the Government conceded each defendant’s
“standing” to challenge one or more specified searches, it
relieved each defendant of his burden of demonstrating a

20
legitimate expectation of privacy with respect to those specified
searches. Indeed, because the legitimate-expectation-of-privacy
inquiry is distinct from jurisdictional “standing,” we honor the
Government’s express concessions of the rights of each
defendant to challenge one or more specified searches.11 As set

11
The Government made its “standing” concessions in the
District Court, and has not taken a contrary position on appeal.
But because disagreement exists over whether a concession of
Fourth Amendment “standing” is valid, we briefly discuss the
import of these concessions.

Some of our sister Courts of Appeals reject the notion
that the government may concede a defendant’s legitimate
expectation of privacy in a searched premises. See United States
v. Bouffard, 917 F.2d 673, 677 (1st Cir. 1990) (remanding to the
district court to conduct a “standing” inquiry, notwithstanding
the government’s concession of the defendant’s “standing” in
the district court and on appeal, because “there is a clear
insufficiency of evidence to demonstrate that the defendant
possessed a legitimate expectation of privacy”); see also United
States v. Smith, 621 F.2d 483, 489 n.3 (2d Cir. 1980)
(“[S]tanding is a question of law and a concession by the
Government on a question of law is never binding on this Court.
Thus the Government is free to argue the question of Smith’s
standing even if it ‘conceded’ it during the proceedings below.”
(citation omitted)). Implicit in this view is that the government
either does not, or cannot, “waive” its challenge to “standing” by
conceding it. See id. In these courts, the government remains
free to challenge “standing” even if it conceded that issue

21
below, and a reviewing court may revisit the issue even if no
party raises it on appeal. See Bouffard, 917 F.2d at 676; id. at
678 (Toruella, J., dissenting).

We believe the better view is that the government may
concede a defendant’s Fourth Amendment “standing,” and that
in doing so, it waives its right to challenge “standing” on appeal.
See United States v. Amuny, 767 F.2d 1113, 1122 (5th Cir.
1985) (holding that the government “forfeited” its opportunity
to challenge “standing” on appeal where it conceded “standing”
in the district court); see also United States v. Cellitti, 387 F.3d
618, 623 (7th Cir. 2004). Fourth Amendment “standing” is one
element of a Fourth Amendment claim, and does not implicate
federal jurisdiction. See Rakas, 439 U.S. at 139. Consequently,
“standing” can be conceded by the government, and it is also
subject to the ordinary rule that an argument not raised in the
district court is waived on appeal. See Steagald v. United States,
451 U.S. 204, 209 (1981) (warning that the government can
“lose its right” to challenge “standing” “when it has made
contrary assertions in the courts below . . . or when it has failed
to raise such questions in a timely fashion during the litigation”);
Belitskus v. Pizzingrilli, 343 F.3d 632, 645 n.11 (3d Cir. 2003).
As here, when the Government concedes “standing” in the
district court, it waives its right to make contrary arguments on
appeal.

Nor are we obligated to revisit the “standing” issue on
our own initiative. Contrary to the conclusion of the First Circuit
Court of Appeals, we need not ensure that the Government’s

22
forth above, the Government conceded that Fourth Amendment
challenges could be maintained by: Joseph Doebley, with
respect to 4808 Comly, 4049 Higbee and 5038 Homestead;
Michael Doebley with respect to 5022 Homestead and 5034
Homestead; and Edward Stearn with respect to 5019
Homestead. Aside from these concessions, the Government
disputed each defendant’s right to challenge all other searches.
No defendant established a legitimate expectation of privacy in
any other location; in fact, only Joseph Doebley even asserted an
expectation of privacy in additional locations.

With respect to the defendants and locations for which
the Government did not concede a legitimate expectation of
privacy, the District Court’s exclusion order plainly ran afoul of
black-letter precepts of Fourth A mendment law .
Notwithstanding the Government’s well-founded contention that
each defendant lacked “standing” for some of the suppression

“standing” concessions are supported by “evidence to
demonstrate that the defendant possessed a legitimate
expectation of privacy.” See Bouffard, 917 F.2d at 677. We
believe that view treats Fourth Amendment “standing” as a
jurisdictional requirement rather than an element of a Fourth
Amendment claim, and we believe it is inconsistent with Rakas.
Accordingly, we acknowledge the Government’s select
concessions of “standing” in the district court, we deem contrary
arguments waived, and we have no need to explore the
concessions further.

23
motions, the Court’s first order did not mention, much less
analyze, whether each defendant possessed a legitimate
expectation of privacy in the places searched. See Rakas, 439
U.S. at 140. Indeed, the Court apparently ordered the exclusion
of evidence based on its bare conclusion that the relevant
searches were illegal. The Court held:
Because I find a number of the searches
conducted on October 6, 2005 unreasonable under
the Fourth Amendment, I will suppress the
evidence seized during those searches. . . . In sum,
any evidence seized on warrants issued for 4049
Higbee Street, 5022, 5019, 5038, 5020, and 5034
Homestead street., [sic] as well as the warrant for
blood and saliva from Stearn is suppressed.

Stearn, 548 F. Supp. 2d at 193-194 (citation and quotation
omitted). As the accompanying order made clear, the Court
suppressed this evidence as to all three defendants, ignoring
Rakas’s directive that courts limit the exclusionary remedy to
individuals whose own Fourth Amendment rights have been
violated. Rakas, 439 U.S. at 139. For nearly forty years, the
Supreme Court has unwaveringly required the proponent of a
motion to suppress to “assert[] his own legal rights and interests
rather than basing his claim for relief upon the rights of third
parties.” E.g., id. at 139. This is black-letter law.

Strikingly, the Court’s across-the-board exclusion order
suppressed evidence against a defendant who did not even

24
challenge its admissibility. See Stearn, 548 F. Supp. 2d at 194-
195. Indeed, although Edward Stearn challenged only the
warrants for 5019 Homestead and his saliva, the District Court’s
wholesale suppression of evidence from the other searches
foreclosed the Government’s use of that evidence against him as
well. (See App. 98-108, 194-195.) The District Court thereby
made the exclusionary remedy available to a defendant who did
not even challenge a series of searches, much less prove an
expectation of privacy therein. This, too, was a fundamental
error.

We similarly disagree with the District Court’s treatment
of the expectation-of-privacy issue in its denial of the
Government’s motion to reconsider. In a footnote, the Court
explained that its previous order did not resolve the “standing”
question because the Government had “conceded” that issue as
to all three defendants:
The Government also seeks in its brief for
reconsideration to argue standing as to each of the
Defendants. At oral argument, the Government
conceded the standing issue was subservient to
the issue of probable cause. Because I find the
searches were unreasonable, the evidence will be
suppressed as to each of the three Defendants.

Stearn,2008 WL 2550582, at *4 n.2. That reading is wrong. In
its brief in opposition to the defendants’ motions, the

25
Government conceded the “standing” of each defendant to
challenge some searches and properly objected to each
defendant’s “standing” to challenge any other search. At the
outset of the suppression hearing, the Government told the Court
that its position on “standing” was reflected in its opposition
papers, but conceded Joseph Doebley’s right to challenge one
additional search – the search of 5038 Homestead. (App. 156-
157.) The Government then suggested that the hearing proceed
in “reverse order” and that the Court and parties address the
“probable cause issues first.” (App. 157.) Quite obviously, the
Government’s “reverse order” language reflected its belief that
the Court would not need to reach the “standing” issue because
it would resolve the probable cause and good faith issues in the
Government’s favor. When this did not happen, the Court was
obligated to address the “standing” issue anew. It was thus clear
error for the Court to conclude that the Government concede”
the defendants’ so-called “standing” to challenge all of the
disputed searches.

