UNITED STATES v. HILL (2023)

ORDER DENYING (1) MOTION TO SUPPRESS AND (2) REQUEST FOR FRANKS HEARING (ECF NOS. 22 & 27)

Based on an anonymous tip, detectives from the Dearborn Police Department began investigating Barron Hill for drug trafficking. A federal indictment was returned charging Hill with possession of controlled substances with intent to distribute, 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c), and being a previously convicted felon in possession of a firearm, 18 U.S.C. § 922(g)(1).

Hill has filed a motion to suppress (ECF Nos. 22, 27), challenging three search warrants obtained during the investigation. He also requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), contending that the warrant applications contain material falsehoods.

The government filed a brief in opposition (ECF No. 36), and the Court held a hearing on the motion on July 17, 2023. Having carefully considered the briefs and the arguments made at the hearing, the Court will DENY the motion to suppress and the request for a Franks hearing.

I. BACKGROUND

An anonymous tip led the Dearborn Police Department to investigate Barron Hill for drug trafficking. Eventually, a Dearborn detective applied for and received three warrants from the Honorable Mark Somers of the 19th Judicial District Court. The warrants authorized (1) placement of a GPS tracker on a Dodge Caravan owned by Hill, (2) a search of Hill's residence, and (3) a search of Hill's financial records and a safe-deposit box held at Fifth Third Bank.

The first warrant was for the tracker. In an affidavit supporting the warrant application, Detective Stephen Dluzynski of the Dearborn Police Department attested to the following facts:¹

• An anonymous tipster told police in June that Hill used the Caravan to deliver prescription pills, crack cocaine, and marijuana to customers in and around Dearborn and Detroit (including to a specific address on Prest Street in Detroit) and to travel to a Morrow Circle address in Dearborn where he “cook[ed] his crack.” ECF No. 27, PageID.130-31. The tipster supplied the car's license plate number and relayed that Hill lived somewhere on Marlowe Street in Detroit. Id. at PageID.131.

• A criminal history check on Hill revealed numerous narcotics-related arrests and convictions, although Dluzynski did not provide details about these prior arrests and convictions. Id. at PageID.131.

• On June 16, 2022, Dluzynski found the Caravan parked outside of a house on Marlowe Street in Detroit. Id. at PageID.131. He saw Hill exit the Caravan, walk to a vacant lot, and sit with some other individuals. Id. After about 15 minutes, a Jeep pulled up. Id. Hill walked to the Jeep and briefly interacted with the occupants in what Dluzynski suspects was a hand-to-hand sale of drugs. Id.

• On June 29, Dluzynski conducted additional surveillance at the Marlowe Street address. Id. at PageID.131. After seeing Hill leave the house in the Caravan, Dluzynski followed him to the Prest Street address from the tip and watched him pull up to the curb. Id. A male exited the residence, approached Hill's driver-side door, and exchanged objects with Hill during a 20-second interaction. Id. Dluzynski believes this was a second hand-to-hand drug sale. Id.

The search warrant for the tracking device was approved on June 29, 2022. About a month later, on July 26, 2022, Dluzynski obtained a second warrant, this time to search the Marlowe Street residence. In a 10-page affidavit, he included the same information about Hill's criminal history and the two suspected drug sales he had witnessed on June 16 and June 29. Id. at PageID.119-20. He added some details regarding the anonymous tip, which he now said he received in May 2022,² and described further progress in the investigation, including observations and photographs of additional suspected drug activity:

• The tipster provided information that an individual named “Tom” owned the Morrow Circle residence where Hill cooked his crack. Id. at PageID.119. The tipster also stated that Hill owned a white Chrysler Town and Country and that his sales spanned into the City of Melvindale. Id.

• Investigators installed a GPS tracker on the Caravan in July 2022, as they had been authorized to do. Id. at 121.

• On July 18, 2022, Dluzynski saw the Caravan parked outside the Marlowe Street house. Id. Later that day, Dluzynski also observed the car parked near the Prest Street address. Id. at PageID.122. Hill remained in the car for about half an hour before getting out and entering another vehicle. Another half an hour later, Hill got back into the Caravan, drove to Marlowe Street, and entered the house. Id. A short while later, he left and got into the passenger seat of a white Chrysler, which investigators followed to Melvindale Square Apartments. Id. Hill entered one of the apartments and remained for only two minutes before leaving. Id. Dluzynski believed this visit was a short-stay drug sale. When Dluzynski ran a check on the Melvindale unit, he learned it was registered to an individual named Thomas, who was also registered at a Morrow Circle address in Dearborn the tipster had flagged.

