United States v. Frazier ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0378p.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. 04-5719
v.
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CHRISTOPHER FRAZIER, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 03-00030—Joseph H. McKinley, Jr., District Judge.
Argued: April 29, 2005
Decided and Filed: September 6, 2005
Before: SUHRHEINRICH, BATCHELDER, and GIBSON, Circuit Judges.*
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COUNSEL
ARGUED: Jennifer S. Roach, THOMPSON HINE, Cleveland, Ohio, for Appellant. Terry M.
Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Jennifer S. Roach, Thomas L. Feher, THOMPSON HINE, Cleveland, Ohio, for
Appellant. Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS,
Louisville, Kentucky, for Appellee.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. Defendant-Appellant Christopher Frazier
appeals the district court’s denial of his motion to suppress evidence obtained during a search of his
residence at 115 South Jeffries Street, Morganfield, Kentucky. Alternatively, Frazier argues that
we should remand this case to the district court, with instructions to hold an evidentiary hearing to
determine whether the affidavit supporting the search warrant for his home contained knowing and
reckless falsehoods, and that we should grant him a new trial because his counsel was
constitutionally ineffective. Because we conclude that the district court did not err in applying the
good faith exception set out in United States v. Leon, 468 U.S. 897 (1984), we will AFFIRM the
*
The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
1
No. 04-5719 United States v. Frazier Page 2
district court’s order denying Frazier’s motion to suppress. Further, we will DENY his request for
an evidentiary hearing, and dismiss without prejudice his claim of ineffective assistance of counsel.
I.
In late 1999, numerous police agencies, including the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”), began receiving information that an informal organization of about 25
people, led by Frazier, was dealing drugs in the Dunbar Heights Apartments, a federal housing
project in Morganfield. In October of 2002, a confidential informant, “CI-178,” volunteered to
provide the authorities with information on Frazier’s organization and began making “controlled
buys” of drugs under the supervision of ATF Special Agent Kirk Steward. Because CI-178 wore
a “wire” during some of the buys, the ATF was able to record what was said during two of the
transactions. On one such occasion, CI-178 met with Czaja McGuire, who is alleged to be a member
of Frazier’s conspiracy, to purchase crack cocaine. CI-178 accompanied McGuire to Frazier’s
residence, which at that point was at 759 Culver Court in the housing project, where McGuire
obtained a quantity of crack cocaine. After they left Frazier’s residence, CI-178 purchased 3.7
grams of crack cocaine from McGuire. The second recorded transaction occurred on December 12,
2002, when CI-178 went to Frazier’s Culver Court residence to purchase crack cocaine. Once
inside, Frazier arranged for CI-178 to buy drugs from James Harris, another member of Frazier’s
organization.
On July 10, 2003, seeking six search warrants relating to Frazier’s drug conspiracy, Agent
Steward presented to United States Magistrate Judge Robert Goebel six warrant affidavits, the last
of which was in support of a warrant to search Frazier’s current home on Jeffries Street. This
affidavit describes the details of Frazier’s criminal enterprise and recounts the report of an
anonymous cooperating witness, “CW-1,” who had seen Frazier selling drugs out of the housing
project in Morganfield. The Frazier affidavit also described the McGuire and Harris transactions,
but did not specify that these were controlled buys that were caught on tape. The affidavit further
states that CI-178 had acted1 as a “middle man” during a drug transaction between Frazier and an
unidentified Hispanic male at Frazier’s Culver Court residence. Paragraph nine of the Frazier
affidavit says that Frazier was evicted from the Culver Court residence in May 2003, and that shortly
thereafter, housing authorities found drugs in that residence while cleaning it. The affidavit also
states that Sheriff’s Deputy Jason Corbitt relayed to Agent Steward the statement of Patrick Black,
a Frazier associate arrested in a seemingly unrelated investigation, that Black had been regularly
purchasing about two pounds of marijuana each week from Frazier in the neighboring town of
Owensboro, Kentucky. The affidavit also reports that Agent Steward had obtained Frazier’s
telephone records, which revealed that he was in “constant contact with known drug dealers” and
that officers doing surveillance of Frazier’s Jeffries Street residence saw him coming and going in
an expensive vehicle.
