United States of America v. Michael White, Jr.

Cincinnati, Ohio - Criminal defense lawyer represented defendant charged with being a felon in possession of a firearm.

Muskegon County Detective T. Schmidt investigated illegal drug trafficking in western

Michigan as an undercover agent. While in a car with a suspected drug dealer named Jared

Conkle in early December 2019, Schmidt asked to buy some cocaine. Conkle knew where to go.

He told Schmidt to "park in the rear” of a house that belonged to Michael White, whom he

described as an "acquaintance.” R.15-1 at 2. Schmidt watched Conkle exit the car, walk into

White's house, and reemerge, after which Conkle handed Schmidt three grams of cocaine.

A similar sequence repeated itself about forty days later. Schmidt approached Conkle

and again asked him where he could buy cocaine. Conkle again took him to White's house.

Rather than direct Schmidt to the rear of White's house, Conkle told Schmidt to follow him to a

nearby alley. Schmidt handed Conkle some pre-marked cash, and Conkle drove by himself to

White's house. Another detective watched as Conkle approached the house, exited his car, and

entered through the back. Conkle reemerged, got back into his car, and traveled back to

Schmidt, where he completed the sale.

Believing that White kept drugs inside his house for distribution, Schmidt applied for a

search warrant within 48 hours of Conkle's second purchase. He gave the above account, then

explained that, "based on [his] training and experience” of seventeen years, drug dealers often

keep "controlled substances at residences of other individuals” they know. Id. at 3. Schmidt

explained how he confirmed that the home belonged to White. Because he feared that knocking

and announcing the officers' presence might "endanger [their] safety” and because he thought

that White might "attempt to dispose” of drugs if they knocked, Schmidt also sought permission

for a no-knock warrant. Id.

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A Michigan state judge approved the requests. The search turned up over 20 grams of

cocaine, over 30 grams of "crack” cocaine, a stolen semi-automatic handgun, an AR-style rifle,

and over $2,500 in cash. The government charged White with being a felon in possession of a

firearm, possessing a firearm to further drug trafficking, possessing with intent to distribute

controlled substances, and brandishing a weapon to further drug trafficking. See 18 U.S.C.

§§ 922(g)(1), 924(a)(2), 924(c)(1)(A); 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).

Before trial, White moved to suppress the evidence recovered during the search, arguing

that Detective Schmidt's affidavit failed to establish probable cause. The district court granted

the motion.

The government appeals.

II.

Probable cause. The Fourth Amendment protects the "right of the people to be secure in

their . . . houses” and requires 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. In deciding whether "probable cause” exists to

issue a warrant, the magistrate must "make a practical, common-sense decision whether, given

all the circumstances set forth in the affidavit before him, . . . there is 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 (1983). In reviewing challenges to a warrant, we ask whether the magistrate had a

"substantial basis” for finding probable cause. Id.

This warrant passes the test. The sequence of events, all explained in the affidavit

Detective Schmidt provided with the warrant application, goes a long way to showing why.

Recall each step. Detective Schmidt asked Conkle, a suspected drug dealer, for cocaine. Conkle

directed Detective Schmidt to White's house. Conkle went into White's house and reemerged to

meet up with Schmidt. Only then did Conkle produce the drugs to complete the sale. Conkle's

visit to White's house between the offer and the sale raised a "common-sense” inference and a

"fair probability” that he obtained drugs from White's house. See id.

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Even if doubt might cloud that conclusion after one transaction—perhaps Conkle had the

drugs all along or perhaps Conkle had sold the last of the cocaine from White's house—that is

not all there is. A second buy occurred forty days later and reinforced the inference. Detective

Schmidt again approached Conkle to buy cocaine from him. Conkle again went into White's

house. After leaving White's house, Conkle again produced cocaine for sale to Schmidt. At a

minimum, the second buy gave Schmidt ample reason to seek a warrant and the magistrate ample

reason to grant one.

