United States v. Thomas

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0133p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-5239
v.
,
>
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Defendant-Appellant. -
JAMES THOMAS,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 06-00148-001—Robert L. Echols, District Judge.
Argued: December 4, 2009
Decided and Filed: May 13, 2010
Before: KENNEDY, MOORE, and WHITE, Circuit Judges.

_________________

COUNSEL
ARGUED: Mark C. Scruggs, Sr., JOHNSON, SCRUGGS & BARFIELD, Nashville,
Tennessee, for Appellant. Blanche B. Cook, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee. ON BRIEF: Mark C. Scruggs, Sr., JOHNSON,
SCRUGGS & BARFIELD, Nashville, Tennessee, for Appellant. Blanche B. Cook,
ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
KENNEDY, J., delivered the opinion of the court, in which WHITE, J., joined.
MOORE, J. (pp. 18-24), delivered a separate opinion dissenting in part and concurring in
part.
_________________

OPINION
_________________

KENNEDY, Circuit Judge. Defendant-Appellant James Thomas pleaded guilty
under a conditional plea agreement to one count of manufacturing 100 or more marijuana
plants and one count of possession with intent to distribute a detectable amount of marijuana,

1
No. 08-5239 United States v. Thomas Page 2

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Thomas now exercises a right he
reserved under the plea agreement by appealing the district court’s denial of his motion to
suppress the evidence that law enforcement agents seized from his trailer home during
execution of a search warrant. Thomas also appeals his sentence, claiming that he was not
given certain sentence reductions to which he is allegedly entitled. Because there was
probable cause to support the issuance of the search warrant in this case, we AFFIRM the
district court’s order denying Thomas’ motion to suppress. Additionally, we DISMISS
Thomas’ sentence appeal to the extent that he knowingly and voluntarily waived his right
to appeal it through his plea agreement.

FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2005, Tennessee Bureau of Investigation Special Agent Dennis
Mabry presented an application for a warrant to search the premises of 3971 Taz Hyde Road
in Nashville, Tennessee to a judge of the Metropolitan Davidson County, Tennessee Court.
In his affidavit in support of the warrant, Mabry recited information that was provided to him
by Drug Enforcement Administration Special Agent John Hardcastle, a twenty-year veteran
of the DEA who had been involved in an investigation of Thomas. The relevant portions of
1
the affidavit contained the following information:

1. SA John Hardcastle with the Drug Enforcement Administration
(DEA) recently met with a Confidential Informant (CI) who works for
DEA. This CI provided information regarding [sic] illegal indoor
marijuana grow operation located at 3971 Taz Hyde Road, Nashville,
TN. This CI has worked with SA Hardcastle, and has given him reliable
information within the past year. Information provided by this CI has led
to the successful arrests and prosecution of three subjects who were
arrested. Two were charged and convicted in Federal Court.
2. The CI has informed SA Hardcastle that James I. THOMAS has had
a reputation within the marijuana community of Nashville for the past
two to three years as being a successful producer of just not [sic] leaf
marijuana, but the more sought after “bud” of the plant, which is more
expensive and produces a greater high for the user. Typically one ounce
of the “hydroponically” produced bud will sell as for a high [sic] as
$250.00 per ounce.

1
Although the actual information was provided by Hardcastle, Mabry was the affiant.
No. 08-5239 United States v. Thomas Page 3

3. The CI informed SA Hardcastle where James I. THOMAS lived. SA
Hardcastle was able to confirm by [sic] THOMAS’S driver’s license has
the address of 3971 Taz Hyde Road. SA Hardcastle discovered that
THOMAS has an active gun permit with the address listed as 3971 Taz
Hyde Road. On 10-18-2005 at approximately 10:15 am, SA Hardcastle
drove by the residence of 3971 Taz Hyde Road and observed THOMAS
standing in the driveway smoking a cigarette.
4. According to the reliable CI, he/she has been to the residence on at
least three occasions and observed THOMAS conduct narcotic
transactions. The CI has observed THOMAS exit the residence with
marijuana and sell the marijuana to customers on at least three
occasions.[2]
5. According to Nashville Electric Service, the subscriber to this
residence is Sandra G. Brumit the girlfriend of James I. THOMAS.[3]
According to Metro Nashville Property records, Brumit is the owner of
the property. The house has a finished area of 1059 square footage. SA
Hardcastle pulled electricity records for that address from March 2005
through September 2005. The research conducted by SA Hardcastle
revealed usage which SA Hardcastle and I believe to be high usage. The
following information was provided by Nashville Electric Service (NES)
to the [sic] SA Hardcastle for the electrical usage at 3971 Taz Hyde
Road:
March 2005 - $345.24
April 2005 - $371.22
May 2005 - $337.51
June 2005 - $436.28
July 2005 - $513.90
August 2005 - $499.63
Sept. 2005 - $530.46

6. The following information was provided by the Nashville Electric
Service (NES) to SA Hardcastle for the electric usage for the neighbor
of THOMAS located at address of 3986 Taz Hyde Road. The square
footage of the residence according to the Davidson County is 1568
square footage of finished area.
May 2005 - $125.00
June 2005 - $181.64
July 2005 - $202.78

2
The affidavit does not mention (here or anywhere else) that this information pertaining to
Thomas was more than eight months old.
3
The agents would later discover that Brumit was in fact Thomas’ mother, not his girlfriend.
No. 08-5239 United States v. Thomas Page 4

Aug 2005 - $221.89
Sept 2005 - $233.21

7. According to the NES records, THOMAS’S residence regularly uses
more electricity than the neighbor. THOMAS pays twice as much a
month on a regular basis which you [sic] affiant knows is something that
is very common with indoor marijuana grow operations.
8. Indoor marijuana cultivation operations typically use large volumes
of electricity to operate the advanced lighting systems used in such
operations. An indoor grow operation can generate marijuana year round
if the growing operation is managed properly. An indoor grower of
marijuana will use a technique that is referred to as an “up cycle” to
increase the lighting given to the marijuana simulate [sic] the coming of
fall to make the marijuana plants to [sic] produce more “buds” on the
plants.
9. NES disclosed to the Affiant that the January 2005 bill was for
$745.00. Given the recorded square footage of the 3971 Taz Hyde Road
location and the utility usage, it strongly appears that James I. THOMAS
is “cycling up” on his utility usage which indicates that THOMAS is
running a marijuana cultivation operation on the 3971 Taz Hyde Road
location.
10. Davidson County property records reveal that there are at least two
“out buildings” located on the property out of sight from the front of the
property. Property records do not indicate that there are any other
structures on the property that would legitimately use such a high volume
of electricity such as a heated pool or air conditioned buildings other that
[sic] the residence.[4]