After reviewing the five affidavits submitted before the Frazier affidavit, the magistrate judge
advised Agent Steward that the affidavits should be revised to include the information that CI-178
had taped two of the controlled buys. Agent Steward made that revision to each of the first five
affidavits but inexplicably—and unintentionally—did not supplement the Frazier affidavit. On
reviewing the Frazier affidavit, the magistrate, who did not realize that it did not contain the
information about the taped buys, instructed Agent Steward to “strengthen” paragraph 17, which
cited Sixth Circuit cases in support of the proposition that “a search warrant may be properly issued
against a suspected drug dealer’s residence despite the lack of direct evidence of criminal activity
at the residence.” Agent Steward added a citation to United States v. Jones, 159 F.3d 969 (6th Cir.
1998) (“in the case of drug dealers, evidence is likely to be found where the dealers live”) but made
1
Because this was an impromptu transaction, CI-178 was not able to record it.
No. 04-5719 United States v. Frazier Page 3
no further changes to the affidavit. Hence, the final draft of the Frazier affidavit describes the
McGuire and Harris transactions, but does not specify that CI-178 was wearing a wire and recorded
them. Apparently unaware that Agent Steward had not made all of the requested changes, the
magistrate judge issued a warrant to search Frazier’s house, which ultimately resulted in the seizure
of marijuana and firearms.
Reserving his right to appeal the district court’s denial of his motion to suppress evidence
pursuant to FED R. CRIM. P. 11(a)(2), Frazier pled guilty to possessing marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and possessing firearms in furtherance
of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(a). Frazier moved to suppress the evidence
seized from his house on the ground that the warrant was not supported by probable cause. The
district court initially agreed and, relying exclusively on the information contained in the four
corners of the warrant affidavit, held that the warrant could not be saved under the “good faith”
exception to the exclusionary rule that was announced in United States v. Leon, 468 U.S. 897 (1984).
The United States moved to reconsider, arguing that the court should consider facts known by Agent
Steward, which did not appear in the affidavit, as evidence of Agent Steward’s good faith. After an
evidentiary hearing in which Agent Steward testified that he provided to the issuing magistrate the
information that CI-178 had taped two drug transactions in which Frazier had participated, the
district court denied Frazier’s motion to suppress because Agent Steward relied in good faith on a
deficient search warrant. Frazier timely appealed.
II.
The United States argues that we should affirm the district court because the affidavit
established that there was probable cause to search Frazier’s home. In appeals from a district court’s
ruling on a motion to suppress evidence, we review the trial court’s factual findings for clear error
and its legal conclusions de novo. United States v. Combs, 369 F.3d 925, 937 (6th Cir. 2004). A
finding of probable cause is a legal conclusion that we review de novo. United States v. Padro, 52
F.3d 120, 122 (6th Cir. 1995). The evidence must be viewed in a light most likely to support the
decision of the district court. United States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001).
The Fourth Amendment states that “no warrants shall issue but upon probable cause,
supported by oath or affirmation . . . .” U.S. Const. amend. IV. To demonstrate probable cause to
justify the issuance of a search warrant, an affidavit must contain facts that indicate “a fair
probability that evidence of a crime will be located on the premises of the proposed search.” United
States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (quoting United States v. Bowling, 900 F.2d 926,
930 (6th Cir. 1990)). This conclusion depends on the totality of the circumstances. Illinois v. Gates,
462 U.S. 213, 230 (1983). The probable cause standard is a “practical, non-technical conception”
that deals with the “factual and practical considerations of everyday life.” Id. at 231. Because our
review of the sufficiency of the evidence supporting probable cause is limited to the information
presented in the four-corners of the affidavit, Whiteley v. Warden, Wyoming State Penitentiary, 401
U.S. 560, 565 n.8 (1971); Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964) abrogated on other
grounds by Gates, 462 U.S. at 238; United States v. Hatcher, 473 F.2d 321, 324 (6th Cir. 1973), we2
may not consider in this analysis Agent Steward’s testimony that CI-178 recorded the transactions.