• On July 26, 2022, Dluzynski and another investigator conducted a trash pull at the Marlowe Street address in Detroit. Id. at PageID.123. The trash pull yielded several lotto tickets and a plastic sandwich bag with both corners missing. Id. From training and experience, Dluzynski believed the sandwich bag was “corner tie” packaging for cocaine. Id. He associated the lotto tickets with packaging for heroin and fentanyl. Id. at PageID.124.

• Later on July 26, investigators witnessed three suspected drug sales. They followed Hill's Caravan to the Park Drive Motel in Redford. Id. at PageID.124. In the parking lot, a male approached the Caravan, disappeared behind the vehicle, and walked away two minutes later. Id. Hill then drove to the Prest Street address and parked. Id. A female approached and interacted with Hill through the passenger door for about a minute before walking away. Id. A male also approached the vehicle, spoke with Hill through the driver's side window, reached into the vehicle, and walked away. After this exchange, Hill returned to the Marlowe Street house.

• Since investigators installed the tracker on the Caravan, the tracker had shown that the car was parked near the Marlowe Street address almost nightly.

That next day, on July 27, 2022, officers executed the search warrant on the Marlowe address. Before entering the home, investigators watched Hill use his keys while exiting the residence. Hill got into a vehicle and started driving away. Officers conducted a traffic stop and seized his keys. ECF No. 31-3, PageID.201. Using the keys, officers entered and searched the residence pursuant to the warrant. They found and seized two handguns, ammunition, a container of sandwich bags, a digital scale, crack cocaine, and a satchel containing drugs and suspected cash proceeds from drug sales. Id. at PageID.202.

Following the search of Hill's home, Dluzynski applied for and obtained a third warrant, authorizing a search of Hill's financial records and a safe-deposit box at Fifth Third Bank. The following attestations of fact supported the warrant application:

• Dluzynski had received information that Hill had a bank account at Fifth Third Bank. ECF No. 27, PageID.140. It is unclear whether Dluzynski attributes this information to the anonymous tip (received in May 2022)3 or to the search of Hill's house. Id.

• During June and July 2022, investigators surveilled Hill and witnessed several suspected drug sales. Id. at PageID.140-42.

• On July 27, 2022, investigators executed a warrant at Hill's home. Before searching the home, officers detained Hill and took his keys. They used the keys to enter and found and seized 70.1 grams of suspected crack cocaine and two handguns. On the same keyring where Hill kept his keys to the residence they found keys to a safe-deposit box. Id. at PageID.142.

• Investigators visited a Dearborn branch of Fifth Third Bank to confirm that Hill had a safe-deposit box there and that the safe-deposit box key that they had found on his keyring was for a box at that branch. Id. at PageID.142.

• From training and experience, Dluzynski knew that drug dealers often put drug-sale proceeds into legitimate bank accounts. Based on the results of the search of Hill's home, Dluzynski believed that Hill was using accounts and a safe-deposit box at Fifth Third Bank to launder and safeguard drug proceeds. Id. at PageID.143.

Officers executed the warrant on the same day it issued, July 27, 2022. In the safe-deposit box, they found and seized an additional $9,000 in suspected drug-sale proceeds.

Hill now moves to suppress the evidence uncovered during the execution of the warrants, as well as his post-arrest statements.

II. LEGAL STANDARDS

Federal constitutional law applies to state warrants challenged in federal court. United States v. Helton, 35 F.4th 511, 517 (6th Cir. 2022). The Fourth Amendment to the United States Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. To establish probable cause, officers must establish “a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Put another way, there must be a “nexus” between the “place” to be searched and the “things” to be seized. United States v. Reed, 993 F.3d 441, 447 (6th Cir. 2021).

In assessing the sufficiency of an affidavit supporting a warrant, the Court looks only to the four corners of the warrant; information known to an officer but not conveyed to the warrant-issuing judge is irrelevant. United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010). To encourage use of the warrant procedure, a magistrate judge's probable-cause determination is afforded “great deference” and should be reversed only if the issuing judge arbitrarily exercised his discretion. Gates, 462 U.S. at 236, 103 S.Ct. 2317 (internal quotations omitted); see also United States v. Baker, 976 F.3d 636, 646 (6th Cir. 2020) (recognizing courts’ obligations to give issuing judges the benefit of the doubt in “doubtful or marginal cases”).