Based on this information, the judge issued a search warrant, which was executed
on October 26, 2005. When the officers arrived at the Taz Hyde property, they
discovered that Thomas, as well as his girlfriend and their two children, lived in a
freestanding trailer home behind the main building of the property. Agents searched the
trailer and seized the following: 128 living marijuana plants growing in soil; five pounds
of processed marijuana; indoor marijuana grow equipment; five handguns and a sawed-
off shotgun; $5,600 in cash; and six motorcycles. Thomas was arrested and later
charged in the Middle District of Tennessee with one count of manufacturing 100 or

4
Agent Hardcastle would later testify in the suppression hearing that, during his investigation,
when he drove up to the Taz Hyde property, he could not see any buildings other than the house that might
use a substantial amount of electricity.
No. 08-5239 United States v. Thomas Page 5

more marijuana plants and one count of possession with intent to distribute a detectable
amount of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Thomas filed a motion to suppress the seized evidence on the ground that the
search warrant was not supported by probable cause. The district court held a
suppression hearing on April 25, 2007. At the hearing, Agent Hardcastle testified and
essentially reiterated all of the information found in the warrant affidavit. He denied
making any intentional or reckless misrepresentations in the affidavit. Hardcastle did
admit that the marijuana sales referred to by the confidential informant had taken place
eight months before, but he testified that he considered the information reliable because
the confidential informant maintained his connections with the marijuana community
and the information “was still being renewed” by the informant. For the defense,
Thomas’ mother, Sandra Brumit, testified that the Taz Hyde property contained a main
dwelling, a garage, and Thomas’ trailer, all of which were heated and cooled with
electricity. Brumit also claimed that the property had a pool that used an electrical pump
“24-7” during the summer. Brumit also said that she had no knowledge her son was
growing marijuana and that she had never been inside his trailer. Finally, the defense
proffered a licensed electrical engineer who testified that no conclusions could be made
about the electrical bills without detailed studies on the electrical utilities being used at
the Taz Hyde property (and at the comparative neighboring property).

On May 30, 2007, the district court issued an opinion and order denying Thomas’
motion to suppress. In so ruling, the district court found Agent Hardcastle’s testimony
credible and Sandra Brumit’s testimony not credible. The court found that Thomas failed
to make a preliminary showing that any of the agents knowingly, intentionally, or
recklessly made any false statements necessary to the finding of probable cause.
Accordingly, the court refused to grant Thomas a probable cause hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). The court then found that, based on the
information in the affidavit, there was probable cause to justify the search warrant. First,
it found the confidential informant’s tip to be reliable. Second, it ruled that the tip was
not stale because the relevant crime was a marijuana growing operation, which is
No. 08-5239 United States v. Thomas Page 6

entrenched activity and thus less subject to time constraints. Third, the court noted that
the electrical records corroborated the informant’s tip, thereby refreshing it even if it
were stale. Finally, the court held that even if the search warrant affidavit were
deficient, the good faith exception, pursuant to United States v. Leon, 468 U.S. 897
(1984), was applicable in this case and prevented the evidence from being excluded at
trial.

On June 12, 2007, Thomas pleaded guilty to both counts on which he was
indicted as part of an agreement he made with the government. In exchange for this
plea, the government agreed not to appeal the sentence Thomas would receive, and it
also agreed to recommend a three-level sentence reduction for acceptance of
responsibility. Thomas, in addition to his plea, also agreed to waive his right to appeal
any ruling (including a within-guidelines sentence) except for the suppression denial.
These conditions were clearly delineated in the written plea agreement which Thomas
signed, and he also recognized the terms of the agreement after being questioned by the
judge during the plea hearing. The district court eventually sentenced Thomas to five
years in prison, the statutory minimum. This appeal followed.

DISCUSSION

I. Probable Cause Determination

A. Standard of Review

We review the district court’s probable cause determination at a suppression
hearing under two “complementary” standards. See, e.g., United States v. Helton, 314
F.3d 812, 820 (6th Cir. 2003) (quoting United States v. Leake, 998 F.2d 1359, 1362 (6th
Cir. 1993)). Any and all factual findings are reviewed for clear error, while all
conclusions of law are reviewed de novo. Id. (quoting United States v. Smith, 182 F.3d
473, 476 (6th Cir. 1999), and Leake, 998 F.2d at 1362). Furthermore, the findings of the
state court judge who issued the search warrant are entitled to “great deference” and will
be overturned only if this Court finds them to be arbitrary. Id. (quoting United States v.
Greene, 230 F.3d 471, 478 (6th Cir. 2001)). We must be cautious not to partake in
No. 08-5239 United States v. Thomas Page 7

“after-the-fact scrutiny . . . [that] takes the form of de novo review.” Illinois v. Gates,
462 U.S. 213, 236 (1983).

B. Probable Cause Analysis

Although Thomas cites Franks v. Delaware, 438 U.S. 154 (1978), multiple times
in his brief, he does not specifically appeal the district court’s refusal to grant a Franks
hearing as to the validity of the search warrant. Instead, Thomas only argues that Agent
Mabry’s warrant affidavit was insufficient to support the state court judge’s (and later,
the district court’s) finding that there was probable cause to search the Taz Hyde
property.

The Fourth Amendment mandates that a search warrant may only be issued upon
a showing of probable cause. U.S. Const. amend. IV (“[N]o Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”). Probable cause exists
“when there is a ‘fair probability’ . . . that contraband or evidence of a crime will be
found in a particular place.” Helton, 314 F.3d at 859 (quoting United States v. Davidson,
936 F.2d 856, 859 (6th Cir. 1991)). In other words, a magistrate need only find
“reasonable grounds for belief” that evidence will be found in order to justify the
issuance of a search warrant. United States v. Bennett, 905 F.2d 931, 934 (6th Cir.
1990). When an affidavit is the basis for a probable cause determination, the affidavit
“must provide the magistrate with a substantial basis for determining the existence of
probable cause.” Gates, 462 U.S. at 239. Search warrant affidavits are to be judged on
the totality of the circumstances, not line-by-line scrutiny. Id.; see also United States v.
Woosley, 361 F.3d 924, 926 (6th Cir. 2004).

