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United States v. Christian

United States Court of Appeals, Sixth Circuit

June 26, 2018

United States of America, Plaintiff-Appellee,
v.
Tyrone Dexter Christian, Defendant-Appellant.

          Argued: March 9, 2018

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:15-cr-00172-1-Robert J. Jonker, Chief District Judge.

         ARGUED:

          Daniel A. Bihrle, Grant E. Mitchell, UNIVERSITY OF TENNESSEE, Knoxville, Tennessee, for Appellant.

          Timothy VerHey, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Daniel A. Bihrle, Grant E. Mitchell, Lucille A. Jewel, Wesley S. Love, Jack F. Smith, UNIVERSITY OF TENNESSEE, Knoxville, Tennessee, for Appellant.

          Timothy VerHey, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.

          OPINION

          RONALD LEE GILMAN, CIRCUIT JUDGE.

         Tyrone Christian was convicted by a jury for (1) possessing a controlled substance with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (3) possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Before trial, Christian sought to suppress evidence obtained via a search warrant that he argued was not supported by probable cause. He also challenged the admission at trial of a recorded telephone call between two other individuals on the grounds that it was inadmissible hearsay. The district court denied the motion to suppress and admitted the recording of the call.

         Christian renews both challenges on appeal. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

         I. BACKGROUND

         On September 3, 2015, a state magistrate issued a search warrant for Christian's residence located at 618 Grandville Avenue in Grand Rapids, Michigan (the Residence), based on information contained in a four-and-a-half-page affidavit prepared by Thomas Bush, a Grand Rapids police officer. But the equivalent of only one page of the affidavit is dedicated to facts specifically related to Christian. The rest concerns generic information, including Officer Bush's qualifications and the nature of drug investigations.

         The search was carried out shortly after midnight on September 4, uncovering various quantities of heroin, cocaine, and marijuana, as well as two firearms and sandwich bags with cut corners. Christian was not present for the search, but was stopped and detained in his car nearby.

         Before trial, Christian sought to suppress the evidence from the search of the Residence, arguing that the warrant was not based on probable cause. The district court denied the motion, and the evidence was introduced at trial. Christian was convicted on all three counts with which he was charged. He now timely appeals his conviction, contending that the district court erred when it allowed evidence from the search to be introduced at trial.

         Officer Bush's affidavit sought authorization to search the Residence for controlled substances, firearms, records relating to trafficking in controlled substances, and any quantities of cash that might be proceeds from the sale of controlled substances. In support of his request, Officer Bush outlined his qualifications and experience in investigating drug crimes and noted that he and other law-enforcement officers had become "involved in a drug investigation involving Tyrone Christian." He also provided six assertions of factual support relating to Christian:

• The Grand Rapids Police Department had previously executed two search warrants at Christian's residence in 2009 and 2011 as part of drug investigations targeting Christian. Arrests resulted from both searches (including the arrest of Christian's wife for "maintaining a drug house").
• Christian has been convicted of several drug-related crimes over a nineteen-year period: (1) possession of cocaine in 1996, (2) an unspecified second controlled-substance offense in 2002, (3) delivery/manufacture of marijuana and possession of a firearm by a felon in 2009, and (4) delivery/manufacture of cocaine in 2011.
• In December 2014, Officer Bush "had contact with a credible and reliable informant who provided information on several drug traffickers including Tyrone Christian." The affidavit states that the unnamed informant "provided names, nicknames, phone numbers, residences utilized by the drug traffickers and information regarding specific drug transactions," and that Officer Bush was "able to confirm much of the information provided."
• At the direction of Officer Bush, the informant conducted a controlled purchase of drugs from Christian at the Residence in January 2015, eight months before the warrant in question. The affidavit notes that the drugs purchased were field tested with positive results.
• "Within the last four months, [Officer Bush] has been involved in or received information from several debriefs of subjects who have stated that Tyrone Christian is a large scale drug dealer. These subjects further stated that they have purchased large quantities of heroin and crack cocaine from Christian at 618 Grandville Avenue [] in the last four to five months."
• On September 3, 2015-the date that the warrant was requested and issued-surveillance of the Residence was established. A subject later identified as Rueben Thomas was seen "walk[ing] away from the area of 618 Grandville Avenue and leav[ing] the area in a vehicle." Surveillance of the vehicle continued until officers conducted a traffic stop for a civil infraction. During the stop, officers seized approximately 20 grams of heroin from the vehicle. Thomas admitted to being on Grandville Avenue, but denied being at the Residence, "contrary to observations of the law enforcement officers."