The weight to be given to an informant's report depends on the informant's reliability and basis of knowledge; a tip that has substantial independent corroboration or comes from a known source carries more weight than an uncorroborated anonymous tip. Gates, 462 U.S. at 230-34, 103 S.Ct. 2317; United States v. Dyer, 580 F.3d 386, 390 (6th Cir. 2009). “Anonymous tips ․ demand more stringent scrutiny of their veracity, reliability, and basis of knowledge than reports from confidential informants.” United States v. Helton, 314 F.3d 812, 820 (6th Cir. 2003). Drug paraphernalia recovered from a trash pull, in combination with other evidence of drug-trafficking activity, may be used to establish probable cause to search a home. United States v. Abernathy, 843 F.3d 243, 251-52 (6th Cir. 2016).

III. DISCUSSION

A. Franks Hearing

The Court begins with Hill's request for a Franks hearing. Affidavits supporting warrant applications are generally entitled to a “presumption of validity.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. A defendant can overcome that presumption and impeach the contents of an affidavit at a hearing if he makes “allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations [are] accompanied by an offer of proof.” Id. at 171-72, 98 S.Ct. 2674.

Proving an entitlement to a Franks hearing is no easy task: A defendant must make a “substantial preliminary showing” that an affiant included a false statement intentionally, knowingly, or with reckless disregard for the truth—and that, without the statement, the remnants of the affidavit could not support a finding of probable cause. Id.; United States v. Bateman, 945 F.3d 997, 1008 (6th Cir. 2019).

Hill points to a single “inconsistency” between the affidavits as reason to hold a Franks hearing. ECF No. 27, PageID.109. Specifically, he notes that the first affidavit states investigators received the anonymous tip in June, while the later two affidavits state that the tip was received in May. He asserts that “[t]his blatant inconsistency[ ] puts into question when and if this anonymous tip actually occurred.” Id.

At the hearing, Hill presented nothing to establish that this inconsistency was anything other than a negligent typographical error. While he maintained that the affidavits were riddled with falsehoods, he was unable—despite repeated questioning—to pinpoint any specific false statement. See United States v. Green, 572 F. App'x 438, 442 (6th Cir. 2014) (noting that the “well-settled framework for Franks hearings requires a defendant to point to specific false statements” and then “accompany his allegations with an offer of proof” (emphasis in original, quotations omitted)). Hill questioned why the Dearborn Police Department investigated the case, despite the fact that there was no criminal activity observed in Dearborn, and suggested that the tipster lied to the police. But Hill's concerns fall short of establishing reckless disregard for the truth or falsehood, and the purpose of a Franks hearing is to challenge an investigator's truthfulness—not a tipster's.

While Dluzynski's affidavits may not be models of technical perfection—they contain grammatical errors and some apparent cut-and-paste jobs—such imperfections merely illustrate the reality that search-warrant applications “are normally drafted by nonlawyers in the midst and haste of a criminal investigation.” Brooks, 594 F.3d at 490 (internal quotations omitted). Because Hill offers little other than minor typographical errors to support his accusations of falsehoods, his assertion that Dluzynski lied does not rise above mere speculation. This is insufficient to warrant a Franks hearing. United States v. Pirosko, 787 F.3d 358, 370 (6th Cir. 2015).

Accordingly, the request for a Franks hearing is DENIED.

B. The Warrants

The Court will evaluate the warrants in the order they were issued, rather than in the order Hill challenges them.

1. GPS Tracking Device

The use of a tracking device to monitor a vehicle's movement is considered a search under the Fourth Amendment and therefore must be authorized by a warrant. United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). A warrant for such a device may be issued “if a supporting affidavit establishes probable cause to believe that the device will uncover evidence, fruits, or instrumentalities or a crime.” United States v. Coleman, 923 F.3d 450, 454 (6th Cir. 2019). The inquiry is not whether probable cause exists to believe that evidence of a crime will be found in the vehicle, but rather whether there is a fair probability that information gathered from the tracking device will reveal evidence of criminal behavior. United States v. Petitfrere, No. 22-00037, 2022 WL 2134590, at *4 (E.D. Ky. June 14, 2022); United States v. Harden, No. 20-20280, 2021 WL 5506439, at *3 (E.D. Mich. Nov. 24, 2021).