When an affidavit relies on hearsay information from a confidential informant,
the judicial officer (and reviewing court) must consider the veracity, reliability, and basis
of knowledge for that information as part of the totality-of-the-circumstances review.
Helton, 314 F.3d at 819 (citing Gates, 462 U.S. at 238). This is a “practical, common-
sense decision.” Gates, 462 U.S. at 238. “[W]hile an affidavit must state facts
supporting an independent judicial determination that the informant is reliable, those
No. 08-5239 United States v. Thomas Page 8

facts need not take any particular form.” United States v. McCraven, 401 F.3d 693, 697
(6th Cir. 2005). In fact, independent corroboration of the tip by police is not required
when the court is provided with assurances that the informant is reliable. United States
v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc). “[I]f the prior track record of an
informant adequately substantiates his credibility, other indicia of reliability are not
necessarily required.” Helton, 314 F.3d at 820 (quoting Smith, 182 F.3d at 483); see also
Allen, 211 F.3d at 976 (affirming probable cause determination based on an informant’s
uncorroborated tip because informant had reliably worked with the officer in the past).
In such cases, the affiant need only attest “with some detail” that the informant provided
reliable information in the past. See McCraven, 401 F.3d at 697. Otherwise, he or she
should indicate that the police corroborated significant parts of the informant’s story.
See id. In sum, “[a]s long as the issuing judge can conclude independently that the
informant is reliable, an affidavit based on the informant’s tip will support a finding of
probable cause.” Id.

The instant case presents us with an affidavit offering a relatively thin
justification for probable cause. Nevertheless, we find that the affidavit contains enough
of the aforementioned elements that can be used to support a finding of probable cause.
First, the affidavit contains specific information from a confidential informant indicating
that evidence of a crime would be found at the Taz Hyde property. The affidavit alleges
that the informant provided both a tip that there was a marijuana grow operation at
Thomas’ residence, and also (despite our dissenting colleague’s claim to the contrary5)
a specific tip that Thomas had a reputation in the Nashville community for over two
years as being a successful producer “of just not [sic] leaf marijuana, but the more
sought after ‘bud’ of the plant.” Second, the affidavit provides “with some detail” the
informant’s positive prior record of giving accurate information to the police. See id.
The affidavit specifically states that the informant had provided police with reliable
information in the past year, and that his information had led to the arrest and

5
Our dissenting colleague states that the tip is “vague” and “bald.” While we note that the tip is
not perfect, it is far from bald. In fact, it provides several specific details, as we note here.
No. 08-5239 United States v. Thomas Page 9

prosecution of three subjects, two of whom were charged and convicted in federal court.6
Third, the affidavit indicates that the police corroborated significant parts of the
informant’s story. For example, the affidavit explains that the police were able to
confirm through a driver’s license search that Thomas in fact lived at the location
provided by the informant. More importantly, the affidavit includes the recent electricity
usage records of the Taz Hyde property, which indicated that the property was using
much more electricity than a comparably sized property in the same area.7 In dissent,
our colleague separates each of these elements from the others and notes their
deficiencies individually. Admittedly, each element of the affidavit, when viewed in a
vacuum, is less persuasive or even insufficient by itself to support probable cause here.
But when the evidence is viewed together and in totality, as required, Gates, 462 U.S.
at 233, the information contained in the affidavit provided a reasonable basis for
believing that evidence of marijuana possession and manufacture would be found at the
Taz Hyde property.

In an attempt to undercut this conclusion, Thomas raises two principal
arguments. First, he refers to four parts of the affidavit that he claims are either wrong
or contain material omissions. Thomas alleges that paragraph 1 of the affidavit fails to
state with sufficient specificity the types of information the informant had provided in
the past, the informant’s experience with drugs, or the basis of the informant’s
relationship with police. Thomas then claims that paragraph 2 fails to sufficiently
explain why Thomas apparently had a reputation in the Nashville community for

6
The dissent fails to recognize this important detail. As noted above, when an affidavit indicates
the reliability of the informant, the tip on its own can be sufficient to support probable cause. E.g., Allen,
211 F.3d at 976. In fact, this is what distinguishes the instant case from United States v. Hammond, 351
F.3d 765 (6th Cir. 2003), the case on which our colleague relies with respect to this issue. In Hammond,
the officer seeking a warrant failed to provide “any detail” as to the informant’s reliability. Id. at 772.
Here, there was ample evidence of the informant’s reliability. In addition, Hammond is inapplicable
because the informant’s tip in the instant case is not the only piece of evidence in the affidavit to support
the judge’s probable cause finding and warrant issuance.
7
The dissent cites United States v. Zimmer, 14 F.3d 286, 287-89 (6th Cir. 2004), and United
States v. Thomas, Nos. 92-6207, 92-6208, 1993 WL 337553, at *5 (6th Cir. Aug. 31, 1993), in support of
the assertion that “electrical-usage records . . . cannot form the sole basis of probable cause.” Dissenting
Op. at 2. We question the relevance of that assertion, given that there is more than the mere electrical
records in the instant case to support the probable cause finding. Nevertheless, we feel it worth noting that
Zimmer and Thomas are merely examples of this Court affirming probable cause findings that relied in part
on electrical-usage records.
No. 08-5239 United States v. Thomas Page 10

marijuana. Thomas next alleges that paragraph 3 does not explain whether the
informant’s description of Thomas’ residence was correct. Finally, Thomas claims that
the affidavit contains no information establishing that there might still be marijuana on
the Taz Hyde premises at the time the affidavit was submitted. Based on these
allegations, Thomas argues that the affidavit fails to establish probable cause.8

The problem with Thomas’ arguments here, like that of the dissent, is that they
focus on what the affidavit lacks. “The affidavit is judged on the adequacy of what it
does contain, not on what it lacks, or on what a critic might say should have been
added.” Allen, 211 F.3d at 975. Thomas’ argument, like that of the dissent, relies on
line-by-line scrutiny, not a totality review of the affidavit. See Gates, 462 U.S. at 238.
When scrutinizing each line of an affidavit, one could always find some question left
unanswered or some issue unresolved. When properly looking at the affidavit in this
case under the totality of the circumstances, the information that the affidavit does
contain provides enough to support a finding of probable cause.