We conclude that the District Court erred in ordering the
suppression of evidence without regard to the defendants’ ability
to demonstrate legitimate expectations of privacy in the
locations searched. Although the District Court had discretion
to decide the issues of probable cause and good faith first, see
United States v. Varlack Ventures, 149 F.3d 212, 216 (3d Cir.
1998), it was required under Rakas to address the defendants’
Fourth Amendment “standing” for the searches it ultimately
determined were unreasonable. Its failure to do so was an

26
egregious error.

Notwithstanding the District Court’s failure to address
the defendants’ so-called “standing” to challenge the searches,
we cannot resolve this case on Rakas’s “standing” prong alone.
Because we recognize the Government’s express concessions
that each defendant had “standing” to challenge one or more
searches, this appeal requires us to decide the constitutionality
of the searches for which the Government conceded that any
defendant had “standing.” In particular, we must decide the
constitutional merits of the searches of: 4049 Higbee and 5038
Homestead as to Joseph Doebley; 5022 and 5034 Homestead as
to Michael Doebley; and 5019 Homestead as to Edward Stearn.
Additionally, we must decide whether the District Court erred
in concluding that the warrant for Edward Stearn’s saliva was
inadmissible as “fruit of the poisonous tree.” Moreover, because
the probable cause and good faith analyses are not defendant-
specific, any search we deem to be constitutional will be upheld
against all three defendants. By contrast, evidence from an
illegal search is suppressed only against the defendants who are
able to satisfy Rakas’s “standing” prong.

IV.

We now consider the Government’s arguments that each
search was supported by probable cause, or at the very least,

27
good faith reliance on a validly issued search warrant.A.

We exercise plenary review over the District Court’s
evaluation of the magistrate’s probable cause determination.
United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). By
contrast, we conduct only a deferential review of the initial
probable cause determination made by the magistrate. Illinois v.
Gates, 462 U.S. 213, 236 (1983). This is the same deferential
review the District Court should have conducted. Id. at 238-239.

The role of a reviewing court is not to decide probable
cause de novo, but to determine whether “the magistrate had a
substantial basis for concluding that probable cause existed.” Id.
at 238 (citation and quotation omitted). As we explained in
Jones,
[O]ur role is not to make our own assessment as
to whether probable cause existed. Rather, we are
constrained to determine only whether the
affidavit provides a sufficient basis for the
decision the magistrate judge actually made.

Jones, 994 F.2d at 1057. If a substantial basis exists to support
the magistrate’s probable cause finding, we must uphold that
finding even if a “different magistrate judge might have found
the affidavit insufficient to support a warrant.” Conley, 4 F.3d
at 1205. Although we do not merely “rubber stamp a
magistrate’s conclusions,” Whitner, 219 F.3d at 296 (citation

28
and quotation omitted), we must heed the Supreme Court’s
direction that “doubtful or marginal cases in this area should be
largely determined by the preference to be accorded to
warrants.” Gates, 462 U.S. at 237 n.10 (citation and quotation
omitted).

Probable cause is a “fluid concept” that “turn[s] on the
assessment of probabilities in particular factual contexts.” Id. at
232. When presented with an application for a search warrant,
the magistrate must “make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit .
. . there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Id. at 238. Although
every affidavit ideally would contain direct evidence linking the
crime with the place to be searched, a magistrate may issue a
search warrant even without direct evidence. Probable cause can
be, and often is, inferred from “the type of crime, the nature of
the items sought, the suspect’s opportunity for concealment and
normal inferences about where a criminal might hide
[evidence].” Jones, 994 F.2d at 1056 (citation and quotation
omitted). Because probable cause is a “practical, nontechnical
conception,” we are concerned with “the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.” Gates, 462 U.S. at 231 (citation
and quotation omitted).
1.

29
 The Government argues, and we agree, that the District
Court’s probable cause analysis erroneously discounted the
reliability of the confidential informant. In the Court’s view,
“[t]he affidavit contains not a shred of evidence regarding the
reliability of the informant,” and “provides no assertion the
officers believed the confidential informant, no history of past
cooperation by the informant, no drug buys by the informant,
and no inside information supplied by the informant.” Stearn,
548 F. Supp. 2d at 190, 192. On that basis, the Court gave no
weight whatsoever to the informant’s tip. This was error.

A magistrate may issue a warrant relying primarily or in
part upon the statements of a confidential informant, so long as
the totality of the circumstances gives rise to probable cause.
Before the Supreme Court’s decision in Gates, many courts held
under the Aguilar-Spinelli doctrine that an informant’s
statements could not furnish probable cause unless the affidavit
established both the informant’s “veracity” and his “basis of
knowledge.” See Spinelli v. United States, 393 U.S. 410 (1969);
Aguilar v. Texas, 378 U.S. 108 (1964). This standard was
difficult to meet; as the Gates Court observed, “the veracity of
persons supplying anonymous tips is . . . largely unknown, and
unknowable,” and consequently, “anonymous tips seldom could
survive a rigorous application of either of the Spinelli prongs.”
Gates, 462 U.S. at 237. In the Court’s view, “a conscientious
assessment of the basis for crediting such tips is required by the
Fourth Amendment,” but “a standard that leaves virtually no

30
place for anonymous citizen informants is not.” Id. at 238.

When the Gates Court abandoned the two-pronged
Aguilar-Spinelli test, it reaffirmed the relevance of an
informant’s “veracity” and “reliability” but ruled that “these
elements should [not] be understood as entirely separate and
independent requirements to be rigidly exacted in every case.”
Gates, 462 U.S. at 230. Gates instead instructs that “a deficiency
in one [element] may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other, or
by some other indicia of reliability.” Id. at 233. In particular,
Gates endorsed independent “[police] corroboration of details of
an informant’s tip” as an important method for establishing a
tip’s reliability. Id. at 241.

On the facts of Gates, neither “veracity” nor a “basis of
knowledge” was apparent from an informant’s anonymous letter
advising police that the Gates were drug dealers who stored
large quantities of drugs in their home. In relevant part the
informant’s tip stated:
Most of [their] buys are done in Florida. Sue
[Gates, Lance Gates’s] wife drives their car to
Florida, where she leaves it to be loaded up with
drugs, then Lance flys [sic] down and drives it
back. Sue flys [sic] back after she drops the car
off in Florida. May 3 she is driving down there
again and Lance will be flying down in a few days

31
 to drive it back. At the time Lance drives the car
back he has the trunk loaded with over $
100,000.00 in drugs.

Id. at 225. Even so, the Gates Court found probable cause to
support a warrant where police investigation verified specific
details of the tip. Police investigation confirmed that Lance
Gates flew from Chicago to West Palm Beach, Florida on May
5 and checked into a room registered to Susan Gates. The next
morning, Lance departed with an unidentified woman, heading
toward Chicago in a Mercury bearing the Illinois license plates
assigned to the Gates’s Hornet station wagon. When Lance and
Susan Gates arrived home twenty-two hours later, police
executed warrants to search their car and home. Those searches
produced vast quantities of marijuana, weapons and other
contraband.

The Illinois Supreme Court affirmed the suppression of
this evidence, reasoning that even when supplemented by police
investigation, the anonymous tip did not meet the two-pronged
Aguilar-Spinelli test. Rejecting that test, the Supreme Court
upheld the searches, holding that “the judge could rely on the
anonymous letter, which had been corroborated in major part by
[police] efforts.” Id. at 215. The police corroboration of all of
the letter’s predictions about the Gates’ peculiar travel, by plane
and car, to and from Florida, “indicated, albeit not with
certainty, that the informant’s other assertions also were true.”
Id. at 244. This corroboration provided a “substantial basis for

32
crediting the hearsay” because it “reduced the chances of a
reckless or prevaricating tale.” Id. at 244-245 (citations and
quotations omitted). Even though police investigation
corroborated only “seemingly innocent activity,” that activity
“became suspicious in light of the initial tip.” Id. at 243 n.13
(citations and quotation omitted). Above all, Gates affirmed “the
value of [police] corroboration of details of an informant’s tip”
as a viable basis for crediting the hearsay tip of a confidential
informant. Id. at 241.