Hill contends that the warrant for the GPS tracker is deficient because it contains nothing more than vague statements from an anonymous tipster that Hill was using the Caravan to sell drugs, along with observations of stops and meetings that were entirely consistent with innocent travel and daily living activities. ECF No. 27, PageID.108.

Considering the totality of the facts set out in the affidavit, the tipster's information combined with the facts developed by Dluzynski's independent police work was sufficient to establish probable cause for issuance of the tracking-device warrant. It is true, as Hill points out, that the investigation started off with a single, anonymous tip, which—because the source was anonymous—contained no indicia of fact establishing its reliability. See United States v. Yarbrough, 272 F. App'x 438, 442 (6th Cir. 2007) (“[T]ips from known informants have more value than those from unknown ones.”). But the tip included a number of specific details subject to verification: it provided the make, model, color, and license plate number of the vehicle which the tipster said Hill was using to deliver drugs; it provided an approximate location for Hill's residence; and it identified two specific addresses where it alleged Hill was engaging in drug-trafficking activity.

Anonymous tips corroborated by independent police work can suffice to establish probable cause. Gates, 462 U.S. at 244, 103 S.Ct. 2317. And Dluzynski's affidavit details substantial efforts to corroborate information from the tip, including a criminal history check and independent observations. These observations were not limited to confirming merely innocent details—such as the fact that Hill in fact drove the car flagged by the tipster. Cf. Harden, 2021 WL 5506439, at *5 (finding insufficient corroboration where law enforcement confirmed only that defendant was associated with vehicle and apartment flagged by tip). Rather, Dluzynski observed both Hill and the vehicle participate in two interactions which he believed, based on his training and experience, were hand-to-hand drug sales. In the probable cause analysis, officers may rely on such “experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Ellis, 497 F.3d 606, 613 (6th Cir. 2007) (quotations omitted).

In United States v. Coleman, the Sixth Circuit upheld the issuance of a tracking-device warrant based on the following attestations:

• A confidential source had identified the defendant as a drug supplier;

• Law enforcement had investigated four prior drug sales, one of which involved the defendant dropping off drugs;

• An investigator had seen the defendant drive to a residence and conduct what he believed was a short-stay drug sale;

• The defendant had two prior convictions for controlled-substance offenses; and

• A LEIN check on the vehicle identified the defendant as the vehicle's owner.

923 F.3d at 454.

The facts in support of probable cause in this affidavit may be slightly less than those in Coleman, but as the Sixth Circuit observed in that case, other circuits have upheld tracking warrants issued on the basis of weaker facts. See, e.g., United States v. Faulkner, 826 F.3d 1139, 1145 (8th Cir. 2016) (upholding vehicle-tracking warrant where confidential informant told police that defendant brought heroin from Chicago to Minneapolis, stayed at two addresses, and drove two vehicles, but where no one had directly observed either vehicle involved in suspected drug activity); United States v. McNeal, 818 F.3d 141, 150 (4th Cir. 2016) (upholding tracking warrant where affidavit established merely that vehicle was registered to suspect's mother and driven to banks and informant tipped authorities that vehicle was used in bank robberies). Moreover, the attestations here unquestionably tie Hill to the vehicle and the vehicle to suspected drug activity.

The existence of probable cause for issuance of the tracking-device warrant certainly could have been strengthened by additional observations and investigation. But the tip, plus Dluzynski's independent observations that both Hill and the car were involved in suspected drug-trafficking activity, are sufficient to establish probable cause that further evidence of drug trafficking was likely to be discovered by attaching the tracker to the car.

2. Search of the Marlowe Street Residence

“Probable cause exists to search a residence if an affidavit directly connects the residence with the suspected drug dealing activity.” United States v. Sheckles, 996 F.3d 330, 341 (6th Cir. 2021) (quotations and alterations omitted). A defendant's status as a drug dealer generally must be combined with some other evidence that he was engaged in “continual and ongoing operations” to justify a search of his residence. Id.