Thomas’ second argument challenging the affidavit is that the confidential
informant’s tip was stale because it was over eight months old. “A determination of
whether an informant’s tip is stale rests on several factors including ‘the character of the
crime (chance encounter in the night or regenerating conspiracy?), the criminal (nomadic
or entrenched?), the thing to be seized (perishable and easily transferable or of enduring
utility to its holder?), the place to be searched (mere criminal forum of convenience or
secure operational base?).” Hammond, 351 F.3d at 771 (quoting United States v.
Greene, 250 F.3d 471, 480-81 (6th Cir. 2001)). The question of staleness, then, depends

8
At this point in his brief, Thomas also asserts that Agent Harcastle’s information was “included
in reckless disregard for the truth. Pursuant to Franks v. Delaware, these allegations should be excised.”
Under Franks and its progeny, the district court is required to hold a hearing as to the sufficiency of the
affidavit if the defendant can make a substantial preliminary showing that a false statement necessary to
the finding of probable cause was made knowingly and intentionally or with reckless disregard for the truth
and was included in the affidavit. Franks, 438 U.S. at 155-56. Thomas, although citing to Franks, never
asks this Court to review the decision of the district court denying a Franks hearing. Rather, he only asks
that certain statements in the affidavit be excised. We agree with the district court that Thomas has failed
to show that the affiant in this case knowingly and intentionally inserted a false statement into the affidavit.
The only allegation that comes close to this standard revolves around the affiant’s failure to include the
fact that the marijuana-sale information was eight months old. However, the standard for omissions is
more difficult to meet than for false affirmative statements, see, e.g., United States v. Fowler, 535 F.3d
408, 415-16 (6th Cir. 2008), and is a standard which has not been satisfied here.
No. 08-5239 United States v. Thomas Page 11

on the “inherent nature of the crime.” United States v. Henson, 848 F.2d 1374, 1382 (6th
Cir. 1988) (quoting United States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir.
1983)). A marijuana growing operation, which is a long-term operation, may allow for
greater lapses of time between the information relied upon and the request for a search
warrant. See United States v. Greany, 929 F.2d 523, 525 (6th Cir. 1991); Thomas, 1993
WL 337553, at *3. Furthermore, information from an informant that is otherwise stale
may be “refreshed” if the affidavit contains “recent information [that] corroborates
otherwise stale information.” United States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998).

Here, the NES utility usage records sufficiently refreshed the informant’s tip.9
See Zimmer, 14 F.3d at 287-89 (relying in part on electrical records to corroborate a
probable cause finding); Thomas, 1993 WL 337553, at *5 (same). The affidavit
contained the Taz Hyde property electrical bills for the six months leading up to the
submission of the warrant application. The affidavit also provided the comparable
monthly bills for a neighboring property, and the bills of the neighboring property were
on average less than half as high. Furthermore, the numbers indicated that energy usage
at the Thomas property was generally increasing over time, which the affidavit indicated
suggested that Thomas was “cycling up” to stimulate the marijuana plants to produce
more buds. Thus, this evidence corroborates the informant’s tip that Thomas was a
marijuana grower (not just a sporadic seller) and thereby refreshed the informant’s
information. See Zimmer, 14 F.3d at 287-89; Thomas, 1993 WL 337553, at *5.

Thomas challenges this refreshing evidence on two main grounds: 1) the affiant
was not an electrical expert, and 2) there was a second residence on the Taz Hyde
property. Thomas’ first argument is simply contrary to existing Sixth Circuit precedent,
which has credited electrical usage records in similar contexts without the testimony or
analysis of an electrical expert. See Zimmer, 14 F.3d at 287-89; Thomas, 1993 WL
337553, at *5. Thomas’ second argument is essentially that nothing can be inferred from

9
The dissent errs in characterizing these records as merely refreshing the tip. Dissenting Op. at
3 (“Even assuming the electrical-usage records refreshed the reputation statement, . . . the reputation
statement here is not sufficient to support probable cause.”) Indeed, the records also serve as corroborating
evidence that a grow operation was ongoing at Thomas’ residence.
No. 08-5239 United States v. Thomas Page 12

the higher energy usage on Defendant’s residence because the bills represented the
energy usage of two residences, not just one. Thomas’ argument, while somewhat
compelling using hindsight, is simply unavailing under the proper standard of review.
We must review the evidence submitted in the warrant application as it was available to
the officers and the judge. See Gates, 462 U.S. at 238. In this case, the officers viewed
the Thomas property to the best of their ability from the road and reported their findings
in the affidavit. In paragraph 10, the affiant indicated that he searched Davidson County
property records and found two “out buildings” on the Taz Hyde property, but no other
buildings that would use a high volume of electricity. Based on this information,10 we
agree with the district court and government that these records both refreshed and
corroborated the informant’s tip. Consequently, we find that, based on the entirety of
the affidavit (including the tip), there was a substantial basis to believe criminal activity
or evidence of a crime would be found at the property.

II. Leon Exception

In its opinion and order denying Thomas’ motion to suppress, the district court
also ruled that the Leon good-faith exception was applicable even if the search warrant
were deficient. In his brief to this Court, Thomas’ counsel recites verbatim the elements
of the Leon doctrine but fails to explain how they entitle him to any relief. Nor does he
actually argue that the district court’s Leon ruling was error. However, since Thomas
would also need a reversal of this decision in order to gain relief, and because his brief
does refer to the Leon doctrine, we will review this decision as well.

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court established
that the Fourth Amendment exclusionary rule does not apply in cases where law
enforcement officers acted in good faith and reasonably relied on a search warrant that
is ultimately found invalid. The inquiry on review is “whether a reasonably trained
police officer would have known that the search was illegal despite the [issuing judge’s]
authorization.” Id. at 922 n.23. To help reviewing courts properly answer this question,

10
It would be a different case if the officers had known about the second building but failed to
reveal its existence to the judge issuing the search warrant. But that case is not before us.
No. 08-5239 United States v. Thomas Page 13

the Court identified four specific situations in which an officer’s reliance on a
subsequently invalidated warrant cannot be considered objectively reasonable: 1) when
the warrant is issued on the basis of an affidavit that the affiant knows (or is reckless in
not knowing) contains false information; 2) when the issuing magistrate abandons his
neutral and detached role and serves as a rubber stamp for police activities; 3) when the
affidavit is so lacking in indicia of probable cause that a belief in its existence is
objectively unreasonable; and 4) when the warrant is so facially deficient that it cannot
be reasonably presumed to be valid. United States v. Laughton, 409 F.3d 744, 748 (6th
Cir. 2005) (citing Leon, 468 U.S. at 914-23).