2
The United States argues that paragraph two of the affidavit, which says “[s]ince opening this investigation,
February 22, 2002, ATF and Union County Sheriff’s Department have used Confidential Informants to conduct
numerous drug and firearm(s) transactions with approximately 17 people which [sic] have been identified as prominent
members of the FRAZIER SYNDICATE,” indicates that the CI-178 recorded the two transactions that Frazier was
involved in. Because CI-178 actually recorded some of the transactions mentioned in the affidavit, but not others, we
decline to draw this inference.
No. 04-5719 United States v. Frazier Page 4
The bulk of the information contained in the Frazier affidavit comes from confidential
sources: CW-1 and CI-178. When confronted with hearsay information from a confidential
informant, “a court must consider the veracity, reliability, and the basis of knowledge for that
information as part of the totality of the circumstances for evaluating the impact of that information
. . . .” United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). While independent corroboration
of a confidential informant’s story is not a sine qua non to a finding of probable cause, United States
v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005), in the absence of any indicia of the informants’
reliability, courts insist that the affidavit contain substantial independent police corroboration.
United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004); Allen, 211 F.3d at 976; United States
v. Smith, 182 F.3d 473, 483 (6th Cir. 1999) (“[i]f the prior track record of an informant adequately
substantiates his credibility, other indicia of reliability are not necessarily required”); United States
v. Leake, 998 F.2d 1359, 1365 (6th Cir. 1993). The Frazier affidavit contains no facts supporting
the confidential informants’ reliability. There are no averments about the reliability of the
information provided by the anonymous informants in the past, there are no averments about the
length of the relationship between Agent Steward and the confidential informants, and there is no
suggestion that Agent Steward disclosed the informants’ true identities to the issuing magistrate.
Nor does the affidavit contain evidence that Agent Steward corroborated the information that
the informants provided. Agent Steward observed Frazier coming and going from his residence on
Jeffries Street in a Lincoln Navigator and a subsequent search of his telephone records revealed that
he was “in constant contact with known drug dealers.” Viewing the evidence in a light most likely
to support the decision of the district court, this information is insufficient to corroborate the
confidential informants’ statements.
What is more, neither CW-1, CI-178 nor Patrick Black witnessed Frazier dealing drugs from
his Jeffries Street residence, the premises specified in the search warrant.3 There must be “a nexus
between the place to be searched and the evidence to be sought.” United States v. Carpenter, 360
F.3d 591, 594 (6th Cir. 2004) (en banc) (quotation omitted). “The critical element in a reasonable
search is not that the owner of property is suspected of crime but that there is reasonable cause to
believe that the specific ‘things’ to be searched for and seized are located on the property to which
entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). In support of its argument
that there is probable cause to believe that drugs would be found at Frazier’s Jeffries Street
residence, the United States relies on a series of cases which hold that an informant’s observation
of drug trafficking outside of the dealer’s home can provide probable cause to search the dealer’s
house. See United States v. Miggins, 302 F.3d 384, 383-94 (6th Cir. 2002); United States v. Blair,
214 F.3d 690, 696 (6th Cir. 2000); United States v. Jones, 159 F.3d 969, 974 (6th Cir. 1998); United
States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996). None of these cases, however, supports the
proposition that the defendant’s status as a drug dealer, standing alone, gives rise to a fair probability
that drugs will be found in his home. Where, as here, the warrant affidavit is based almost
exclusively on the uncorroborated testimony of unproven confidential informants (none of whom
witnessed illegal activity on the premises of the proposed search), the allegation that the defendant
is a drug dealer, without more, is insufficient to tie the alleged criminal activity to the defendant’s
residence. See United States v. Savoca, 761 F.2d 292, 295 (6th Cir. 1985) (the inference that bank
robbers tend to conceal evidence in motel rooms, standing alone, is insufficient to support the search
of two bank robbers’ hotel room). For the foregoing reasons, we conclude that the district court did
not err when it concluded that the information contained in the Frazier Affidavit did not support a
finding of probable cause to search Frazier’s residence.