         In addition to contesting the validity of the search warrant, Christian argued at trial that statements made during a recorded telephone call between Rueben Thomas and Thomas's girlfriend, Tanisha Edwards, constituted inadmissible hearsay and thus should not be admitted. The call occurred while Thomas was in jail following his arrest on September 3, 2015. Edwards informed Thomas during the call that he should be grateful to Christian because Christian had removed "groceries"-allegedly referring to drugs and firearms-from Thomas's home following the arrest. This call was used to tie Christian to Thomas and to contraband later found buried in the backyard of the house belonging to Christian's mother.

         II. ANALYSIS

         A. The district court erred in denying Christian's motion to suppress.

         1. Standard of review

         "When reviewing a district court's decision on a motion to suppress, we use a mixed standard of review. . . ." United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). We review findings of fact under the clear-error standard and conclusions of law de novo. Id. "Whether a search warrant affidavit establishes probable cause to conduct the search is a legal question that this Court reviews de novo." United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010). "On appeal of a district court's decision on a motion to suppress, although we must view the evidence in a light most likely to support the decision of the district court, when the district court itself is a reviewing court, this court owes the district court's conclusions no particular deference." Id. (citations omitted and alterations incorporated). On the other hand, "[a]n issuing judge's findings of probable cause should be given great deference by the reviewing court and should not be reversed unless arbitrarily exercised." United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009) (quoting United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002)).

         2. Probable cause

         The Fourth Amendment provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         U.S. Const. amend. IV. "'At the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)); see also Payton v. New York, 445 U.S. 573, 585 (1980) ("[T]he 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., 407 U.S. 297, 313 (1972))).

         "To establish probable cause adequate to justify issuance of a search warrant, the governmental entity or agent seeking the warrant must submit to the magistrate an affidavit that establishes 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" Brooks, 594 F.3d at 492 (quoting United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009)). This requires "a nexus between the place to be searched and the evidence sought," United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006), at the time the warrant is issued, United States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006). The probable-cause standard is practical and nontechnical. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). In other words, a reviewing court should consider the "totality of the circumstances" rather than "engage in line-by-line scrutiny of the warrant application's affidavit." United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008). But the court must limit its "review of the sufficiency of the evidence supporting probable cause . . . to the information presented in the four-corners of the affidavit." Frazier, 423 F.3d at 531.

         Christian argues that the warrant issued to search the Residence was not supported by probable cause because each of the affidavit's supporting facts was either stale or failed to establish a sufficient nexus between the evidence sought and the Residence. To determine whether the affidavit supported probable cause to search the Residence, we will first assess the significance of each piece of evidence relied upon, and then we will consider all the evidence together to determine whether the totality of the circumstances supports a finding of probable cause.

         The dissent contends that our approach is inconsistent with the well-established mandate to assess probable cause by considering the totality of the circumstances. Dissent Op. 33. According to the dissent, we have engaged in a "divide-and-conquer-approach" to assess the sufficiency of the affidavit that "has no place in our law." Id. To the contrary, the totality-of-the-circumstances approach requires us to examine each piece of evidence in the affidavit to assess its probative value and then determine whether those pieces of evidence are as a whole sufficient to establish probable cause. Gardenhire v. Shubert, 205 F.3d 303, 315 (6th Cir. 2000) (noting that, in the context of an arrest, "[p]robable cause determinations involve an examination of all facts and circumstances within an officer's knowledge at the time of the arrest" (quoting Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999))); United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) ("[C]ourts may not engage in a 'divide-and-conquer' analysis of facts to determine whether probable cause existed. However, neither may a court arrive at probable cause simply by piling hunch upon hunch. Thus, in assessing the totality of the circumstances, a reviewing court 'must examine the facts individually in their context to determine whether rational inferences can be drawn from them' that support a probable cause determination." (citations omitted)).

         i. Observations of Thomas

         As noted above, officers observed Thomas "walk away from the area" of the Residence and leave in a vehicle on the day that the search warrant was issued. They followed Thomas and stopped him after an unknown period of time for a driving infraction. During the stop, the officers found approximately 20 grams of heroin in Thomas's vehicle. Crucially, the affidavit does not state that the officers saw Thomas entering or leaving the Residence, even though their surveillance was targeted specifically at that property. Nor does it say that Thomas was seen with Christian. In fact, the affidavit does not assert that there is any connection at all between Thomas and Christian.