In this case, Thomas has failed to satisfy any of these exceptions. Thomas has
not submitted any evidence to suggest that the state court served as a rubber stamp for
police activity. And we have already explained above that Thomas has failed to show
that the officers knowingly inserted false information into the affidavit or even acted in
reckless disregard for the truth. Based on our analysis above regarding the facial validity
of the affidavit and search warrant, we also cannot say that a reasonable officer could not
have presumed the affidavit and warrant to be valid. In an attempt to undercut this
ruling, our dissenting colleague again improperly divides and attacks the evidence
provided in the affidavit instead of viewing the evidence in its totality. We agree with
the district court’s explanation that the officers “presented a neutral judicial officer with
an affidavit stating that he was aware of information indicating the presence of a
marijuana growing operation at a specific location based on the report of a reliable
informant that was corroborated by electric usage records and other details about the
Defendant.” The officer in this case independently investigated and corroborated the
informant’s tip “to the extent possible,” see United States v. King, 227 F.3d 732, 742
(6th Cir. 2000), both in his verification of Thomas’ address and in his obtaining the NES
records. Accordingly, we find the district court did not err in concluding that the officers
acted in good faith in seeking the search warrant, and the exclusionary rule would not
apply here even if the information in the search warrant failed to establish probable
cause.
No. 08-5239 United States v. Thomas Page 14

III. Sentence Appeal

Thomas also appeals his sentence. Specifically, he seems to argue that his
guideline range, beginning with the statutory mandatory minimum, was incorrect
because he was entitled to the “safety valve” in United States Sentencing Guidelines
(“U.S.S.G.”) § 5C1.2, which would have allowed the district court to sentence Thomas
based solely on his calculated guideline range without regard to the statutory mandatory
minimum as the starting point. Thomas’ brief does not address how our review of this
issue is not precluded under his plea agreement’s waiver provision. This Court reviews
de novo the scope and validity of an appeal waiver, interpreting plea agreements strictly
and “‘with ambiguities construed against the government.’” United States v. Jones, 569
F.3d 569, 571-72 (6th Cir. 2009) (quoting United States v. Caruthers, 458 F.3d 459, 470
(6th Cir.), cert. denied, 549 U.S. 1088 (2006)). Under United States v. Jones, Thomas’
appeal waiver requires further consideration before we can declare that it waived his
right to appeal the denial of the “safety valve” in § 5C1.2 based on its impact for his
guideline range.

In Jones, the district court determined the defendant’s applicable guideline range
as 70 to 87 months, but sentenced the defendant to 180 months based on two consecutive
statutory mandatory minimum sentences. Id. at 571-72. Under his plea agreement, the
defendant had waived his “‘right to appeal any sentence which is at or below the
maximum of the guideline range,’” but the defendant appealed solely on the grounds
that the ten-year mandatory-minimum sentence imposed was unconstitutional. Id. at
572-73 (quoting Plea Agreement ¶ 10). This Court held that the ambiguity in whether
a statutory mandatory-minimum sentence that becomes the “guideline sentence” under
U.S.S.G. § 5G1.1(b) “also constitutes the ‘guideline range’ referenced in the plea
agreement” must be construed against the government to be a distinct concept. Id. at
572. Faced with “two reasonable interpretations” of § 5G1.1, we concluded that we
must construe “above the guideline range” strictly against the government, finding

§ 5G1.1(b) contemplates a two-step process: first, the sentencing court
must calculate the applicable guideline range; next, the sentencing court
must determine whether the statutory minimum exceeds the top of the
No. 08-5239 United States v. Thomas Page 15

properly calculated guideline range. If the statutory minimum is greater
than the top of the guideline range, the statutory minimum becomes the
guideline sentence. On this reading of § 5G1.1(b), the guideline range
does not become equivalent to, or merge into, the statutory
minimum/guideline sentence.

Id. We found it particularly telling that other plea agreements avoided this ambiguity
by explicitly including a waiver of both guideline range and mandatory-minimum
guideline sentence appeals. Id. at 572-73. Thus, because the defendant’s guideline
sentence of 180 months exceeded his applicable guideline range of 70 to 87 months that
the district court had calculated prior to considering the statutory mandatory minimums,
we held that the defendant’s appeal waiver did not preclude his challenge to the
mandatory minimum. Id.

Here, Thomas signed a plea agreement and a “Petition to Enter a Plea of Guilty”
on the same day as his plea hearing. Thomas’ plea agreement stated that Count 1
“carries a term of imprisonment of not less than 5 years” and that “For purposes of
determining the U.S.S.G. recommended sentencing range, the United States and
Defendant agree . . . [that 21 U.S.C. §] 841(b)(1)(B)(viii) requires a statutory minimum
term of imprisonment of five years[, and,] [a]ccordingly, absent relief from the statutory
minimum sentence, Defendant’s sentence would be five years, pursuant to U.S.S.G.
§ 5G1.1(b).” (Emphases added.) Although the plea agreement noted that Thomas and
the government disagreed on the applicability of the safety valve under § 5C1.2, the
“Waiver of Appellate Rights” section stated, in relevant part,

It is further agreed that (I) Defendant will not file a direct appeal, nor
litigate under Title 28, United States Code, Section 2255 and/or Section
2241, any sentence within or below the Anticipated Guidelines Range
. . . . This provision is binding on the parties even if the Court employs
a U.S.S.G. analysis different from that stipulated to herein. . . .
Acknowledging [18 U.S.C. § 3742], Defendant knowingly waives the
right to appeal any sentence within the maximum provided in the offense
level as determined by the Court or the manner in which that sentence
was determined on the grounds set forth in 18 U.S.C. § 3742 or on any
ground whatever, in exchange for the concessions made by the United
States in this Plea Agreement. Defendant also knowingly waives the
right to challenge the sentence imposed and the manner in which it was
No. 08-5239 United States v. Thomas Page 16

determined in any collateral attack, including, but not limited to, a
motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241.