3
We note that the information provided by Black is not particularly reliable inasmuch as it is based on multiple
levels of hearsay.
No. 04-5719 United States v. Frazier Page 5
Though evidence obtained in violation of the Fourth Amendment is generally excluded, the
Supreme Court has held that the exclusionary rule “should be modified so as not to bar the
admission of evidence seized in reasonable, good-faith reliance on a search warrant that is
subsequently held to be defective.” United States v. Leon, 468 U.S. 897, 905 (1984). The “good
faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained
officer would have known that the search was illegal despite the magistrate’s authorization. In
making this determination, all of the circumstances . . . may be considered.” Id. at 922-23 n.23.
“[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a
warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted
in good faith in conducting the search.” Id. at 922 (internal quotations omitted). Leon’s good faith
exception does not apply in the following sets of circumstances: 1) the supporting affidavit
contained knowing or reckless falsity; 2) the issuing magistrate wholly abandoned his or her judicial
role; 3) the affidavit is “so lacking in probable cause as to render official belief in its existence
entirely unreasonable;” or 4) where the officer’s reliance on the warrant was neither in good faith
nor objectively reasonable. Id. at 923. Whether Leon’s good faith exception applies is a legal
conclusion that we review de novo. United States v. Van Shutters, 163 F.3d 331, 336 (6th Cir.
1998).
Leon’s exception is predicated on the idea that the purpose of the exclusionary rule, which
is to deter police misconduct, will not be served by excluding evidence seized by an officer acting
in good faith. Id. at 916. The exclusion of evidence will have no deterrent effect if it does not alter
the behavior of individual law enforcement officers or the policies of their departments. Id. at 918.
Frazier argues that the second and third exceptions to Leon’s good faith rule apply. We will
consider in turn whether the affidavit is so lacking in probable cause as to render official belief in
its existence entirely unreasonable and whether the issuing magistrate wholly abandoned his judicial
role.
A. Whether the affidavit is so lacking in probable cause as to render official belief
in its existence entirely unreasonable.
At the outset we address Frazier’s reliance on United States v. Laughton, 409 F.3d 744, 752
(6th Cir. 2005) in support of his contention that a court’s analysis of whether an officer acted in good
faith is confined to evidence contained within the four corners of the warrant affidavit. The
defendant in Laughton sought to suppress evidence obtained from his home by officers acting
pursuant to a search warrant. In denying Laughton’s motion to suppress on the ground that the
executing officer relied in good faith on a defective search warrant, the district court looked to
information known to the officer but not included in the affidavit. Id. at 751. We reversed and held
that “the good faith exception to the exclusionary rule does not permit consideration of information
known to a police officer, but not included in the affidavit, in determining whether an objectively
reasonable officer would have relied on the warrant.” Id. at 752.