Hill challenges the existence of a nexus between his residence and suspected drug-trafficking activity. He attacks the anonymous nature of the tip and observes that the tipster said nothing about criminal activity occurring in his home. ECF No. 22, PageID.72, 76; PageID.105-06. Additionally, he emphasizes that Dluzynski did not observe any criminal activity in the home or find any drugs or drug residue during the trash pull he conducted. ECF No. 27, PageID.104-05. Hill further argues that the tip lacked sufficient corroboration because investigators did not use more invasive techniques—such as wiretaps, investigative stops, or pole cameras—to confirm their suspicions that he was selling drugs or that he “cooked his crack” in Dearborn. ECF No. 22, PageID.76-77

The Sixth Circuit has “struggled to identify the quantum of evidence needed to connect drug trafficking by an individual to a probability that evidence will be found in the individual's residence.” Reed, 993 F.3d at 448 (quotations omitted). On one hand, it has observed that “evidence is likely to be found where the dealers live.” United States v. Sumlin, 956 F.3d 879, 886 (6th Cir. 2020). On the other, it has rejected “the proposition that a defendant's status as a drug dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.” United States v. James, No. 22-3714, 2023 WL 4536086, at *3 (6th Cir. July 13, 2016) (quotations omitted). At the same time, it has acknowledged that “[e]vidence of a defendant's ongoing course of unlawful conduct may make it reasonable to conclude that he keeps evidence of his illegal scheme in his home.” United States v. McCoy, 905 F.3d 409, 418 (6th Cir. 2018).

Hill attempts to analogize his case to United States v. Granger, 635 F. Supp. 3d 584 (E.D. Mich. 2022), where Judge Drain concluded that a warrant application failed to establish the requisite nexus to justify a search of a residence and declined to apply the good-faith exception to save the search. In Granger, the defendant had come to law enforcement's attention because he lived at an address associated with a drug dealer. Id. at 587–88. Investigators attested that they believed the address was a stash house based on a single phone call they had intercepted two months before applying for a search warrant, during which the defendant and the dealer had discussed retrieving a bag and some plants. Id. at 588–89.

In finding that probable cause to search the residence was lacking, Judge Drain highlighted that the defendant was not a known drug dealer, that investigators had observed no actual or suspected drug activity at the residence, and that there was no information that an informant or anybody else had observed drug-dealing there. Id. at 590–91. To the extent that the two-month-old call could suggest involvement in drug trafficking, it was stale and could not support an inference of ongoing criminal activity. Id. at 591–92. In declining to find that the officers acted in good faith, Judge Drain emphasized that investigators attempted no independent corroboration of their hunches that the residence was associated with drug trafficking. Id. at 591–92.

But investigators here had much more to go on than the hunch and the single, stale phone call in Granger.

First, investigators here had a very specific, albeit anonymous, tip that Hill was involved in drug trafficking. The tipster told investigators not only that Hill was dealing drugs, but also that Hill lived in a particular part of town, that he used a particular vehicle to deliver drugs to a specific address, and that he had permission to “cook his crack” from an individual named “Tom” at another address. While the anonymous tipster never stated that he saw any drugs or any drug sales at Hill's residence, there is no “bright-line rule that first-hand knowledge of criminality is necessary to establish probable cause.” United States v. Crawford, 943 F.3d 297, 308 (6th Cir. 2019).

Second, Dluzynski independently corroborated nearly all of the tipster's information—including that Hill lived at the house, that he used the Caravan to drive from the house to suspected drug sales and returned from those sales to the house, that the suspected drug activity was ongoing, and that Hill in fact had a link to an individual named “Tom” who was affiliated with the Morrow Circle address where Hill allegedly “cooked his crack.” Indeed, by the time Dluzynski applied for the warrant, investigators had observed seven suspected drug sales on four separate days. Hill faults investigators for not using controlled buys, but the Sixth Circuit has observed that it has never required a successful controlled buy to corroborate a tip. United States v. Hargis, No. 22-5651, 2023 WL 2238658, at *4 (6th Cir. Feb. 27, 2023). The corroboration necessary is only “that which would, in combination with the informant's statement, create a fair probability that contraband or evidence of a crime will be found at the searched location.” Id. (quotations omitted).