(Emphases added.) Thomas’ petition further acknowledged “the statutory penalty for
the offense(s) with which I am charged” and that “I have been advised by my attorney
that the guideline range in my case should be from mandatory 5 years to N/A months”
in a pre-printed, fill-in-the-blank format; Thomas also initialed a handwritten
“mandatory minimum of 5 years on Count 1.” (Emphasis added.) Thomas again
acknowledged this anticipated range and his § 5C1.2 argument at his plea hearing.11
Although Thomas’ Presentence Investigation Report stated that his “range” based solely
on his offense level would have been 18 to 24 months of imprisonment, the district court

11
Specifically, the hearing included this conversation:
THE COURT: . . . .
[The Petition to Enter a Guilty Plea] also says in the middle of the paragraph
that you’ve been advised by your attorney that the guideline range in your case should
be from the mandatory five years to - - and it says not applicable months.
So it appears that your attorney has estimated your guideline range would be
the mandatory five years in that case. I’ll look and see what the Plea Agreement says.
....
MR. SCRUGGS [Defense counsel]: I advised [Thomas] that the mandatory minimum
under the statute is a mandatory minimum of five years. But in the Plea Agreement
we’re going to be asking the Court to consider the safety valve, which would take it
back down to between 27 and 33 months.
THE COURT: Okay. Let’s see.
There’s a discussion of the calculation of the guidelines in the Plea Agreement,
beginning at the top of Page 8. . . .
....
Mr. Thomas, it looks like your lawyer and the Government’s lawyer are saying
with regard to Count 1 then, that there is a statutory minimum sentence of five years
unless you’re granted some relief under the safety valve, which Mr. Scruggs says you’re
entitled to.
This says that the Government contends that you will not be eligible for this
relief that’s available to you under that safety valve statute, which allows the Court in
that event to sentence less than five years.
....
So that’s the situation with regard to Count 1. That’s what is being
recommended to me and estimated to you by your lawyer.
....
They do recommend some guidance to the Court about the governing statute,
as well as what the guideline calculation should be, but there’s no certain guideline
range in your case at this point.
Do you have any questions about any of that?
THE DEFENDANT: No, sir.
. . . . [Continued plea colloquy; begins discussion of scope of appeal waiver]
MR. SCRUGGS: Your Honor, my understanding is that if for some reason the Court
departs upward, though, outside the guideline range, we could appeal that.
THE COURT: Okay. I think that’s right. I didn’t read it carefully.
What you’re saying is so long as the Court imposes a sentence within the
anticipated guideline range. And the Government also waives its right to appeal the
sentence unless the Court goes below the guideline range.
(Emphases added.)
No. 08-5239 United States v. Thomas Page 17

determined that Thomas’ “ADVISORY GUIDELINE RANGE (BEFORE
DEPARTURES)” was a flat “60 months” and that he was not eligible for the § 5C1.2
safety valve.

Therefore, because Thomas’ plea agreement and petition explicitly tied the
calculation of his guideline range to the statutory mandatory-minimum sentence and he
clearly waived the right to appeal the district court’s calculation of his guideline range
and sentence, the reasoning in Jones does not apply. Jones, 569 F.3d at 571-73; see also
Caruthers, 458 F.3d at 471 (“Moreover, the district court’s decision to apply the
mandatory minimum of the ACCA is literally an aspect of ‘the manner in which that
sentence was determined.’”); United States v. Calderon, 388 F.3d 197, 200 (6th Cir.
2004) (holding that if an otherwise valid waiver of appellate rights in a plea agreement
does not reserve the right to appeal a denial of an adjustment in the offense level, even
if it reserves the right to seek an adjustment in the offense level at sentencing, then the
right to appeal the denial or the calculation is waived). Thomas is thus foreclosed from
challenging the district court’s decision that U.S.S.G. § 5C1.2 did not apply to alter the
calculation of his guideline range based on the statutory mandatory minimum.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Thomas’
motion to suppress, and we DISMISS Thomas’ sentence appeal.
No. 08-5239 United States v. Thomas Page 18

_______________________________________________________

DISSENTING IN PART AND CONCURRING IN PART
_______________________________________________________

KAREN NELSON MOORE, Circuit Judge, dissenting in part and concurring in
part. I dissent from Parts I and II of the majority opinion because I believe that the
affidavit is not sufficient to support a finding of probable cause and that the Leon good-
faith exception does not apply. I concur in Part III.

I. THE AFFIDAVIT IS INSUFFICIENT TO SUPPORT
A FINDING OF PROBABLE CAUSE

I disagree that the “relatively thin justification for probable cause” in the affidavit
“contains enough” to support a finding of probable cause, Majority Op. at 8, because I
believe that the affidavit does not contain a “totality” of facts to provide a reasonable
basis for the belief that evidence of a marijuana grow operation, or any continuing
marijuana sales, would be found at the Taz Hyde property. Even assuming that the
affidavit contains enough information to support the confidential informant’s veracity
and reliability for providing drug-related information—a point on which the majority
and I disagree—the majority opinion dodges the difficult question of how the issuing
magistrate could independently determine that the confidential informant is tied to the
marijuana community to be able to make a reliable statement regarding Thomas’s
reputation or that the information the confidential informant provided constituted
specific evidence of a grow operation rather than just vague, isolated sales.

Although significant corroboration could bolster the confidential informant’s tip,
I cannot agree that “the police corroborated significant parts of the informant’s story,”
Majority Op. at 8, especially given the rather simple nature of the tip—the direct
observation of three discrete sales outside the home, without more (including timing,
frequency, quantity, or type), and the bald assertion that Thomas had a reputation as a
grower. The affidavit gives no indication of how the confidential informant came to
know of Thomas as a grower rather than just a seller—Agent Hardcastle’s knowledge
of the confidential informant’s connections in the Nashville marijuana community was
No. 08-5239 United States v. Thomas Page 19

not provided in the affidavit.1 Aside from the vague electrical-usage records, the
majority opinion relies on very weak corroboration—the mere fact that Thomas lived at
the address the informant provided does not indicate that any sales had occurred there
or that any other activities had happened there that bolstered the tip. See United States
v. Higgins, 557 F.3d 381, 390 (6th Cir.) (“[N]or did the police corroborate any of the
informant’s statements beyond the innocent fact that Higgins lived at the stated location
and the irrelevant (to the determination of whether Higgins’s house contained evidence
of a present-day crime) fact that Higgins had a criminal record.”), cert. denied, 130 S.
Ct. 817 (2009). Thus, the only remaining piece of corroboration for the tip is the
electrical-usage records, which this court has held cannot form the sole basis of probable
cause. See United States v. Zimmer, 14 F.3d 286, 287-89 (6th Cir. 1994) (holding that
“the thermal imager, the electric bills, the unrelated officer’s visit [to the house at which
time he smelled marijuana], etc. were enough to establish probable cause” even without
the questionable confidential informant’s statements); United States v. Thomas, Nos. 92-
6207, 92-6208, 1993 WL 337553, at *5 (6th Cir. Aug. 31, 1993) (unpublished opinion)
(looking to the “unusual” pattern of high and steady electrical usage with little seasonal
variation, the highly specific and largely corroborated informant tips that a grow
operation was present, and “evidence of activity consistent with a marijuana growing
operation, including the purchase of the growing supplies and the ventilator rotating in
calm air”), cert. denied, 511 U.S. 1004 (1994). The confidential informant’s simple tip
here combined with only the electrical-usage records does not compare with what this
court has previously required, and I disagree with the majority’s assertion that reliance