Because the Supreme Court has, in the past, looked beyond the four corners of the warrant
affidavit in assessing an officer’s good faith, we do not read Laughton as prohibiting a court in all
circumstances from considering evidence not included in the affidavit. The Leon Court itself held
that a court may look beyond the four corners of the affidavit: “our good-faith inquiry is confined
to the objectively ascertainable question whether a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s authorization. In making this
determination, all of the circumstances—including whether the warrant application had previously
been rejected by a different magistrate—may be considered.” Leon, 468 U.S. at 923 n.23 (emphasis
added). A court considering the fact that the warrant application had previously been rejected would
necessarily have to look beyond the four corners of the document (assuming, of course, that the
affidavit did not advertise the earlier rejection). The Court also looked beyond the affidavit in
No. 04-5719 United States v. Frazier Page 6
Massachusetts v. Sheppard, 468 U.S. 981 (1984). In that case, a detective investigating a homicide
sought a warrant to search a suspect’s residence for the murder weapon and pieces of the victim’s
clothing. Id. at 984-85. After preparing an affidavit, the detective sought a warrant application
form, but, because the local court was closed, was able to locate only a form entitled “Search
Warrant– Controlled Substance.” Id. at 985. The detective delivered the affidavit and application
to the magistrate and explained that they needed to be amended to omit the reference to “controlled
substance” and to indicate that the warrant application, when signed, would constitute the warrant
itself. Id. The magistrate, who informed the detective that he would make the necessary changes,
authorized the search without making either change. Id. at 986. The Supreme Court held that, given
the magistrate’s assurances, a reasonable officer would have concluded that the warrant validly
authorized a search despite the fact that key amendments were never made. Id. at 989.4
In view of the foregoing precedents, we interpret Laughton’s holding as limited to answering
the question that this court, sitting en banc, explicitly left open in Carpenter: “whether the search
could have been saved under the ‘good faith exception’ on the basis that the officers had other
information that was not presented to the issuing magistrate, but that would have established
probable cause.” 360 F.3d at 597. Indeed, Laughton explained that “a decision on the issue [left
unanswered in Carpenter] can no longer be postponed.” 409 F.3d at 751. Laughton, as we have
already indicated, holds that “the good faith exception to the exclusionary rule does not permit
consideration of information known to a police officer, but not included in the affidavit, in
determining whether an objectively reasonable officer would have relied on the warrant.” Laughton,
409 F.3d at 752. That case gives no indication that the officer who applied for the search warrant
provided the issuing magistrate with the information omitted from the affidavit. Because Agent
Steward told Magistrate Judge Goebel that CI-178 had recorded Frazier’s participation in two drug
deals—and, indeed, had included and sworn to this information in five related warrant affidavits
presented contemporaneously to the magistrate judge—the case at bar is factually distinguishable
from Laughton.
We refuse to confine our good faith inquiry to those facts that Agent Steward included in the
Frazier affidavit because to do so would not serve the purposes of the exclusionary rule, and
specifically, would have no deterrent effect on future police misconduct. The issue of whether
evidence should be excluded is discrete from the question of whether the Fourth Amendment rights
of the party seeking exclusion were violated. Gates, 462 U.S. at 223. “As with any remedial device,
the [exclusionary] rule’s application has been restricted to those instances where its remedial
objectives are thought most efficaciously served. Where the exclusionary rule does not result in
appreciable deterrence, then, clearly, its use . . . is unwarranted.” Arizona v. Evans, 514 U.S. 1, 11
(1995) (internal quotations and citations omitted). The record in this case does not support the
conclusion that Agent Steward’s failure to supplement the Frazier affidavit amounts to anything
more than a scrivener’s error (especially when one considers that Agent Steward properly amended
the other five related affidavits). Punishing Agent Stewart for such a ministerial oversight would
have no foreseeable deterrent effect on future police misconduct.
In fact, we are unable to envision any scenario in which a rule excluding from the Leon
analysis information known to the officer and revealed to the magistrate would deter police
misconduct. Leon only comes into play when an officer has a warrant, albeit a defective one.
Because a judge’s initial probable cause determination is limited to the four corners of the affidavit,
4
We note that this court’s decision in United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996), which was
cited in Laughton, does not preclude a court from looking outside of the affidavit while analyzing an officer’s good faith.
Though Weaver did state that “[i]n determining whether an affidavit is ‘bare bones,’ the reviewing court is concerned
exclusively with the statements contained in the affidavit itself,” it announced this rule in the context of its analysis of
whether the affidavit itself contained probable cause. Weaver did not hold that a court is limited to the four corners of
the affidavit for the purposes of the Leon analysis.