Third, most critically, investigators developed independent evidence establishing a link between the home and suspected drug-trafficking activity that went beyond Hill's identity as a drug dealer. Not only had they observed Hill going directly to and from the house to conduct suspected drug sales, but they also confirmed that the vehicle from which he conducted most of those sales was parked near his home almost nightly. And they conducted a trash pull from the residence. From this pull, they recovered “corner-tie” plastic baggies and lotto tickets which, according to Dluzynski's training and experience, were consistent with ongoing activities to package drugs for street sales.

To be sure, the amount of refuse recovered was small, and the affidavit does not say whether investigators tested it for the presence of drug residue. But the alleged drug packaging materials drew a direct connection between the house and the suspected drug-trafficking activities. See United States v. Ward, No. 22-1233, 2023 WL 370911, at *4 (6th Cir. Jan. 23, 2023) (recognizing that “cases in which a finding of probable cause hinge[s] on the defendant's status as a drug dealer alone can present close calls” but upholding residential search warrant because it detailed repeated travel to and from residence and defendant drove his car directly from residence to drug sale).

Hill's challenges depend on viewing each of Dluzynski's attestations of fact in isolation. Probable cause, however, must be evaluated based on the totality of the circumstances. United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004). When considered together, especially in light of the deference due to the judge who issued the warrant, the facts set out in the affidavit were sufficient to establish probable cause that evidence of drug-trafficking activity would be discovered inside Hill's home. As a whole, those facts include: detailed and verifiable tip information about Hill's drug trafficking; the vehicle and the locations in which he operated; independent police observations of suspected drug activity; GPS location data confirming that Hill's Caravan was parked outside his home almost nightly; Hill's criminal history; and finally a small amount of suspected drug refuse recovered from a trash pull. Although not overwhelmingly strong, these facts established a sufficient nexus between Hill's drug trafficking and his home.

Even if one accepts for the sake of argument Hill's position that the nexus should have been stronger, the affidavit would easily fall within the good-faith exception to the exclusionary rule articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Though the government disavowed reliance on this exception during oral argument, the multi-page affidavit—which details extensive surveillance of Hill going to and from his home to engaged in suspected drug activity, and includes photographs taken during that surveillance—is not so obviously deficient that a reasonable officer would know not to rely on it. See United States v. Ardd, 911 F.3d 348, 351-52 (6th Cir. 2018) (collecting cases finding good-faith reliance on residential search warrants supported by weaker links between residence and narcotics activity).

3. Search of Safe-Deposit Box

Citizens generally have legitimate expectations of privacy in the contents of their safe-deposit boxes. United States v. Thomas, 878 F.2d 383 (Table), 1989 WL 72926, at *2 (6th Cir. 1989).

Hill contends that the affidavit supporting the warrant authorizing the search of his safe-deposit box and financial records failed to articulate facts connecting the safe-deposit box with any criminal activity. The government did not specifically address this challenge in its responsive brief. But during oral argument, it argued that, because the affidavit stated that the key to the box was seized from Hill's keyring when he was detained pending the search of his home, it adequately established a substantial likelihood that the box contained drug-trafficking proceeds.

As to this warrant, Hill's contention that the affidavit lacks sufficient facts establishing a nexus between his suspected drug-trafficking activities and the safe-deposit box is well taken.

In United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994), the Sixth Circuit declined to find probable cause for the search of the defendant's safe-deposit box. After receiving tips from informants that the defendant was dealing drugs, investigators confirmed some innocent details and began surveilling the defendant's property but never witnessed any illegal activity. Id. at 1096. They ran a credit check, discovered that the defendant had some loans at a local bank, and asked for and received a warrant to search his safe-deposit box. Id.

In concluding that the warrant application failed to establish probable cause, the Sixth Circuit acknowledged that the supporting affidavit contained attestations similar to the ones here—that, “[b]ased on his training and experience, [the investigator] believe[d] ․ that it is not uncommon for the records, etc. of ․ [drug] distribution to be maintained in bank safe deposit boxes.” Id. But, while such training and experience were relevant, investigators articulated nothing “more than a guess that contraband or evidence of a crime would be found in the boxes” in the warrant application. Id. at 1097-98. To find probable cause in such a situation “would be to invite general warrants authorizing searches of any property owned, rented, or otherwise used by a criminal suspect—just the type of broad warrant the Fourth Amendment was designed to foreclose.” Id. at 1098 (emphasis in original).