As in Gates, the magistrate judge in this case had a
“substantial basis for crediting the [informant’s] hearsay” tip
because the tip was corroborated in significant part by
independent police investigation. Id. at 245 (citations and
quotations omitted). As set forth above, the informant alleged
that Joseph Doebley sold drugs “in weight” with his brother
Michael, and that Edward Stearn was his supplier. Crucially,
officers corroborated Joseph Doebley’s drug involvement when
they observed the confidential informant consummate a
controlled buy of 3.5 grams of cocaine from Joseph Doebley at
the intersection of Higbee and Cottage. One week later, officers
obtained additional corroboration when they observed a white
male depart the Comly gym after speaking with Doebley, sell
3.5 grams of cocaine to another white male, return to 4808
Comly, and count and deliver cash to Joseph Doebley. Just as
the informant alleged, both sales were “in weight.”

33
 Police investigation additionally confirmed the credibility
of the informant’s statement that Joseph Doebley’s cocaine
business was operated from a gym on the 4800 block of Comly
Street. Consistent with the informant’s allegations, real estate
records indicated that Joseph Doebley owned 4808 Comly, and
police confirmed that Joseph Doebley had installed a gym at that
location. Additionally, police connected 4808 Comly with both
of the drug deals documented in the affidavit, as Joseph Doebley
left that property before the controlled buy and received
proceeds there after the apparent sale through an agent.

The informant also demonstrated knowledge of Joseph
Doebley’s home and cars. The informant averred that Joseph
Doebley maintained a home on the 4000 block of Higbee Street,
and that he operated a blue-and-white pickup truck and a rust-
colored Impala. Real estate checks revealed that 4049 Higbee
was owned by Jane Betty Doebley – an obvious relation of
Joseph Doebley – and on October 4 he apparently spent the
night there after entering at will. Consistent with the tip, police
later observed Joseph Doebley operating each of the vehicles.

Likewise, police corroborated elements of the
informant’s tip relating to Michael Doebley and Edward Stearn.
In particular, the informant told police that Edward Stearn lived
on the 5000 block of Homestead, which officers confirmed
when they learned that Edward Stearn owned 5019 Homestead.
Additionally, police confirmed that Edward Stearn had three

34
prior arrests for possession with intent to distribute. The
affidavit reported that Michael Doebley had two such arrests.
That information corroborated the informant’s allegations about
Michael Doebley and Edward Stearn because “[t]he use of prior
arrests . . . is often helpful” to establish probable cause,
particularly where “the previous arrest or conviction involves a
crime of the same general nature as the one which the warrant
is seeking to uncover.” Conley, 4 F.3d at 1207.

Officers’ October 5 surveillance additionally
corroborated, albeit circumstantially, the informant’s statement
that Joseph Doebley, Michael Doebley and Edward Stearn
worked together in drug-dealing operations. That afternoon,
Stearn’s residence at 5019 Homestead appeared to be a focal
point of Joseph and Michael Doebley’s movements among
properties on Homestead Street and Higbee Street. Michael
Doebley was seen departing 5019 Homestead and driving to
4808 Comly, the location with the strongest nexus to the two
documented drug deals. Michael Doebley entered 4808 Comly
and left with Joseph Doebley; both men returned to and entered
5019 Homestead. Joseph Doebley then exited 5019 Homestead,
entered 5022 Homestead and returned to 4808 Comly with an
unidentified white male. Joseph Doebley then returned to
Homestead Street and again entered 5019 Homestead; thereafter
he entered 5017 Homestead and used keys to enter 5022
Homestead and 5028 Homestead. Although not direct evidence,
we find circumstantial corroboration of the informant’s tip in the

35
Doebley brothers’ peculiar shuttling among these properties and
their frequent stops at 4808 Comly, which police had linked to
two drug deals. We take guidance from Gates, which instructs
that “[if] an informant is right about some things, he is more
probably right about other facts.” Gates, 462 U.S. at 244
(quoting Spinelli, 393 U.S. at 427 (White, J., concurring)). We
therefore find no merit in Edward Stearn’s assertion that the
magistrate lacked a substantial basis for crediting the
informant’s tip insofar as it suggested that evidence would be
found at 5019 Homestead.

Contrary to the District Court’s conclusion, the police
officers’ corroboration was not insufficient because it related
only “innocent details” or details available to the “casual
observer.” Id. at 229; Stearn, 2008 WL 2550582, at *3. As an
initial matter, Gates recognized that “seemingly innocent
activity [might] bec[o]me suspicious in light of the initial tip,”
which demonstrably was the case here. Gates, 462 U.S. at 243
n.13 (citations and quotation omitted). Moreover, unlike the
wholly innocent behavior observed in Gates, police in this case
linked Joseph Doebley with two drug sales and confirmed the
informant’s claim that the Comly gym was linked to the
defendants’ drug activity. In our view, Michael and Joseph
Doebley’s “seemingly innocent” movements among the Comly
gym and the homes on Homestead Street (including Edward
Stearn’s residence at 5019 Homestead) became suspicious in
view of the initial tip and police confirmation that Joseph

36
Doebley sold drugs, sometimes using an agent, and apparently
from the Comly gym. In view of the foregoing, we conclude that
the magistrate judge had a substantial basis for crediting the
informant’s tip, and we defer to his decision to do so.

2.

When the crime under investigation is drug distribution,
a magistrate may find probable cause to search the target’s
residence even without direct evidence that contraband will be
found there. In a series of cases beginning with Whitner, 219
F.3d at 298, we recognized that “evidence associated with drug
dealing needs to be stored somewhere, and . . . a dealer will have
the opportunity to conceal it in his home. After all, a dealer
could logically conclude that his residence is the best, and
probably the only, location to store items such as records[,] . . .
cash, . . . guns, . . . and large quantities of drugs to be sold.” Our
subsequent decisions in Hodge and Burton embraced this
inference also. See Burton, 288 F.3d at 104 (“[I]t is a reasonable
inference to conclude that drug dealers often store evidence of
drug crimes in their residences[.]”); Hodge, 246 F.3d at 306 (“It
is reasonable to infer that a person involved in drug dealing on
such a scale would store evidence of that dealing at his home.”).

The Government contends that the District Court erred in
declining to apply the inference from Whitner, Hodge, and

37
Burton to find probable cause to search 4049 Higbee and 5038
Homestead (as Joseph Doebley’s residences) and 5019
Homestead (as Stearn’s residence). Although we postpone our
discussion of whether these searches were ultimately supported
by probable cause, we agree with the Government that the
District Court’s refusal to consider these cases resulted from its
unduly restrictive parsing of our case law.

In its suppression order, the District Court ruled that the
inference from Whitner, Hodge and Burton only applied
when large quantities of drugs are involved,
Whitner, 219 F.3d at 292; when sales are made in
the vicinity of the dealers’s [sic] houses, Hodge,
246 F.3d at 306; or when some other recitation in
the affidavit support [sic] the inference a large-
scale drug operation is involved. Burton, 288 F.3d
at 105. None of those factors is present in this
affidavit.

Stearn, 548 F. Supp. 2d at 192.

In its denial of the Government’s motion to reconsider,
the District Court clarified its view that the Burton inference
applies only where there is no “suggestion that any of the
defendants had any other place in which to hide their
contraband.” Stearn, 2008 WL 2550582, at *4. Applying that
principle, the Court concluded that because the defendants

38
initiated drug deals from the 4808 Comly gym, it was “more
reasonable” to infer that the gym was the situs of contraband. Id.
at *5. In the Court’s view, the searches violated the Fourth
Amendment because the defendants’ homes lacked a “recited
nexus to the crimes alleged.” Id. at *5.