No. 04-5719 United States v. Frazier Page 7
Hatcher, 473 F.2d at 324, an officer has no incentive to exclude from the affidavit information that
supports a finding of probable cause only to reveal this information to the magistrate by parol. If
the affidavit is not sufficient to support a finding of probable cause, the officer is unlikely to get a
search warrant, and if the officer does not get a search warrant, he may not rely on Leon. Any
deterrent—even the exclusionary rule—is wholly unnecessary in the absence of an incentive to
engage in undesirable behavior. See Elkins v. United States, 364 U.S. 206, 217 (1960) (“[the
exclusionary rule’s] purpose is to deter—to compel respect for the constitutional guarantee in the
only effectively available way—by removing the incentive to disregard it”). Accordingly, we hold
that a court reviewing an officer’s good faith under Leon may look beyond the four corners of the
warrant affidavit to information that was known to the officer and revealed to the issuing magistrate.
See United States v. Martin, 297 F.3d 1308, 1318 (11th Cir. 2002) (“we find that we can look
beyond the four corners of the affidavit and search warrant to determine whether [the executing
officer] reasonably relied upon the warrant”); United States v. Marion, 238 F.3d 965, 969 (8th Cir.
2001) (“[w]hen assessing the objective [reasonableness] of police officers executing a warrant, we
must look to the totality of the circumstances, including any information known to the officers but
not presented to the issuing judge.”) (quotation omitted). United States v. Procopio, 88 F.3d 21, 28
(1st Cir. 1996) (looking beyond the four corners of the affidavit in assessing an officer’s good faith);
United States v. Dickerson, 975 F.2d 1245, 1250 (7th Cir. 1992) (same).
Considering that CI-178 recorded Frazier’s participation in two drug transactions, we
conclude that the affidavit was not so lacking in probable cause as to render official belief in its
existence unreasonable. The question of whether Agent Steward’s reliance on the warrant was
objectively reasonable turns on “whether a reasonably well-trained officer would have known that
the search was illegal despite the magistrate’s authorization.” Weaver, 99 F.3d at1380 (quotation
omitted). This requires a “less demanding showing than the ‘substantial basis’ threshold required
to prove the existence of probable cause in the first place.” Carpenter, 360 F.3d at 595 (quotation
omitted). The addition of the fact that CI-178 recorded two of the conversations provides the
element missing in the probable cause analysis: the veracity of the informant. Martin, 297 F.3d at
1314 (“[w]hen there is sufficient independent corroboration of an informant’s information, there is
no need to establish the veracity of the informant”) (quoting United States v. Danhauer, 229 F.3d
1002, 1006 (10th Cir. 2000)). The transactions that CI-178 recorded, in addition to the information
included in the affidavit, provide a reliable basis upon which to conclude that Frazier is a drug
dealer.
We think as well that the affidavit establishes a sufficiently strong nexus between Frazier’s
alleged drug dealing and his home. An officer’s belief that there is a sufficient nexus between the
suspected crime and the place to be searched is unreasonable when evidence in the affidavit
connecting the crime to the residence is “so vague as to be conclusory or meaningless.” See
Carpenter, 360 F.3d at 596 (citing United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993)). “We
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 . . . even if the
information provided was not enough to establish probable cause.” Carpenter, 360 F.3d at 596
(officer’s good faith reliance on a warrant to search a residence was reasonable when the affidavit
merely stated that a road connected it to a nearby marijuana field). For example, we held in Van
Shutters, 163 F.3d at 336, that an officer relied in good faith on a warrant where the affidavit
described the residence and the suspect’s criminal scheme but connected the place to the illegal
activity only by stating that the residence “was available” to the suspect. In United States v. Schultz,
14 F.3d 1093, 1098 (6th Cir. 1994) we held that an officer reasonably relied on a warrant authorizing
the search of a bank safety deposit box where the affidavit underlying the warrant connected the box
and the defendant’s drug trafficking only by stating that the officer’s training and experience led him
to believe that evidence would be located there. And in Savoca, we held that, in light of a Sixth
Circuit case which says that bank robbers often conceal evidence of their crimes in public and
private places, an officer’s reliance on a warrant to search a hotel room was reasonable when
No. 04-5719 United States v. Frazier Page 8
affidavit underlying the warrant connected the hotel room to a bank robbery only by stating that the
robbers were seen in the room on two prior occasions. 761 F.2d at 297-98.
