Sixth Circuit Suppresses Evidence Obtained as a Result of Warrant That Lacked Probable Cause of Criminal Activity in Arson Investigation
by Anthony W Accurso
The U.S. Court of Appeals for the Sixth Circuit required suppression of evidence based upon a warrant for evidence related to a structure fire where the government failed to establish probable cause to believe the fire was caused by arson or otherwise the result of criminal activity.
The Lexington, Kentucky, Fire Department sent Chris O’Bryan to investigate a structure fire at 428 Douglas Avenue. The fire consumed a portion of an unattached shed but did not spread to the vacant house on the property.
O’Bryan interviewed nearby residents and the non-resident owner who said “the word out there is that somebody pulled up in a vehicle and was … seen removing things out of the shed just prior to the fire.”
He also noticed the residence at 430 Douglas Avenue had security cameras that may have captured video of the shed at the time of the fire. O’Bryan made contact with Quincino Waide, the owner of 430 and occupant of Apt. 3, who allegedly smelled of “what [O’Bryan] thought was marijuana.” When asked about the DVR for the security cameras, Waide declined to share them.
Despite there being no reliable evidence to establish probable cause to believe that the fire was the result of criminal activity, O’Bryan obtained a warrant for the DVR (“DVR warrant”) and asked the Lexington Police Department to assist with executing it. The group included narcotics officers Jared Curtsinger and Matthew Evans. O’Bryan also shared his suspicion that “there might be illegal narcotic activity occurring at the residence.”
When officers arrived to execute the warrant, Waide’s mother – who lived in Apt. 1 – informed officers that Waide was out, but she was able to summon him back to the home.
Upon his arrival, the officers signaled their intent to enter the apartment to serve the warrant. Waide offered instead to surrender the recordings from the DVR. Curtsinger then advised him they would be entering anyway and inquired about drugs in the apartment. Waide admitted “there may be a little marijuana.” Officers eventually entered the apartment and found a significant quantity of drugs as well as a firearm.
Waide was charged with multiple drug and firearms offenses. He filed motions to suppress the DVR warrant and all evidence obtained subsequent to it for failing to link the fire to criminal activity, but the U.S. District Court for the Eastern District of Kentucky denied them. Waide accepted a conditional plea, received a 180-month prison sentence, and timely appealed, focusing on the DVR warrant.
The Court began its analysis by clarifying that although it may seem as though Waide “is afforded some protection because he was never suspected of having been involved in the shed fire…. That is not so.” See Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (holding that the Fourth Amendment does not prohibit the issuance of search warrants merely because the possessor of the property is not suspected of criminal involvement). The Court explained that in situations where the government is not seeking to seize “persons” but rather “things” for which there is probable cause to believe are located at the place to be searched, “there is no apparent basis in the language of the [Fourth] Amendment for also imposing the requirements for a valid arrest – probable cause to believe that the third party is implicated in the crime.” Id.
Consequently, the sole focus of the inquiry was whether probable cause existed to believe that a crime had been committed in connection with the shed fire to serve as the basis for issuing the DVR warrant. The Court stated that establishing probable cause for a search warrant requires the affidavit to show two things: “first, that the items sought are ‘seizable’ by virtue of being connected with criminal activity; and second, ‘that the items will be found in the place to be searched.’” United States v. Abernathy, 843 F.3d 243 (6th Cir 2016) (quoting United States v. Church, 823 F.3d 351 (6th Cir. 2016)).
“The only information contained in the warrant affidavit that is proffered to support a finding of probable cause,” wrote the Court, “is the statement of an unidentified person made to the unidentified property owner, and then communicated second-hand to O’Bryan, regarding an unknown person entering the property and removing items from the shed around the unspecified time of the fire.”
“In the absence of any indicia of the informants’ reliability, courts insist that the affidavit contains substantial independent police corroboration.” United States v. Frazier, 423 F.3d 526 (6th Cir 2005).
The affidavit O’Bryan used to obtain the warrant contained “a minimum of two levels of hearsay” and failed to present “evidence that [O’Bryan] corroborated – or even attempted to corroborate – the information that the informants provided,” wrote the Court.
The Court noted that the Supreme Court has been unequivocal in its insistence that “to secure a warrant to investigate the cause of a fire, an official must show more than the bare fact that a fire has occurred.” Michigan v. Tyler, 436 US 499 (1978).
Courts are required to suppress evidence that is directly or indirectly “the tainted fruit of unlawful government conduct.” Nix v. Williams, 467 US 431 (1984).
The Government argued that Waide admitted to criminal conduct before the unlawful warrant was executed, but the Court rejected this argument, stating “we see no reason why the fruit-of-the-poisonous-tree doctrine should not also serve to exclude evidence obtained by an official declaring his intent to act upon an unlawful warrant.” That is because, “when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.”
The Government claimed several other exceptions to the warrant requirement, but the Court summarily rejected them. First, the Court explained that the attenuation doctrine did not apply because the development of evidence to enter the apartment – Waide’s admission to possessing marijuana – only occurred immediately after Curtsinger announced the officers’ intention to enter the residence regardless of Waide’s consent.
Similarly, there was nothing inevitable about the discovery of evidence in the apartment, according to the Court. “[A]lthough the narcotics unit might have previously shown interest in Waide, the unit’s participation in the execution of the DVR warrant meant that its investigation was neither independent nor untainted by that warrant,” the Court reasoned.
Finally, the Court stated that the good faith exception did not apply because the “affidavit [was] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 US 897 (1984).
Thus, the Court concluded that the DVR warrant was unlawful, and all evidence obtained after police arrived to execute it was obtained in violation of Waide’s substantial rights.
Accordingly, the Court ordered his convictions reversed and the suppression of the unlawfully collected evidence. See: United States v. Waide, 60 F.4th 327 (6th Cir. 2023).
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