Although we agree that the Fourth Amendment precludes
the search of a home lacking a “nexus” to the alleged crimes, we
disagree with the Court’s assessment of what constitutes a nexus
sufficient to justify a search. The starting point is that a
magistrate judge may infer probable cause from “the type of
crime, the nature of the items sought, the suspect’s opportunity
for concealment and normal inferences about where a criminal
might hide . . . [evidence].” Jones, 994 F.2d at 1056. Proceeding
from that premise, Hodge, Whitner and Burton permit the
magistrate to infer from “the type of crime,” “nature of the items
sought” and the defendant’s “opportunit[ies] for concealment”
that a drug dealer in some circumstances may use his home to
store evidence associated with drug dealing. Although the
District Court’s bright-line rules were based on factual elements
present in Whitner, Hodge and Burton, the factual circumstances
of those cases do not limit the inferences a detached magistrate
is permitted to draw. We understand the District Court’s
inclination to read these cases narrowly, but we must reject its
attempt to substitute bright-line rules for a more “fluid . . .
assessment of probabilities in particular factual contexts.” Gates,
462 U.S. at 232. Gates directs, and we agree, that probable cause
is an inquiry “not readily, or even usefully, reduced to a neat set

39
of legal rules.” Id.

United States v. Burton, 288 F.3d at 104, the most recent
in this line of cases, acknowledged the limits of the Whitner-
Hodge inference without resorting to bright-line rules. Although
we reaffirmed the “reasonable inference . . . that drug dealers
often store evidence of drug crimes in their residences,” we held
that “application of this inference is based on evidence
supporting three preliminary premises: (1) that the person
suspected of drug dealing is actually a drug dealer; (2) that the
place to be searched is possessed by, or the domicile of, the
dealer; and (3) that the home contains contraband linking it to
the dealer’s activities.” Id. Burton answered a question both
Whitner and Hodge left open – whether a magistrate judge may
infer probable cause to search a defendant’s residence solely
from evidence suggesting that the defendant is a drug dealer.12

12
Whitner did not reach the question “whether the fact
that Whitner appears to be a drug dealer is sufficient under the
circumstances of this case to conclude that he would be likely to
store evidence of his drug dealing at his residence.” Whitner,
219 F.3d at 298. There, the “affidavit offer[ed] an additional
important piece of evidence linking the crime to the [] location
[to be searched]”: the defendant’s suspicious and deceptive
responses to police questioning about his residence, which
“logically suggest[ed] that Whitner was storing some evidence
of illegal activity at the apartment.” Id. at 298-299.

40
Burton’s third prong answered this question in the negative. In
demanding some evidence “that the home contains contraband
linking it to the drug dealer’s activities,” we moored our “drug
dealer” inferences back to the “practical, common-sense
decision whether, given all the circumstances set forth in the
affidavit . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Gates,
at 238; cf. United States v. Savoca, 739 F.2d 220, 224-225 (6th
Cir. 1984). We recognized that the search of a drug dealer’s
home would be unreasonable if the affidavit suggested no
reason to believe contraband would be found there.

Thereafter in Hodge, the affidavit also recited a “nexus”
between the defendant’s residence and the drug distribution
crimes under investigation. We observed that the sheer quantity
of crack cocaine possessed by the defendant (one-fourth to one-
half of one kilogram) – suggesting large scale operation – gave
rise to the inference that the defendant stored evidence at his
home. Hodge, 246 F.3d at 306-307.That inference was
buttressed by the circumstances that probable cause existed to
arrest Hodge and that “Hodge’s home was in the same city
where he was to make [a] drug delivery, rendering his home a
more likely repository of his drug-related paraphernalia.” Id. at
307. Finally, we held that the magistrate was entitled to “give
considerable weight” to the averment of the experienced affiant
officer, who detailed his belief that the defendant’s home would
likely contain evidence. Id. (citation and quotation omitted)

41
 Our case law, from Jones to Burton, suggests many
factors that help establish the required nexus between a
defendant’s drug-dealing activities and his home. These include:
large-scale operations,13 a defendant’s attempts to evade
officers’ questions about his address,14 the conclusions of
experienced officers “regarding where evidence of a crime is
likely to be found,” 15 the proximity of the defendant’s residence
to the location of criminal activity,16 probable cause to arrest the
defendant on drug-related charges,17 and the tip of a “concerned
citizen” that a specific stolen item would be found in the
defendant’s residence.18 Contrary to the District Court’s ruling,
these factors are not requirements. Nor are these factors
exhaustive.

We similarly reject the District Court’s assumption that

13
Burton, 288 F.3d at 104; Hodge, 246 F.3d at 306.
14
Burton, 288 F.3d at 104-105; Whitner, 219 F.3d at 298-
299.
15
Hodge, 246 F.3d at 307; see also Burton, 288 F.3d at
104.
16
Hodge, 246 F.3d at 307.
17
Id.
18
Jones, 994 F.2d at 1056-1057.

42
a magistrate may not infer probable cause to search a drug
dealer’s residence if the dealer “had any other place in which to
hide [his] contraband.” Stearn, 2008 WL 2550582, at *4. As a
logical matter, we recognize that a drug dealer’s ready access to
“private places” outside his home weakens the inference that his
residence is “the best, and probably the only, location to store
items.” Whitner, 219 F.3d at 298. But even if another location
is an equally likely repository of evidence, a magistrate may
infer probable cause to search the drug dealer’s home so long as
the affidavit establishes a nexus between the dealer’s home and
the crime under investigation. As with the standard probable
cause inquiry, a magistrate’s task is simply “to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Gates, 462 U.S. at 238. We again reject the
District Court’s attempt to limit the “normal inferences [a
magistrate may draw] about where a criminal might hide . . .
[evidence].” Jones, 994 F.2d at 1056 (citation and quotation
omitted).
B.

The Government contends that even if we agree that
some or all of the searches were invalid, we must reverse the
District Court’s suppression order because the executing officers
were entitled to rely in good faith on the warrants. We note at
the outset that the Court’s initial opinion relegated this most

43
critical issue to a three-sentence footnote, and that its second
order repackaged the cursory footnote into two conclusory
paragraphs. Although we will not here analyze the good faith
exception with respect to the individual searches, the District
Court’s good faith analysis impels us to review the governing
principles.

Even if the magistrate judge lacked a sufficient basis for
his probable cause determinations, that fact alone does not
warrant the “extreme sanction of exclusion.” Leon, 468 U.S. at
926. In Leon, the Supreme Court established the good faith
exception to the exclusionary rule, carefully tethering the
exclusionary remedy to its overarching policy of “deterring
official unlawlessness.” Id. at 907 n.6 (citations and quotations
omitted). Balancing the exclusionary remedy’s “substantial
costs” against its deterrent “benefits,” Leon held that the
exclusionary remedy was not justified where officers act in the
“objectively reasonable belief that their conduct d[oes] not
violate the Fourth Amendment.” Id. at 918. If an officer obtains
a warrant and executes it in good faith, “there is no police
illegality and thus nothing to deter.” Id. at 921. Accordingly, a
court should not suppress evidence seized under a warrant’s
authority, even if that warrant is subsequently invalidated, unless
“a reasonably well trained officer would have known that the
search was illegal despite the magistrate’s authorization.”
United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir. 2002)
(quoting Leon, 468 U.S. at 922 n.23).