In contrast, the Sixth Circuit in Libretti v. Woodson, 600 F. App'x 367 (6th Cir. 2015), upheld the validity of a search warrant for a safe-deposit box. There, investigators set out facts about a recent discovery of suspected contraband in the suspect's home, along with knowledge from prior investigations that the suspect regularly made use of safe-deposit boxes to hide proceeds of his operations and information that he had accessed the box on the same day that law enforcement had searched his home. Id. at 369. Additionally, the suspect had just been indicted for trafficking methamphetamine. Id. at 373.

Here, the affidavit included information that drugs, suspected drug proceeds, and firearms had just been found in Hill's home. This evidence demonstrated that Hill possessed illegal drugs and the instrumentalities of drug trafficking. But no facts in the affidavit draw any connection between the drug-trafficking and the safe-deposit box. Nowhere does the affidavit provide the kinds of facts in Libretti—i.e., that Hill “regularly made use of safe-deposit boxes to hide proceeds” and that he had “accessed the ․ safe-deposit box on the same day” of the search. While it may not be necessary in every case to marshal the exact quantum of proof that existed in Libretti to establish probable cause for the search of a safe-deposit box, the affidavit here is considerably less detailed.

In summary, Dluzynski's affidavit articulates that: (1) from experience, he knew that drug dealers often use legitimate bank accounts to “clean” and safeguard drug proceeds; (2) investigators had observed Hill engage in several suspected drug sales; (3) surveillance connected Hill to his home while he was going to and from suspected drug sales; (4) drugs, guns, and money were found in the home when officers executed a warrant there; (4) Hill had the key to the safe-deposit box on his key-ring when the search was executed; and (5) officers confirmed that Hill a had a bank account and safe-deposit box at Fifth Third Bank.

The affidavit lacks specific facts tying the safe-deposit box to any drug-trafficking activity, evidence, or proceeds. Dluzynski did not attest that Hill had recently visited the bank or accessed the safe-deposit box. The affidavit offers no facts beyond Dluzynski's training and experience to establish a link between the box and drug-trafficking. Even according the necessary deference to the issuing judge, these facts do not permit a reasonable inference that it is any more likely that Hill was using the safe-deposit box to hide drug-sale proceeds, fruits, or instrumentalities of drug trafficking than that he was using it for some legitimate purpose, such as to store family heirlooms.

While this conclusion means that the affidavit's facts were insufficient to establish probable cause that the safe-deposit box would contain evidence, the analysis does not end there. The Court must also address whether the good-faith exception applies in this instance.

The exclusionary rule typically precludes the government from using evidence obtained in violation of the Fourth Amendment against a victim of the unlawful search or seizure. See, e.g., Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Once a warrant is issued, however, there is generally “nothing more [a] policeman can do in seeking to comply with the law.” Leon, 468 U.S. at 921, 104 S.Ct. 3405 (quotations omitted). Accordingly, under the “good faith” exception, the exclusionary rule does not bar the use of evidence “obtained [by police acting] in objectively reasonable reliance on a subsequently invalidated search warrant.” Id. at 922, 104 S.Ct. 3405. The rationale behind the exception is that the exclusionary rule exists to deter the misconduct of police officers, not judges—so nothing is gained by punishing officers acting in reasonable reliance on the issuing judge's decision. United States v. Davis, 84 F.4th 672, 679-80 (6th Cir. 2023).

In determining whether the good-faith exception applies to a search authorized by a warrant, courts ask the question: Would a reasonably well-trained officer know that the search was illegal despite the magistrate judge's decision to approve the warrant application? United States v. White, 874 F.3d 490, 496 (6th Cir. 2017). Only if the answer to the question is “yes” is suppression appropriate, and the standard is an objective one. White, 874 F.3d at 496.

Instances in which reliance on a warrant is objectively unreasonable include situations in which the warrant application is “so lacking in factual support that the officer's belief in probable cause [is] entirely unreasonable or the affiant included information that he knew or should have known was false.” United States v. Ardd, 911 F.3d 348, 351 (6th Cir. 2018). But reliance on a warrant is generally considered to be reasonable if a reviewing court can discern some connection between the suspected criminal activity and the place to be searched—or if the affidavit is similar to one affirmed by prior precedent. See, e.g., United States v. Runyon, 792 F. App'x 379, 382 (6th Cir. 2019); White, 874 F.3d at 497-98. There must be daylight between an affidavit which simply does not establish the substantial basis necessary for issuance of a warrant and an affidavit which is “so lacking” that a reasonably well-trained officer would know not to rely on it for the good-faith exception to achieve its objective of striking a balance between safeguarding Fourth Amendment rights and facilitating the truth-seeking function of a criminal trial. White, 874 F.3d at 497-98.