This conclusion does not blaze a new trail. United States v. Ellison involved a similar

situation, in which an informant observed two people complete a drug transaction outside of the

target house. 632 F.3d 347, 348 (6th Cir. 2011). According to the affidavit, the informant saw a

person exit the home, provide a buyer with a "large quantity of cocaine in a plastic bag,” and

return inside. Id. (quotations omitted). That sufficed to meet the probable cause requirement, we

reasoned, because the "[c]ommission of a drug transaction outside of a house and one

participant's walking back into the house . . . plainly demonstrated a sufficient nexus with the

house.” Id. at 349. The informant not only watched the deal from outside the home, but he also

saw that someone "came out of” and "returned to” the residence during the transaction. Id. at

350. White's house likewise amounted to the pivot on which each cocaine deal turned. Officers

watched as Conkle twice went into and returned from White's house before producing cocaine to

complete the deal. That he went to the home only after Detective Schmidt asked for cocaine

supports an inference that drugs were stored inside the house. Whether in Ellison or here, these

fair-minded inferences and implications "demonstrate[] a sufficient nexus with the house.” Id. at

349.

Other cases, including some with just one controlled buy, have likewise met the probable

cause bar. United States v. Pinson looked at whether a single controlled purchase by an

informant within 72 hours of the search warrant application established probable cause.

321 F.3d 558, 560–61 (6th Cir. 2003). The affidavit explained that the officer gave an informant

buy money and "observed” the informant "enter through the front door of [the] stated address

and momentarily return[] through the same door.” Id. at 560. At that point, the informant

"walked directly back” to the officer, "turning over a large yellowish rock that later field tested

No. 20-1633 United States v. White Page 5

positive for cocaine base.” Id. at 560–61. This pattern, we said, "[o]bviously” linked the house

to evidence of drug sales. Id. at 564.

Other circuits have reached similar conclusions in the context of controlled purchases

designed to ferret out whether a home is being used for drug trafficking. The Tenth Circuit

found that probable cause existed to search a residence after police twice observed an informant

enter and exit a residence during a drug transaction. United States v. Artez, 389 F.3d 1106, 1110

(10th Cir. 2004). Even though officers used an additional middleman "as an intermediary

between the confidential informant and the suspect residence,” the affidavit passed the probable

cause test. Id. at 1112. The First Circuit found that probable cause supported the search of an

apartment after a confidential informant told officers of drug sales inside and police observed

only that the informant entered the apartment building, not the particular apartment targeted.

United States v. Khounsavanh, 113 F.3d 279, 281–82 (1st Cir. 1997). The detective watched as

the informant "went to the apartment . . . after having been patted down, and emerged several

minutes later with crack, explaining that he had purchased crack” from one of the suspects. Id. at

286. Even while acknowledging that the "controlled buy was less than ideal” because the

detective "did not follow the informant into the building and thus was unable to verify with

certainty which apartment was the source of the drugs,” the court upheld the search. Id.

Similar conclusions followed after similar searches. See United States v. Garcia,

983 F.2d 1160, 1166–67 (1st Cir. 1993) (finding probable cause where a detective watched an

informant "enter the front door” of an apartment building and "observed him exit a few minutes

later from the same door,” after which the informant "handed [the detective] a quantity of

cocaine, reporting that he had purchased” it from the unit to be searched); United States v.

Dukes, 758 F.3d 932, 935 (8th Cir. 2014) (finding probable cause when a suspect took a

confidential informant to a house and "brought crack cocaine back” three times "[a]fter going

into the residence”).

Analogous cases, in which defendants stop at their own property during or immediately

before or after a drug transaction, support comparable experience-based inferences. When a

defendant "drive[s] directly from” his or her house to a drug sale, United States v. Coleman,

923 F.3d 450, 457 (6th Cir. 2019), leaves his "home immediately prior to selling drugs,” United

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States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007), "start[s] from her residence shortly before

allegedly delivering drugs,” United States v. Bulgatz, 693 F.2d 728, 731 (8th Cir. 1982), or

sleeps at home "the evening after . . . collect[ing] proceeds from a drug sale,” United States v.