44
 Ordinarily, the “mere existence of a warrant . . . suffices
to prove that an officer conducted a search in good faith,” and
will obviate the need for “any deep inquiry into reasonableness.”
Hodge, 246 F.3d at 308 (citing Leon, 468 U.S. at 922 n.23);
Leon, 468 U.S. at 922 (citation and quotation omitted). Indeed,
we neither expect nor require police to perform complex legal
analysis in the field, for they are untrained in the law and are
often called to make “hurried judgment[s].” Zimmerman, 277
F.3d at 436 (quoting Leon, 468 U.S. at 922 n.23). In “narrow
circumstances,” however, the good faith doctrine is not
sufficient to override the warrant’s lack of probable cause.19

19
We have identified four narrow situations in which an
officer’s reliance on a warrant is not reasonable:

(1) the magistrate issued the warrant in reliance
on a deliberately or recklessly false affidavit;

(2) the magistrate abandoned his judicial role and
failed to perform his neutral and detached
function;

(3) the warrant was based on an affidavit “so
lacking in indicia of probable cause as to render
official belief in its existence entirely
unreasonable;” or

(4) the warrant was so facially deficient that it

45
Relevant for our purposes, the good faith exception does not
apply where the affidavit is “so lacking in indicia of probable
cause as to render official belief in its existence entirely
unreasonable.” Leon, 468 U.S. at 923 (citation and quotation
omitted); Williams, 3 F.3d at 74 n.4. These are the rare
circumstances in which, although a neutral magistrate has found
probable cause to search, a lay officer executing the warrant
could not reasonably believe that the magistrate was correct.

Although few of our cases ultimately condemn officers’
reliance on a warrant as unreasonable, this “exception to the
good faith exception” retains vitality in our Court. See
Zimmerman, 277 F. 3d at 429; id. at 440 (Alito, J., dissenting).
In Zimmerman, child pornography was seized pursuant to a
warrant to search for both adult and child pornography, based on
an affidavit’s allegation that the defendant had shown adult
pornography to a child some six to ten months prior. Id. at 429
(majority opinion). With little difficulty, we determined that no
probable cause existed to search for either type of pornography:
the affidavit contained no evidence suggesting the defendant
possessed child pornography, and information linking the

failed to particularize the place to be searched or
the things to be seized.

Williams, 3 F.3d 69, 74 n.4 (3d Cir. 1993). This case implicates
only the third exception to the Leon exception to the
exclusionary rule.

46
defendant with adult pornography was stale. Id. at 432-436. We
thereafter determined that the face of the warrant “preclude[d]
reasonable reliance” because “[a]ny reasonably well-trained
officer in the stationhouse shop would recognize [the affidavit]
as clearly insufficient.” Id. at 437 (citations and quotations
omitted). As we explained,
Leon . . . weakened the exclusionary rule, but it
did not eviscerate it. Good faith is not a magic
lamp for police officers to rub whenever they find
themselves in trouble. . . . That aside, the good
faith exception requires a sincerely held and
objectively reasonable belief that the warrant is
based on a valid application of the law to all
known facts. The objective standard requires
officers to have a reasonable knowledge of what
the law prohibits.

Zimmerman, 277 F.3d at 437-438 (citations and quotations
omitted).

To some degree we attribute the District Court’s brusque
good faith analysis to its conclusion that the affidavits were
woefully insufficient to establish probable cause. Although we
ultimately disagree with that conclusion, we do not necessarily
view the Court’s truncated good faith analysis as an error
separate and apart from its probable cause determinations.
Because the probable cause inquiry remains highly relevant to
the reasonableness of an officer’s reliance on a warrant, it may

47
be proper in some cases for a court to truncate its good faith
analysis if an affidavit is truly “bare bones.” See Leon, 468 U.S.
at 926.

Notwithstanding the Court’s probable cause conclusion,
however, truncation of the good faith analysis was not proper
here. As we have explained, the affidavit was a far cry from
“bare bones,” as the District Court characterized it. As in Leon,
the supporting affidavit implicated the defendants via the tip of
“a confidential informant of unproven reliability,” and detailed
officers’ subsequent “extensive investigation,” including
verification of criminal, real estate and motor registry records,
and observations of drug transactions and other activity
evocative of drug dealing. Leon, 468 U.S. at 901. Of course,
where multiple warrants are supported by a single affidavit, an
otherwise detailed affidavit may nevertheless be “bare bones”
with respect to some of the warrants sought.20 But that
demonstrably was not the case for every warrant the Ryan
affidavit sought. To the contrary, Ryan’s affidavit to some

20
See United States v. Mayneng Xiong, No. 07-CR-112,
2007 WL 2703859, at *8 (E.D. Wis. Sept. 14, 2007) (“[O]ften
a single affidavit setting forth facts to establish probable cause
is submitted to the issuing judge in support of search warrants
for several locations involved in one common investigation. In
such case, the description of the places to be searched and the
items to be seized are individualized and vary based on the
location and supporting probable cause.”).

48
degree linked every location with either drug activity or an
alleged or confirmed drug dealer. See infra Part IV.C. Without
a doubt, this affidavit was not so lacking in probable cause that,
without analysis, the District Court could assume that each of
the magistrate’s probable cause determinations involved “a mere
ratification of the bare conclusions of others.” Gates, 462 U.S.
at 239; see Zimmerman, 277 F.3d at 436-437.21 On these facts,
we reject the District Court’s categorical approach to the good
faith exception; here, a property-by-property analysis was

21
See Gates, 462 U.S. at 239 (characterizing as “bare
bones” the affidavit in Nathanson v. United States, 290 U.S. 41,
54 (1933), which stated only that the affiant “‘has cause to
suspect and does believe’ that liquor illegally brought into the
United States is located on certain premises”); id.
(characterizing as bare bones the affidavit in Aguilar, 378 U.S.
at 108, which included only “an officer’s statement that
‘[affiants] have received reliable information from a credible
person and do believe’ that heroin is stored in a home”); see
also, e.g., United States v. Leake, 998 F.2d 1359, 1367 (6th Cir.
1993) (finding “bare bones” an affidavit based on an anonymous
tip where the investigating officer merely “posted himself
outside the house for only two hours on two nights, where he
observed absolutely nothing out of the ordinary”); United States
v. Barrington, 806 F.2d 529, 531 (5th Cir. 1986) (characterizing
as “bare bones” an affidavit stating “only that Captain Solomon
‘received information from a confidential informant’ who is
‘known to Captain Phil Solomon and has provided information
in the past that has led to arrest and convictions’”).

49
required.

Additionally, the District Court’s good faith analysis
plainly charged the executing officers with a greater knowledge
of the law than our precedent requires. Even though the District
Court ultimately declined to credit the informant’s tip and
declined to apply the Burton inference to Joseph Doebley and
Edward Stearn’s residences, it did so only after a detailed
analysis of our case law, analysis we neither expect nor require
from “nonlawyers in the midst and haste of a criminal
investigation.” United States v. Ventresca, 380 U.S. 102, 108
(1965). Given the complexity of the District Court’s probable
cause analysis, we find untenable its categorical conclusion that
no search could be upheld under the good faith exception.

C.

We now turn to the question whether the informant’s tip,
in conjunction with the evidence adduced by officers in
subsequent investigation, afforded the magistrate with a
substantial basis for determining probable cause existed to
search each of the properties at issue. Mindful of our deferential
standard of review, we inquire only whether the magistrate had
a substantial basis for determining “there [was] a fair probability
that contraband or evidence of a crime will be found in a
particular place.” Gates, 462 U.S. at 238. Thereafter, for those

50
properties for which we determine the magistrate’s probable
cause determination lacked a substantial basis, we consider
whether evidence from those searches is nevertheless admissible
under the Leon good faith exception to the exclusionary rule.

1. 4049 Higbee Street

Applying the foregoing principles, we hold that the
magistrate had a substantial basis for determining there was a
fair probability that contraband would be found at 4049 Higbee.
With respect to 4049 Higbee, the affidavit met each of the
Burton prongs, justifying the inference that evidence of Joseph
Doebley’s drug-dealing activities would be found there. First,
the affidavit provided powerful evidence that Joseph Doebley
was a drug dealer. As set forth above, the affidavit detailed an
informant’s tip that Joseph Doebley was a drug dealer. Police
then confirmed Joseph Doebley’s involvement in two drug
transactions: a controlled buy and a sale apparently made
through an agent. (App. 88.)