In Schultz, the case discussed above where the Sixth Circuit determined that a warrant to search a safe-deposit failed to establish probable cause, the reviewing panel still upheld the search under the good-faith exception. 14 F.3d at 1098. Although it did not expressly articulate the reason that suppression was inappropriate, the panel noted that the officer who swore out the affidavit “certainly had probable cause to believe that Schultz committed a crime.” Id. It reasoned that, while the officer's training and experience “were not sufficient to establish a nexus between that crime and the safe deposit box[ ], the connection was not so remote as to trip on the ‘so lacking’ hurdle.” Id.

That same approach governs this case. While the Sixth Circuit has suggested after Schultz that the decision “stretch[ed] the limits of good faith,” see, e.g., United States v. Laughton, 409 F.3d 744, 750 (6th Cir. 2005), Dluzynski here had plenty of additional evidence not present in that case supporting the conclusion that he relied on the warrant in good faith. On the day he applied for the warrant, he had just uncovered substantial evidence of drug-trafficking in Hill's home. He knew that Hill kept the safe-deposit box key on the same keyring where Hill kept other keys that he used daily. Moreover, during his investigation of Hill, Dluzynski had applied to and received warrants from the same judge—including one to search Hill's home that was issued just the day before the safe-deposit box warrant. See United States v. Thomas, 852 F. App'x 189, 198 (6th Cir. 2021) (recognizing that, in evaluating whether an officer acted in good faith, a court may sometimes consider facts outside the four corners of an affidavit, including whether the same judge issued multiple warrants relating to the same investigation).

To be sure, a stronger link between the safe-deposit box and Hill's drug-trafficking activities might have been established by including additional information—for instance, information whether officers knew from their own observations, an informant, or the GPS tracker that Hill had recently visited the bank—especially if he did so after conducting a suspected drug sale. Such information may have been sufficient to establish probable cause. But, as explained above, whether probable cause exists and whether the good-faith exception applies are separate inquiries. And the Court cannot conclude, given the facts in this case, that Dluzynski's reliance on the warrant was objectively unreasonable. Suppressing evidence from the safe-deposit box therefore would not accomplish the goal of deterring future Fourth Amendment violations.

IV. CONCLUSION

For the reasons explained above, Hill's motion to suppress and his request for a Franks hearing are DENIED.

The Court sets this matter for trial to commence on February 13, 2024 at 9:00 a.m.⁴

IT IS SO ORDERED this 5th day of December, 2023.

FOOTNOTES

1.   The copy of the warrant application Hill attached as an exhibit to his motion contains some redactions. See ECF No. 27, PageID.131. The government submitted an unredacted copy at the hearing, which the Court has referred to in recounting the facts.

2.   The affidavit says the information was received in “May 2002,” but the incorrect year is an obvious typographical error. ECF No. 27, PageID.119.

3.   This affidavit repeats the same “May 2002” typographical error found in the affidavit for the search of the Marlowe address. ECF No. 27, PageID.140.

4.   The Court is cognizant that more than 30 days have elapsed between when this matter was argued, on July 17, 2023, and today's decision. Although neither party has raised any concerns regarding the Speedy Trial Act, that statute provides pursuant to 18 U.S.C. § 3161(h)(1)(D), that 30 days are excludable for the Court's consideration of a motion after a hearing. After that, for the period between August 16, 2023 until the new trial date set out in this Order, the Court finds that the ends of justice served by this delay outweigh Hill's and the public's interest in a speedy trial due to the complexity of the legal and factual questions raised in Hill'smotion to suppress. 18 U.S.C. § 3161(h)(7)(A). The necessity of spending sufficient time thoroughly evaluating these issues and reaching a correct legal conclusion clearly served the interests of justice. 18 U.S.C. § 3161(h)(7)(B)(i)-(iv). Accordingly, the Court finds that the time period between August 16, 2023 and the new trial date set out in this Order constitutes excludable delay.

TERRENCE G. BERG, United States District Judge