The Frazier affidavit creates at least as strong a connection between the place to be searched
and the evidence to be sought as the affidavits at issue in the foregoing cases. Paragraph nine of the
Frazier affidavit states that the Morganfield Heights Housing Authority found drugs in Frazier’s
former residence on Culver Court shortly after he moved out. A reasonably well-trained officer
could infer that a drug dealer who kept drugs in his former home would also keep drugs in his
current home. Indeed, Agent Steward averred, based on his training and experience, that drug
dealers usually continue their trade after moving to a new residence (paragraph 18), and that people
who sell drugs often keep drugs and guns in their homes (paragraph 19). The inference that drugs
would be found in Frazier’s new residence is all the more reasonable when considered in light of
the Sixth Circuit cases cited in the affidavit, which stand for the proposition that, “in the case of drug
dealers, evidence is likely to be found where dealers reside.” And we think that Agent Steward’s
reliance on this proposition was particularly reasonable because the issuing magistrate returned the
affidavit with instructions to add citations to additional authority supporting it. We hold that the
Frazier affidavit was not so lacking in probable cause as to render official belief in its existence
entirely unreasonable.
B. Whether Leon’s good faith exception is inapplicable because the issuing
magistrate wholly abandoned his judicial role.
Frazier also argues that Agent Steward could not have relied in good faith on the warrant
because the issuing magistrate wholly abandoned his judicial role “by not reading the warrant
application and basing issuance of the warrant on unsworn testimony.” A “neutral and detached
magistrate” must review a search warrant before it can be executed.” Coolidge v. New Hampshire,
403 U.S. 443, 450 (1971). In determining whether a warrant is supported by probable cause, “the
courts must . . . insist that the magistrate purport to perform his neutral and detached function and
not serve merely as a rubber stamp for the police.” Leon, 468 U.S. at 914 (quotation omitted). The
defendant carries the burden of proving that the issuing magistrate acted as a rubber stamp. United
States v. Rodriguez-Suazo, 346 F.3d 637, 649 (6th Cir. 2003).
Though the issuing magistrate did not notice that Agent Steward failed to comply with his
request to specify that CI-178 had recorded two drug transactions, the record does not support
Frazier’s claim that the magistrate issued the warrant without reading the affidavit. In fact, we know
that the issuing magistrate read the affidavit at least twice. After Agent Steward resubmitted the
affidavit (without including information about CI-178's role in the case), the magistrate reviewed
it and returned it with instructions to “strengthen” paragraph 17, which cited Sixth Circuit case law
in support of the proposition that a warrant may issue to search a drug dealer’s residence despite a
lack of direct evidence connecting the drug enterprise to the residence. Based on his conversation
with Agent Steward, the magistrate also asked him to add what became paragraph 18, in which
Agent Steward avers that, based on his training, drug dealers continue their trade after moving to
a new residence. Agent Steward testified that after he supplemented paragraphs 17 and 18 and
resubmitted the affidavit, the magistrate “looked it over again” and affixed his name to the search
warrant. This evidence demonstrates that the magistrate not only reviewed the affidavit, but did so
with a critical eye.
Even less does the record support Frazier’s claim that the magistrate abandoned his judicial
role by relying on unsworn testimony. It is true that Agent Steward did not swear in the Frazier
affidavit that CI-178 taped two of the drug buys. He did, however, swear to that fact in the five
related affidavits contemporaneously presented to the magistrate judge. While it was technically
improper for the magistrate judge to rely on that testimony for the Frazier warrant, that reliance does
not preclude the application of Leon’s good faith exception. “The exclusionary rule is designed to
No. 04-5719 United States v. Frazier Page 9
prevent police, not magistrate, misconduct . . . .” Rodriguez-Suazo, 346 F.3d at 649. Because “there
exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth
Amendment,” any procedural errors committed by the issuing magistrate are irrelevant to the
executing officer’s good faith in cases where the defendant has failed to show that the magistrate
abandoned his judicial role. Leon, 468 U.S. at 916. Frazier has failed to prove that the issuing
magistrate acted as a rubber stamp.