Second, the affidavit contained ample evidence that 4049
Higbee was Joseph Doebley’s home. The informant’s tip, which
we have deemed reliable, averred that Joseph Doebley resided
in the 4000 block of Higbee Street. Investigating that tip, police
confirmed that an apparent relative of Joseph Doebley owned a
home at 4049 Higbee, reasonably suggesting that 4049 Higbee

51
was the home that the informant ascribed to Joseph Doebley.
(Id.) Thereafter, while under police surveillance, Joseph
Doebley apparently admitted himself into that residence: On
October 4, 2005, he parked his blue-and-white pickup truck
behind 4049 Higbee, “entered the rear yard of 4049 Higbee that
contained a white pit bull,” “opened the rear garage door,” and
“entered this location” at approximately 11:50 p.m. Police
terminated surveillance at 12:30 a.m., but observed Doebley’s
pickup truck parked at the rear of 4049 Higbee at approximately
7:15 a.m. the next morning, suggesting that he remained there
overnight. (Id.) This police surveillance, in the context of the
informant’s tip that Joseph Doebley lived on the 4000 block of
Higbee, leads us to conclude that the affidavit afforded the
magistrate with significant, though not conclusive, evidence that
Joseph Doebley resided at 4049 Higbee. (Id.)

Third, the affidavit suggested a nexus between 4049
Higbee and Joseph Doebley’s drug dealing activities.
Principally, the informant’s tip averred that Joseph Doebley sold
drugs out of his 4808 Comly gym and his house on Higbee
Street. (Id.) Police investigation substantially corroborated the
informant’s allegations regarding the Comly gym, suggesting
the informant was also correct that Doebley sold drugs out of his
Higbee Street home. In addition, Joseph Doebley apparently
slept at 4049 Higbee the evening after he collected proceeds
from a drug sale, suggesting the possibility that he entered that
residence with drugs or drug-sale proceeds on his person. (See

52
id.) The magistrate may have additionally taken judicial notice
that 4049 Higbee is a mere half-mile from the location of Joseph
Doebley’s September 28 drug sale, made at the intersection of
Higbee and Cottage Streets. In fact, that sale occurred almost
exactly halfway between the 4808 Comly gym and 4049 Higbee
Street, on a virtually direct route.22

Finally, the magistrate may have inferred that 4049
Higbee would contain contraband because the affidavit
suggested that it was part of a network of suspiciously titled
homes and cars, each connected to at least one of the three
defendants. During their investigation, police learned that four
properties in the vicinity exhibited a peculiar pattern of
co-ownership. From real estate records, police ascertained that
4049 Higbee was listed as a co-owner address for 5038
Homestead, which was owned by Ruth Nolan; 4049 Higbee also
received water bills for that address. (Id.) Two other properties
were similarly linked: property records showed that 5028
Homestead was owned by Patrick Fox, but listed 5019

22
Thus this was not a case in which the distance between
the defendant’s home and the location of the crime was so great
as to render the defendant’s home an implausible repository of
evidence. Cf. Savoca, 739 F.2d at 224-225 (declining to apply
the normal inference that known bank robbers conceal evidence
in private places, because the robbery under investigation
occurred more than 2,000 miles from the location searched).

53
Homestead as a co-owner address. (Id. at 89.) That property, in
turn, was owned by Edward Stearn, who the informant alleged
to be Joseph Doebley’s dealer. (Id. at 88, 89.) In addition, the
unusual circumstance that Joseph Doebley appeared to have
at-will access to 5017, 5019, 5022, 5028, 5030 and 5038
Homestead reasonably suggested an even more substantial
network of collectively or communally owned properties. (Id.)

This pattern extended to cars, too. The blue-and-white
pickup truck operated by Joseph Doebley was registered not in
his own name, but to one Steven Little. (Id. at 88.) The
rust-colored Impala operated by Joseph Doebley was registered
in his own name, but registration records listed an address in
Richboro, Pennsylvania. (Id.) Similarly, the Jeep Grand
Cherokee operated by Michael Doebley was registered in his
own name, but the address on file was 5019 Homestead –
Edward Stearn’s home. (Id. at 89.)

From this unusual pattern of home co-ownership, access,
and cross-listed addresses, the magistrate judge reasonably may
have inferred that the defendants had a stronger connection to
the properties and cars than was immediately apparent. The
judge may have inferred an intent by the defendants’ to conceal
their true addresses. See Burton, 288 F.3d at 104-105; Whitner,
219 F.3d at 298-299 (noting that defendant’s attempted
concealment of association with home logically suggests the
defendant “was storing some evidence of illegal activity [there]
which he did not want the agents to discover”). Alternatively,

54
these facts may have suggested that the defendants deliberately
obscured their ownership of the cars and homes at issue, perhaps
to avoid criminal forfeiture. Cf. United States v. Tramunti, 513
F.2d 1087, 1102 (2d Cir. 1975) (“Experienced narcotics officers
know . . . criminals are aware that cars used to transport
narcotics or other contraband, if seized, are generally subject to
forfeiture.”). On this score, it would have been helpful if Officer
Ryan had furnished his theory as to the import of these
circumstances, which police apparently believed to suggest that
the defendants owned cars and homes in the names of straws.
(See e.g., Grand Jury Indictment ¶ 4-5; App. 53-54.) Even so,
the affidavit’s description of these ownership and title
irregularities (of which 4049 Higbee was part) lends support to
the inference that drugs would be found at 4049 Higbee. That
inference, together with the informant’s corroborated tip and
4049 Higbee’s proximity to the Comly gym – the location of the
controlled buy – provide a nexus sufficient to suggest “that the
[4049 Higbee] home contain[ed] contraband linking it to the
dealer’s drug activities.” Burton, 288 F.3d at 104.

Because the affidavit contained evidence meeting
Burton’s three “preliminary premises,” we hold that a
substantial basis existed for the magistrate’s determination that
probable cause existed to search 4049 Higbee. “To be sure, ‘it
would have been preferable if [Officer Ryan] could have
supplied more information linking [4049 Higbee Street] to the
criminal activity.’” Hodge 246 F.3d at 307 (quoting Whitner,

55
219 F.3d at 299). Nevertheless, “the fact remains that he did
bring the evidence . . . to a magistrate judge, who determined
that there was probable cause to issue the warrant[].” Id.
(quoting Jones, 994 F.2d at 1057). In view of the “Fourth
Amendment’s strong preference for searches conducted
pursuant to a warrant,” we are further persuaded to uphold the
search of 4049 Higbee. Id. (quoting Ventresca, 380 U.S. at 108).

2. 5019 Homestead Street & Stearn’s Saliva

It is a closer question whether the magistrate had a
substantial basis for concluding that the affidavit established
probable cause to search Edward Stearn’s home at 5019
Homestead. Though not overwhelming, the affidavit contained
circumstantial evidence that Stearn was a drug dealer, raising
the inference that contraband would be found in Stearn’s
residence. Notwithstanding this “common-sense inference,”
Burton directs that probable cause is established only if the
affidavit contains evidence that (1) the defendant was a drug
dealer, (2) the place to be searched was his home and (3) that
home had a nexus to the defendant’s drug activity. In our view,
the affidavit adequately supports the second and third
“preliminary premises” of Burton. It is a close question,
however, whether the affidavit contained adequate evidence to
support Burton’s first “preliminary premise” – that Stearn was
a drug dealer – to raise the inference that drugs would be stored
at his home. Consequently, we will resolve 5019 Homestead

56
under the Leon good faith exception, and we uphold the search
on those grounds.