1
Although I join the majority opinion’s statement of the facts, I think that the majority provides
a misleading summary of Agent Hardcastle’s suppression hearing testimony. Agent Hardcastle’s
testimony does indicate that he believed that “the confidential informant maintained his connections with
the marijuana community,” Majority Op. at 5, but the confidential informant had been arrested eight
months prior to the time that this affidavit was written, and Agent Hardcastle further testified that “when
the C[I] was arrested, apparently the word got out and he was extricated from the marijuana cultivation
community,” R.31 at 44. Agent Hardcastle testified that the confidential informant was “fully steeped”
in the marijuana community “at the time” the informant observed the sales eight months prior to the
affidavit’s date, but that the information related to a grow operation “was [the informant’s] opinion and
he had learned [that] from a second party on the property.” Id. at 45. Agent Hardcastle testified that he
believed the information was still reliable because the informant “was still friends with these other
marijuana producers. They wouldn’t deal with him as far as the capacity of selling, dealing, trading, but
he would still talk to them. . . . I had him seek out these people and find out about Mr. Thomas.” Id. at
46.
No. 08-5239 United States v. Thomas Page 20

on the electrical-usage records as the “[m]ore important[]” piece of corroboration,
Majority Op. at 9, compensates for what is otherwise weak evidence tying a marijuana
grow operation to Thomas’s residence.

Indeed, without more to tie Thomas’s residence to a marijuana grow operation,
the staleness analysis is flawed—although the majority opinion notes that evidence of
a grow operation is not subject to becoming stale based on the nature of the crime,
Majority Op. at 10–11, it does not wrestle with the problem that the confidential
informant did not actually provide information about a grow other than the reputation
statement. The staleness analysis is based entirely on the electrical-usage records, but
the sole information that the electrical-usage records could “refresh” would be the
reputation statement, which was the singular statement that could actually tie Thomas
to a growing operation rather than merely a sale. Of the two electrical-usage cases on
which the majority opinion relies for its staleness analysis, neither Zimmer nor Thomas
rely on electrical usage to refresh otherwise stale information rather than merely to
corroborate. Even assuming the electrical-usage records refreshed the reputation
statement, under the staleness cases on which the majority opinion relies the reputation
statement here is not sufficient to support probable cause. See United States v. Greany,
929 F.2d 523, 525 (9th Cir. 1991) (“When the evidence sought is of an ongoing criminal
business of a necessarily long-term nature, such as marijuana growing, rather than that
of a completed act, greater lapses of time are permitted if the evidence in the affidavit
shows the probable existence of the activity at an earlier time.” (emphasis added)). In
Greany, a named informant provided information, included in the affidavit, that he
personally had been involved in setting up a grow operation at the defendant’s home one
and one-half to two years earlier, and the informant had just been found to have grow
equipment in his own home that had not been used for three years. Id. at 524-25. In
Thomas, an unpublished opinion, this court relied on a similarly highly specific, largely
corroborated tip about a marijuana grow operation. Thomas, 1993 WL 337553, at *5.
I cannot agree that five months of electrical-usage records can sufficiently refresh and
corroborate a vague, eight-month-old tip.
No. 08-5239 United States v. Thomas Page 21

Therefore, I conclude that the evidence presented in the affidavit when viewed
together and in its totality is insufficient to support a reasonable belief that probable
cause existed and that the affidavit is invalid on its face because the readily apparent
holes in the information provided cannot provide a totality of facts that support probable
cause.2 See United States v. Hammond, 351 F.3d 765, 771-72 (6th Cir. 2003) (holding
that informant’s five-month-old tip that “dope” was actually present on defendant’s
property was not stale because “the crime of drug trafficking is ongoing, the defendant’s
location is established, the drugs were likely to be there for an indefinite period of time,
and the place to be searched constituted a secure operational base,” but that the
informant’s tip “was vague, not obviously reliable, and entirely unsupported by any
independent investigation on the part of the police,” making it insufficient to establish
probable cause on its own); United States v. Miller, 314 F.3d 265, 271 (6th Cir. 2002)
(Moore, J., concurring) (noting that affidavit with named informant who personally
observed marijuana grow operation within twenty-four hours of warrant issuance and
who drove by residence with officer after providing tip presented under precedent “a
close case” where police corroborated only wholly innocent facts), cert. denied, 539 U.S.

2
I follow this court’s requirement that we conduct our review based on a totality of the
circumstances, guided by our precedents. Because of the deficiencies in the whole of the affidavit, I
conclude that a review of the totality of the circumstances does not provide “a substantial basis for
determining the existence of probable cause.” Illinois v. Gates, 462 U.S. 213, 239 (1983). The
confidential informant’s tip is neither specific nor two-pronged, as the majority opinion attempts to show.
Majority Op. at 8. The “reputation . . . as being a successful producer of just not leaf marijuana, but the
more sought after ‘bud’ of the plant” is the only “provided information regarding illegal indoor marijuana
grow operation.” R.18, Ex. 1. Labeling the reputation statement as “specific” does not address the point
made above that the affidavit does not contain sufficient corroboration of this simple tip to provide
probable cause based on the tip, even accepting that the confidential informant here was sufficiently
reliable. United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc), did not remove this court’s
requirement to review, as part of the totality of the circumstances, whether the confidential informant’s tip
itself contains sufficient information to negate the need for independent corroboration. See id. at 976 (“We
hold that where a known person, named to the magistrate, to whose reliability an officer attests with some
detail, states that he has seen a particular crime and particular evidence, in the recent past, a neutral and
detached magistrate may believe that evidence of a crime will be found.” (first emphasis added)). Contrary
to the simplified inquiry the majority outlines, Majority Op. at 7–8, we cannot omit a review of whether
the tip on its own is sufficient based on its content. Just a reliable informant is not enough if the content
of the tip provided does not support a finding of probable cause. See United States v. McCraven, 401 F.3d
693, 697–98 (6th Cir.) (concluding that sufficiency of specific tip that a reliable confidential informant had
been inside the defendant’s house “within the past five days” and personally “observed the [defendant]
storing and selling cocaine and marijuana inside the residence” presented “a close question” that the court
“need not resolve” based on Leon), cert. denied, 546 U.S. 1010 (2005); Hammond, 351 F.3d at 771–72
(finding three-fold error in a vague tip, from a “not obviously reliable” informant, that was “entirely
unsupported by any independent investigation”). Nowhere in Hammond did we state that the confidential
informant’s vague, unsupported tip could have been sufficient if only the confidential informant had been
more reliable.
No. 08-5239 United States v. Thomas Page 22