Stearn, 597 F.3d 540, 564 (3d Cir. 2010), a judge may have good reason to think evidence of

drug sales might be found in the defendant's house.

Trying to counter this line of precedent, White invokes United States v. Buffer, 529 F.

App'x 482 (6th Cir. 2013). But this unpublished decision does not provide the Rosetta Stone

that he claims. Even aside from the reality that "the paper of unpublished decisions cannot

escape the scissors of published decisions on point,” Keahey v. Marquis, 978 F.3d 474, 480 (6th

Cir. 2020), Buffer offers little assistance to White. In that case, officers received an anonymous

tip that Buffer sold drugs from his home. Buffer, 529 App'x at 483. They observed several oneto-three-minute visits at the property, and one officer found marijuana in a car leaving the

residence. Id. On this record, we found that the "anonymous tip was insufficiently

corroborated.” Id. at 485. Here, in contrast, we have the firsthand account of an undercover

officer who asked to buy cocaine, then watched a suspected dealer walk into White's house

before reemerging with the requested drugs. Twice.

Besides, the path of unpublished decisions has perils of its own. United States v. Davison

considered whether an affidavit provided probable cause to search a property that the defendant

had twice entered to complete a drug transaction. 766 F. App'x 232 (6th Cir. 2019). Although

many controlled buys occurred in the case, we focused on just two to find a nexus between

illegal drug deals and the searched house. One drug buy "required the informant to drive [the

defendant] to” the house, where he "entered the home and came back out to complete the

transaction in the driveway.” Id. at 236. The other happened after officers watched as the

defendant drove to the target house, entered, and left before meeting an informant to complete

the sale. Id. at 236–37. The defendant argued that the affidavit did not support an inference that

the home belonged to him, but we found that irrelevant. Due to the defendant's "observed

movements entering and exiting” the property "in close temporal proximity to the controlled

drug buys,” the affidavit provided probable cause to search the house. Id. at 237.

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What of the possibility, White adds, that Conkle already had the cocaine on him before

going into White's house? Or the possibility that the last sale depleted the supply of cocaine at

White's house? The affidavit, sure thing, does not eliminate either possibility. But possibility is

not the touchstone. The question is whether there is a "fair probability” or a "common-sense”

inference that the house contains cocaine. Gates, 462 U.S. at 238. Probable cause does not

demand resolving each jot and tittle of metaphysical doubt. Florida v. Harris, 568 U.S. 237,

243–44 (2013). As a veterinarian or doctor or scientist might say, "when you hear

hoofbeats, think horses, not zebras.” Siddhartha Mukherjee, A.I. Versus M.D., The New Yorker

(2017). An issuing judge need not eliminate every alternative explanation to find a "fair

probability” that contraband will be present. Gates, 462 U.S. at 238; see also Dukes, 758 F.3d at

938 (upholding probable cause when officers did not search an informant "prior to the drug

transactions”).

No-knock entry. White separately argues that police unjustifiably used a no-knock

warrant to search his home. Although the Fourth Amendment incorporates the common law rule

that officers must knock and announce their presence before executing a warrant, Wilson v.

Arkansas, 514 U.S. 927, 929 (1995), an exception applies if officers face a threat of physical

violence or if they seek evidence that might readily be destroyed, id. at 936. Whether this

affidavit sufficed to invoke the exception is an open question. It will remain one. Even if the

police violated the knock-and-announce rule, suppression is not the appropriate remedy. See

Hudson v. Michigan, 547 U.S. 586, 594 (2006). As Hudson explains, the key remedy for

unjustified no-knock entries is an action under § 1983 for money damages, not exclusion of the

evidence in a criminal proceeding. Id. at 597–99; see also id. at 603 (Kennedy, J., concurring in

part and concurring in the judgment).

We reverse and remand for further proceedings consistent with this opinion.