The strongest evidence that Stearn was a drug dealer was
the confidential informant’s assertion that Stearn was Joseph
Doebley’s supplier. (App. 88.) Although the affidavit did not
directly corroborate this aspect of the informant’s tip, the
informant’s demonstrated accuracy in other regards lends
credibility to this assertion. In light of the tip, circumstantial
evidence supported the inference that Stearn was a drug dealer,
including Joseph and Michael Doebley’s access to 5019
Homestead and its apparent centrality to their October 5
shuttling among Homestead Street properties and the Comly
gym. (Id. at 89.) Also relevant were Stearn’s three prior drug
distribution arrests and 5019 Homestead’s apparent relationship
to 5028 Homestead and Michael Doebley’s vehicle. (Id. at 88-
89.) Indeed, even Stearn’s conspicuous association with Joseph
Doebley, a known drug dealer, supports the inference that Stearn
was involved in the drug trade. See Burton, 288 F.3d at 104
(quoting Whitner, 219 F.3d at 298).

Although Burton does not specify the quanta of evidence
required to support each “preliminary premise,” we are mindful
that the evidence that Stearn was a drug dealer is weaker than
the evidence marshaled against the defendants in Whitner,
Hodge, and Burton. In the Whitner affidavit, the affiant stated
that the defendant “had been arrested as a result of a controlled

57
delivery of 5.75 pounds of methamphetamine.” Whitner, 219
F.3d at 298. As described in the Hodge affidavit, on an
informant’s tip, officers were present at the defendant’s
scheduled delivery of crack cocaine; when he saw them, he fled,
dropped his drugs near a trash can, and was immediately
arrested. Hodge, 246 F.3d at 304. Finally, according to the
Burton affidavit, a wired, reliable informant attempted to
purchase drugs from a drug dealer under investigation, but
inadvertently interrupted an apparently major drug transaction
between that dealer and the defendant. Burton, 288 F.3d at 94-
95. We found probable cause to search the defendant’s home
based on the informant’s account, officers’ statements that they
observed the defendant deposit a plastic bag in his trunk, and
our conclusion that the affidavit furnished probable cause that
the defendant was a drug dealer. Id. at 104. Here, by contrast,
the affidavit did not directly connect Stearn to an actual drug
transaction, and did so only through a confidential informant
and circumstantial corroboration.

Burton, of course, calls only for “evidence supporting
[the] preliminary premise[]” that the defendant is a drug dealer,
of which we certainly have some. Id. at 104. Additionally, we
believe Burton’s second and third prongs are easily met. Indeed,
the affidavit indicated that Stearn was 5019 Homestead’s record
owner and connected 5019 Homestead to the drug allegations
via the informant’s tip, the Doebleys’ apparent at-will access
and 5019 Homestead’s peculiar relationship with both 5028

58
Homestead and Michael Doebley’s Jeep. (App. 89.) But wary of
carrying our Burton inference too far, we decline to decide
whether “these facts and the inferences to be drawn from them
reasonably could lead a magistrate judge to conclude that
[Stearn] was involved in the drug trade.” Whitner, 219 F.3d at
298. Because the parties neither briefed nor argued this issue in
detail, we will resolve the propriety of the 5019 Homestead
search under the good faith exception.

Contrary to the District Court’s assertion, the affidavit
was not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable,” either
across the board or with respect to 5019 Homestead.
Zimmerman, 277 F.3d at 436-437. As set forth above, the
affidavit contained evidence on all three prongs of Burton,
although evidence on the “drug dealer” prong was weaker than
that adduced in Whitner, Hodge and Burton. But even if we
determined that the evidence against Stearn was insufficient to
invoke Burton, “the officers could not be expected to know that
the magistrate judge made an erroneous probable cause
determination due to insufficient evidence connecting [Stearn’s]
house to drug dealing.” Hodge, 246 F.3d at 309 (citation and
quotation omitted). “Indeed, the magistrate judge himself could
not know whether this Court would ultimately agree with his
determination given the unsettled jurisprudence governing cases
of this type.” Id. Accordingly, we conclude that the search of
5019 Homestead “presented a close call. Once the magistrate

59
judge made that call, it was objectively reasonable for the
officers to rely on it.” Id.

Our decision to uphold the search of 5019 Homestead
compels us to reject the District Court’s conclusion that the
warrant for the collection of Stearn’s saliva is fruit of the
poisonous tree. See Smith, 522 F.3d at 306 n.2 (“In light of the
result that we reach here that the seizure and search were lawful,
there was no ‘poisonous tree.’”). Because he challenged only the
search of 5019 Homestead, it is irrelevant for Stearn whether the
warrant for saliva was obtained as a consequence of an illegal
entry into another location. See Rakas, 439 U.S. at 134 (“[I]t is
proper to permit only defendants whose Fourth Amendment
rights have been violated to benefit from the [exclusionary]
rule’s protections.”); Wong Sun v. United States, 371 U.S. 471,
488 (1963) (predicating exclusion of evidence as “fruit of
poisonous tree” on the existence of a primary constitutional
violation). Because Stearn made no alternative probable cause
argument in his motion to suppress, we will reverse the District
Court’s suppression of Stearn’s saliva sample. (See App. 107-
108.)
3. 5038 Homestead Street

Likewise, we will uphold the search of 5038 Homestead
under the Leon good faith exception. Considering the affidavit,
the most plausible theory linking 5038 Homestead with drug

60
activity is that it was owned or otherwise possessed by Joseph
Doebley. See Burton, 288 F.3d at 104. As with the previous
searches, the affidavit contains some evidence on each of
Burton’s three preliminary premises. See id. The first prong is
easily satisfied; independent police surveillance confirmed that
Joseph Doebley was a drug dealer.

Although we do not necessarily deem it sufficient for
probable cause purposes, the affidavit contained some evidence
as to Burton’s second prong. Indeed, the informant alleged that
Joseph Doebley lived on Higbee Street, police investigations
suggested he resided at 4049 Higbee, and 4049 Higbee was the
co-owner address of 5038 Homestead (and received its water
bill). In this regard, we believe the magistrate (or executing
officers) may also have inferred Joseph Doebley’s ownership
interest from the broader network of ownership and title
irregularities, described above, of which 5038 Homestead was
part. In addition, Joseph Doebley’s autonomous ingress and
egress into 5038 Homestead, detailed by the affidavit, suggested
that he had some degree of dominion over the property.23

23
The affidavit recites: “Doebley was observed on State
rd and followed onto 5000 Homestead St and observed entering
5038 Homestead St . . . at 9:15pm. At approx. 11:30pm Doebley
was observed leaving 5000 Homestead St operating the
blue/white pick up truck . . . .” (App. 88.) Because the affidavit
generally reported the instances in which the defendants were

61
 Finally, although not necessarily sufficient for probable
cause, the affidavit also demonstrated a nexus between 5038
Homestead and Joseph Doebley’s drug activities. According to
the affidavit, Joseph Doebley spent two hours at 5038
Homestead within four hours of apparently receiving the
proceeds of a drug sale from an unidentified white male. (App.
88.) A magistrate reasonably may have inferred that he entered
5038 Homestead in possession of drugs or drug proceeds, which
he may have stashed during the two hours he remained inside
the dwelling. Additionally, 5038 Homestead is located on the
same block as Edward Stearn’s home. According to the
informant, whose tip was extensively corroborated by
independent police investigation, Edward Stearn is Joseph
Doebley’s supplier. We have held that geographic proximity can
contribute to a nexus between the crime and the location to be
searched. Hodge, 246 F.3d at 307 (“Hodge’s home was in the
same city where he was to make the anticipated drug delivery,
rendering his home a more likely repository of his drug-related
paraphernalia.”) (citation omitted); cf. Jones, 994 F.2d at 1057
(“[A]ll three defendants’ homes were on St. Croix and thus were
relatively near the site of the crime, making all of their homes a
likely repository for evidence.”).

If we were reviewing the facts in the first instance, we are

accompanied by third parties, Joseph Doebley likely entered
5038 Homestead alone.