         True enough, the affidavit states that, during the traffic stop, "Rueben Thomas admitted that he had recently been at an address on Grandville Avenue in the City of Grand Rapids but denied being at 618 Grandville, contrary to observations of the law enforcement officers." But we decline to interpret this "contrary to observations" statement as an indication that officers saw Thomas actually entering or leaving the Residence itself. Officer Bush was undoubtedly aware that any evidence of Thomas being at the Residence would be highly relevant to the probable-cause determination, but chose instead to state simply that Thomas was seen "in the area"-a vague description that does not place Thomas at the Residence. Absent a direct statement that Thomas was seen entering or leaving the Residence, or even at the Residence in any sense, we are unwilling to read such a factual assertion into the affidavit.

         The dissent, on the other hand, contends that the affidavit's lack of a direct statement that Thomas was at the Residence is attributable to the "haste of a criminal investigation," and that we are in effect requiring the affidavit to include "magic words," contrary to precedent from the Supreme Court. Dissent Op. 34 (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)). But the affidavit's inclusion of the specific, nontechnical language "in the area" appears to us more consistent with an honest acknowledgement that the officers did not observe Thomas on the property itself. In fact, the common-sense meaning of the language "in the area" suggests that Thomas was near but not at the Residence when observed.

         The dissent also notes that the affidavit "need only have alleged 'facts that create a reasonable possibility'" that "Thomas was seen leaving 618 Grandville." Dissent Op. 35. This statement reflects a subtle but crucial error. The affidavit must contain facts that establish probable cause that evidence of drug activity would be present in the Residence at the time of the search. Stated differently, probable cause must be established in relation to whether there is evidence of drug activity in the Residence, not in relation to whether Thomas was seen leaving the Residence. See United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) ("To establish probable cause adequate to justify issuance of a search warrant, the governmental entity or agent seeking the warrant must submit to the magistrate an affidavit that establishes 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" (quoting United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009))).

         So even if the affidavit had stated that Thomas was seen on the lawn or in the driveway of the Residence, we would still have to speculate that Thomas was at one point inside the Residence and, taking the speculation one step further, that he engaged in drug activity while inside. Such an inference is made even more tenuous by the fact that there is nothing in the affidavit to suggest that the heroin later recovered during the traffic stop was on Thomas's person, rather than simply in the car, when Thomas was observed walking in the area of the Residence by the officers.

         This leaves us to consider the significance of the following: A single individual with no known connection to Christian was seen walking away from the area of the Residence and then leaving that area in a car. He was followed by officers to a subsequent location where a traffic stop was conducted, during which heroin was found in the vehicle. If this provides any nexus at all between evidence of drug trafficking and the Residence, that nexus is so speculative and attenuated that it cannot, without more, support a finding of probable cause. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (noting that a hunch is insufficient to support a finding of reasonable suspicion for a Terry stop, and that the reasonable-suspicion standard is easier to satisfy than the probable-cause standard).

         To conclude otherwise would allow officers seeking a warrant to rely on speculation that drug activity near a residence is related to that residence, significantly lowering the burden for the government to show probable cause in communities where drugs are prevalent. Because the government cites no case that would support such a proximity test for establishing probable cause, we find that the officers' observations of Thomas have little value on their own. But that does not end our inquiry. We must consider, as we do below, whether other evidence in the record bolsters or corroborates a connection between Thomas's alleged drug activity and the Residence, such that the magistrate could have found a fair probability that evidence of drug trafficking would be found at the Residence at the time of the search.

         ii. Tips from unidentified informants

         The affidavit further states:

Within the last four months, your affiant has been involved in or received information from several debriefs of subjects who have stated that Tyrone Christian is a large scale drug dealer. These subjects further stated that they have purchased large quantities of heroin and crack cocaine from ...

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