908 (2003); United States v. Ferguson, 252 F. App’x 714, 720-21 & n.4 (6th Cir. 2007)
(unpublished opinion) (upholding, under precedent, probable cause determination with
general informant tip corroborated by innocent facts based in part on “significant level
of prior and accurate assistance in the past”).

II. THE LEON GOOD-FAITH EXCEPTION DOES NOT APPLY

I write separately in dissent from Part II of the majority opinion because I believe
that either the third or fourth Leon circumstance may negate the good-faith exception.
Based on my conclusion that the affidavit was insufficient to support probable cause on
its face, I cannot agree with the majority’s statement that “we also cannot say that a
reasonable officer could not have presumed the affidavit and warrant to be valid.”
Majority Op. at 13. I acknowledge that “‘it is entirely possible that an affidavit could
be insufficient for probable cause but sufficient for good-faith reliance,’” because it is
more difficult to show that an affidavit presented a “substantial basis” for finding
probable cause rather than to establish that an officer’s reliance on the affidavit was
“objectively reasonable.” United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006)
(quoting United States v. Washington, 380 F.3d 236, 241 (6th Cir. 2004)).

But even viewed in light of “all of the circumstances,” the fatal flaws in the
affidavit—the vague, insufficiently refreshed, and largely uncorroborated reputation and
sales statements coupled only with mildly inculpatory electrical-usage records—lead me
to conclude that, looking at the whole of the affidavit and the totality of the evidence
presented, “a reasonably well trained officer would have known that the search was
illegal despite the magistrate’s authorization.” United States v. Leon, 468 U.S. 897, 922
n.23 (1984); see United States v. Weaver, 99 F.3d 1372, 1380-81 (6th Cir. 1996) (listing
reasons why officer could not rely on warrant affidavit related to alleged marijuana grow
without any meaningful corroboration efforts, including that “[w]ith little firsthand
information and no personal observations, [the officer] should have realized that he
needed to do more independent investigative work to show a fair probability that this
suspect was either possessing, distributing, or growing marijuana”). Only by engaging
in very heavy inferences can the majority opinion support its conclusion that “the
No. 08-5239 United States v. Thomas Page 23

affidavit contains enough” to provide probable cause, Majority Op. at 8,—a conclusion
I cannot join, and one that I think cautions mightily against finding that the good-faith
exception applies to this affidavit. See Hython, 443 F.3d at 489 (“The probable cause
inquiry necessarily involves inferences—between a confidential informant’s past and
future reliability, between an observed pattern of behavior and a suspected crime, or
between the nature of a crime and the location of its evidence, for example. . . . But in
each case, the inference is drawn between facts that are contained in the affidavit or
warrant application, and not on assumptions about standard police practices or
unasserted but hypothetically possible facts.”). The affidavit in this case did not present
sufficiently compelling facts to infer the nexus between Thomas’s residence and the
evidence of a grow operation that the officers sought to seize. See Higgins, 557 F.3d at
391; United States v. Williams, 544 F.3d 683, 686-88 & n.1 (6th Cir. 2008) (holding
inference of nexus between evidence sought and suspected criminal’s residence was
available under “the particular facts” in affidavit demonstrating defendant’s “continuing
and related” criminal activity); United States v. Hang Le-Thy Tran, 433 F.3d 472, 482
(6th Cir. 2006) (“In this circuit, the failure to establish an adequate nexus between the
residence and any criminal activity within the four corners of the affidavit is not
necessarily fatal, provided that the information is actually presented to the magistrate
through sworn oral testimony.” (emphasis added)); United States v. Newton, 389 F.3d
631, 641-42 (6th Cir. 2004) (Moore, J., concurring in part) (detailing prior cases that
each “included some additional ‘plus’ that helped form a nexus between the place to be
searched and the evidence sought”), vacated in part on other grounds, 546 U.S. 803
(2005); United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc) (“We
have previously found Leon applicable in cases where we determined that the affidavit
contained a minimally sufficient nexus between the illegal activity and the place to be
searched to support an officer’s good-faith belief in the warrant’s validity, even if the
information provided was not enough to establish probable cause,” because “these facts
[of physical proximity between the drugs and the residence] . . . were not so vague as to
be conclusory or meaningless.”).
No. 08-5239 United States v. Thomas Page 24

I also disagree with the majority’s reliance on “the district court’s explanation
that the officers ‘presented a neutral judicial officer with an affidavit stating that he was
aware of information indicating the presence of a marijuana growing operation at a
specific location based on the report of a reliable informant that was corroborated by
electric usage records and other details about the Defendant.’” Majority Op. at 13
(quoting R.35 at 20 (Dist. Ct. Op.)) (emphasis added). Reading the district court’s
statement in the context of the entire opinion, I can only speculate as to what “other
details” the court meant to reference—the three prior sales that the confidential
informant had witnessed from some unknown vantage point on Thomas’s property, see
R. 35 at 17, or the reputation statement. It defies logic to conclude that the sole
information the confidential informant provided that directly implicated Thomas as a
grower (the “report” in the form of the reputation statement, see R. 18, Ex. 1 at ¶¶ 1-2)
could corroborate itself, and, as I stated above, the sales could not corroborate the
alleged presence of a grow operation.

For these reasons, I conclude that the totality of the evidence presented in the
warrant affidavit here was so lacking in indicia of probable cause to make the officers’
reliance objectively unreasonable. The search cannot be justified on the basis of Leon.

III. CONCLUSION

For these reasons, I respectfully dissent from Parts I and II of the majority
opinion, and I would REVERSE the district court’s denial of Thomas’s motion to
suppress and REMAND for further proceedings consistent with my opinion.
Notwithstanding that belief, I concur in Part III.