62
unprepared to say that this evidence would satisfy the Burton
three-prong test. Nevertheless, we simply cannot say that the
officers were unreasonable in relying on the magistrate’s
probable cause determination. Critically, the affidavit adduces
some evidence for each Burton prong and, of crucial
importance, the issuing magistrate made a finding of probable
cause. On these facts, we cannot conclude that the affidavit was
so egregiously lacking in probable cause that a police officer,
untrained in the law, should have declined to execute the
warrant. See United States v.$92,422.57, 307 F.3d 137, 146 (3d
Cir. 2002). We will reverse the District Court’s suppression of
evidence seized from 5038 Homestead.

4. 5022 Homestead Street

The search of 5022 Homestead also falls within the good
faith exception to the exclusionary rule. Although not
overpowering, the affidavit contained some circumstantial
evidence suggesting that the defendants, and particularly Joseph
Doebley, may have used 5022 Homestead to store drugs and
paraphernalia. At approximately 4:45 p.m. on October 5, 2005,
police officers observed Michael Doebley leave 5019
Homestead for 4808 Comly. Thereafter, both Doebleys departed
4808 Comly, arrived at the 5000 block of Homestead, and
entered 5019 Homestead. Joseph Doebley then left by himself
and entered 5022 Homestead. While Joseph Doebley remained
inside, an unidentified white male entered 5022 Homestead.

63
Both men departed 5022 Homestead in the white male’s
automobile and traveled to 4808 Comly. From there, Doebley
drove back in his own car to the 5000 block, and entered 5019,
5017, 5022 (using keys) and 5028 Homestead (using keys).
After that, he entered 5030Homestead with an unidentified
white female, and then entered 5022 Homestead, remaining
there until 8:15 p.m.

Without deciding the issue of probable cause, we are
confident that the affidavit contained sufficient indicia of
probable cause to satisfy the good faith exception to the
exclusionary rule. See Zimmerman, 277 F.3d at 436-438. In all,
the affidavit demonstrates that Joseph Doebley accessed 5022
Homestead three times during a four-hour period during which
the Doebleys entered the Comly gym and five different
properties on Homestead. One property – 5019 Homestead –
was owned by Edward Stearn, who was alleged by the
confidential informant to deal drugs from that residence.
Another was 4048 Comly, which was a confirmed situs of
Joseph Doebley’s drug activities. On the afternoon in question,
both of these properties were accessed multiple times, as was
5022 Homestead.

In addition, the affidavit suggests that Joseph Doebley
exercised some degree of control over 5022 Homestead. His
repeated entries were apparently at-will, he appeared to receive
another individual at the property, and on at least one occasion,

64
he entered with a key. As discussed with respect to 5038
Homestead, this evidence potentially raises the Burton inference
that Doebley used 5022 to store drugs and paraphernalia. See
Burton, 288 F.3d at 104. Without deciding whether these
circumstances meet the three prongs of Burton, we believe a
police officer would be warranted in believing that the
magistrate’s probable cause determination rested on the Burton
inference. Because the warrant to search 5022 Homestead was
supported by much more than a “bare bones” assertion that
evidence would be found there, we will uphold that search under
the good faith exception.

5. 5034 Homestead Street

The District Court suppressed evidence from 5034
Homestead as fruit of the poisonous tree because it was a
product of Ryan’s second affidavit, which detailed the returns
on four searches the Court deemed unconstitutional. See Stearn,
548 F. Supp. 2d at 193. But because we uphold those searches,
the warrant to search 5034 Homestead Street cannot be said to
exploit a primary invasion of any defendant’s Fourth
Amendment rights, and is not fruit of the poisonous tree. See
Smith, 522 F.3d at 306 n.2. Our inquiry, therefore, is whether
Ryan’s second affidavit afforded the issuing bail commissioner
with a substantial basis for finding probable cause, or whether
the good faith exception applies. Without deciding the close
question of probable cause, we will uphold the search of 5034

65
Homestead under the Leon good faith exception.

The second affidavit put before the bail commissioner
compelling evidence that Stearn and the Doebleys were large-
scale drug dealers who maintained a network of stash houses.
The search of 5019 Homestead produced proof of residence for
Edward Stearn, bulk cocaine powder, money, pills, marijuana,
and mail for Michael Doebley. (App. 96.) The search of 5038
Homestead produced eight kilograms of cocaine, fifteen
handguns, and “proof of residence for Michael Doebley.” (App.
96.) The search of 5022 Homestead produced marijuana and
packaging. (App. 96.) The search of 4049 Higbee produced a
firearm, marijuana, packaging paraphernalia and documents for
Joseph Doebley. (App. 96.) The vast quantities of drugs,
firearms, and packing equipment, combined with the documents
for Michael Doebley found at 5019 Homestead and 5038
Homestead, further corroborated the informant’s tip that the
three defendants were part of one drug-dealing enterprise. In
addition, this evidence suggested the defendants were using
houses on Homestead Street to store drugs and paraphernalia. A
plausible inference is that on October 5, when the Doebleys
accessed and entered a number of Homestead properties, they
were actually moving through properties they used as stash
houses.

Although evidence linking 5034 Homestead with the
defendants’ drug activity is not overwhelming, it is more than

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colorable. Officers did not see any defendant enter 5034
Homestead until just before the first set of warrants was
executed on October 6 when Michael Doebley and Edward
Stearn apparently fled from Homestead Street. (App. 96.) After
a federal raid on a nearby establishment, Michael Doebley left
5019 Homestead (with Stearn) and went to 5022 Homestead,
and then to 5038 Homestead. (Id.) Afterward, he entered 5034
Homestead and returned to 5022 Homestead, and then both he
and Stearn departed from Homestead Street after loading bags
into their respective vehicles. (Id.) Although grudgingly, even
the District Court conceded that a magistrate might have
inferred “flight by the suspects from Homestead Street.” Stearn,
548 F. Supp. 2d at 191. With that inference in mind, we believe
Michael Doebley’s pre-flight stop at 5034 Homestead, together
with the incriminating fruits of the other Homestead Street
searches, support the inference that 5034 Homestead would also
contain drugs and paraphernalia.

That inference is even more plausible given the
affidavit’s later suggestion that Michael Doebley had a
possessory interest in 5034 Homestead. According to the
affidavit, as officers were preparing to secure 5034 Homestead
pending application for a warrant, one Sophia Beltz identified
herself as the owner of the property. (App. 96.) When asked for
keys, she said that she wouldn’t know who had keys, and that

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the only person who is in the property is Michael Doebley.24
Because the affidavit earlier indicated that Michael Doebley was
detained after departing Homestead Street, a magistrate may
have reasonably construed Beltz’s statement to suggest Michael
Doebley was the possessor of 5034 Homestead. This of course
would strengthen the inference that he stored drugs there. See
Burton, 288 F.3d at 104.

Without deciding whether this nexus is sufficient for
probable cause, we easily uphold this search under the Leon
good faith exception. On these facts it is plain that the warrant
was not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.”
Zimmerman, 277 F.3d at 436-437; see Leon, 468 U.S. at 923.
We will uphold this search under the good faith exception to the
exclusionary rule.

Conclusion

Because the searches of 5019 Homestead, 5022

24
The affidavit recites: “5034 Homestead was about to be
secured by P/O Nicoletti #4620 when a W/F who ID herself as
Sophia Beltz said she was the owner. Beltz was asked for keys
ands [sic] stated she wouldn’t know who had keys but the only
person who is in the property is Michael Doebley.” (App. 96.)

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Homestead, 5034 Homestead, 5038 Homestead and 4049
Higbee did not violate the Fourth Amendment, evidence seized
from those searches shall not be suppressed as to any defendant.
Except for 5020 Homestead, from which no evidence was
seized, we will reverse the District Court’s suppression order in
its entirety, all in accordance with the foregoing.

:

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