III.
Alternatively, Frazier asks us to remand his case with instructions for the district court to
hold an evidentiary hearing in order to prove that knowing or reckless falsities negating good faith
are contained in the affidavit supporting the search of his home. Under Franks v. Delaware, 438
U.S. 154 (1978), a defendant is entitled to an evidentiary hearing on the veracity of the statements
in the affidavit only if 1) there is a substantial preliminary showing that specified portions of the
affiant’s averments are deliberately or recklessly false and 2) a finding of probable cause would not
be supported by the remaining content of the affidavit when the allegedly false material is set aside.
United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir. 1997). Frazier argues that paragraphs 9 and
13 contain averments that are deliberately and recklessly false. We conclude that neither paragraph
contains false information that would entitle Frazier to a Franks hearing.
Paragraph 9 says, in its entirety,
On May 1, 2003, ATF Special Agent Kirk Steward was contacted by Morganfield
Police Officer Jeff Hart concerning seizure of approximately 20.4 grams of cocaine
from the apartment, 759 Culver Court located in the Morganfield Heights Housing
Authority in Morganfield, Kentucky, of Chris FRAZIER. On May 5, 2003 the
Morganfield Height[s] Housing Authority evicted FRAZIER from his apartment.
Sometime on the morning of May 6, 2003, employees of the Morganfield Heights
Housing Authority were cleaning FRAZIER’S apartment in order to get it ready for
another tenant when they discovered a white powder substance in a plastic baggie.
Morganfield Police and Union County Sheriff Officer’s [sic] were dispatched to
FRAZIER’S apartment. Upon seizing the white substance, Union County Sheriff’s
Deputy Jason Corbitt conducted a narcotic field test of the cocaine. The test resulted
in a positive indication for cocaine.
Frazier argues that he has made a substantial preliminary showing that paragraph 9 contains
deliberately or recklessly false averments because it does not accurately state the date that he moved
out of his apartment. Paragraph 9 certainly contains errors. Agent Steward could not have been told
on May 1, 2003, about a May 6, 2003, cocaine seizure. But the record does not support the
conclusion that the falsehoods contained in paragraph 9 are anything more than typographical errors.
A defendant cannot demonstrate entitlement to a Franks hearing by merely identifying typographical
errors in the affidavit. In any event, no prejudice ensued from any errors that Agent Steward made
concerning the date of Frazier’s eviction because paragraph 9 makes it clear that he was not living
in the Culver Court residence when the drugs were found.
Frazier also takes issue with paragraph 13 of the affidavit, which states that the Kentucky
State Police were unable to muster enough officers to search Frazier’s home, despite their suspicion
that he was a drug dealer. Frazier argues that he is entitled to a Franks hearing to explore the
“unlikelihood that Kentucky State Police could not get a search warrant due to ‘man power issues
and priorities to other investigations.’” Because Frazier’s argument merely speculates that the
Kentucky State Police had the manpower to execute the warrant, he has failed to make a substantial
preliminary showing that paragraph 13 contains a deliberately or recklessly false averment. Finding
No. 04-5719 United States v. Frazier Page 10
no basis upon which to remand his case with instructions to hold a Franks hearing, we deny the
request for remand.
IV.
Finally, Frazier argues that his “trial counsel’s failure to investigate allegedly false
statements in the affidavit in support of the search warrant and to reassert the motion for an
evidentiary hearing constitute ineffective assistance of counsel.” We generally do not rule on
ineffective assistance of counsel claims raised for the first time on direct review. United States v.
Garcia-Meza, 315 F.3d 683, 687 (6th Cir. 2003). An exception to this general rule exists when the
record is adequately developed to allow the reviewing court to assess the merits of the appellant’s
Strickland claim. United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000). This is not such a case.
V.
For the foregoing reasons, we AFFIRM the district court’s order denying Frazier’s motion
to suppress; we DENY his request for a remand; and we DISMISS without prejudice his claim of
ineffective assistance of counsel.