J. RONNIE GREER, District Judge.
This matter is before the Court on Defendant's Motion to Suppress Evidence [Doc. 29] and the United States' Response [Doc. 32]. For the reasons herein, the Court will deny Defendant's motion.
On October 30, 2018, Corporal Trevor Salyer, a local law enforcement officer with the Elizabethton Police Department, appeared before the Honorable Lisa Rice, a state criminal-court judge, with an affidavit in support of a search warrant for Defendant Chadwick Dunford's residence and vehicle. [Aff., Doc. 30, at 4]. In the affidavit, Corporal Salyer alleged that he had probable cause to believe that Mr. Dunford was currently, and unlawfully, in possession of firearms and ammunition, in violation of Tennessee Code Annotated § 39-17-1307. [Id.]. He noted that Mr. Dunford, in 2016, had been convicted of aggravated assault, a felony offense under Tennessee Code Annotated 39-13-102. [Id. at 5]. In addition, Corporal Salyer alleged that he had probable cause to believe that the firearms and ammunition were located in Mr. Dunford's residence and vehicle. [Id. at 4].
As support for his belief that Mr. Dunford was unlawfully in possession of firearms and ammunition, Corporal Salyer recounted various events involving Mr. Dunford. The first event dealt with a complaint that an individual made against Mr. Dunford for harassment on October 28, 2018,
On the following day, October 30, 2018, Mr. Dunford uploaded a post to his Facebook page, and, in part, it read:
[Id. at 4].
According to Corporal Salyer, the photo of the firearms and ammunition "appeared to be taken in a residence," [id.], though he noted only that it was uploaded to Facebook in the early morning hours of October 30, 2018, and that a grocery basket was visible in the background of the photo.
Officers executed the search warrant on that same date, and they found in Mr. Dunford's residence a Glock 43, a 9mm Glock magazine, a high-capacity 9mm magazine, five .223 loaded magazines, three 12 gauge shotgun shells, a Silver Eagle 12 gauge shotgun, a 75 round capacity 7.62 drum, a tactical vest, an ammo can full of assorted ammunition, an ammo belt with assorted ammunition, three boxes of 9mm ammunition, three boxes of .223 ammunition, and two boxes of shotgun shells. [Evid. Recovery Log, Doc. 30, at 8-9].
Mr. Dunford now moves to suppress all the evidence that the officers discovered during their search of his residence and his vehicle, contending that Corporal Salyer's affidavit "failed to establish probable cause to believe that evidence of a crime would be found at the places to be searched." [Def.'s Mot. Suppress at 3]. In response to his motion, the Court held a suppression hearing. The Court is now prepared to rule on Mr. Dunford's motion.
"[I]t undoubtedly is within [a federal court's] power to consider the question whether probable cause existed" to support the issuance of a search warrant. United States v. Leon, 468 U.S. 897, 905 (1984). When reviewing a search warrant for probable cause, the district court does not write on "a blank slate." United States v. Tagg, 886 F.3d 579, 586 (6th Cir. 2018). In other words, the district court does not engage in a de novo review, or "after-the-fact scrutiny," when considering whether the judicial officer who issued the search warrant had probable cause to do so. Illinois v. Gates, 462 U.S. 213, 236 (1983). Instead, the judicial officer "should be paid great deference" from the district court. Id. (quotation omitted). The United States carries the burden of establishing that the four corners of a search warrant support a finding of probable cause. United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006).
"[A] state search warrant being challenged in a federal court must be judged by federal constitutional standards." United States v. McManus, 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States, 364 U.S. 206, 223-24 (1960)). The Fourth Amendment of the United States Constitution states 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."
To establish this fair probability, law enforcement officers have to sufficiently explain why they believe that they will find evidence of illegal activity in a particular place; in other words, they have to forge a "nexus between the place to be searched and the evidence sought." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quotation omitted). Although probable cause requires more than the "mere suspicion" of criminal activity, Sykes, 625 F.3d at 306 (internal quotation mark and quotation omitted), it does not demand "an actual showing of such activity," United States v. Moncivais, 401 F.3d 751, 756 (6th Cir. 2005) (quotation omitted); see Brinegar v. United States, 338 U.S. 160, 175 (1949) ("In dealing with probable cause . . . as the very name implies, we deal with probabilities."). In short, "[p]robable cause `is not a high bar.'" District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018) (quotation omitted).
In its application, though, probable cause is something of a protean concept—that is, it is "not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232; see Adams v. Williams, 407 U.S. 143, 147 (1972) ("One simple rule will not cover every situation."); see also Florida v. Harris, 568 U.S. 237, 243-44 (2013) (stating that the "test for probable cause is not reducible to `precise definition or quantification'" (quotation omitted)). Instead, probable cause is "a fluid concept." Gates, 462 U.S. at 232; see Harris, 568 U.S. at 244 (stating that "[a]ll we have required is the kind of `fair probability' on which `reasonable and prudent [people], not legal technicians, act," without resorting to "rigid rules, bright-line tests, and mechanistic inquiries" (quotations omitted)). When deciding whether probable cause supports an affidavit for a search warrant, courts therefore may, and often do, rely on "common-sense conclusions about human behavior." Gates, 462 U.S. at 231; see Harris, 568 U.S. at 244 (describing a "practical and common-sensical standard" for probable cause).
But in forming these common-sense conclusions, courts have a legal obligation to draw them from the totality of the circumstances, or in other words, from all the allegations in the affidavit—not viewing these allegations in piecemeal fashion but viewing them as one, organic whole. See Gates, 462 U.S. at 238 (adopting a totality-of-the-circumstances analysis that applies to probable-cause determinations); Tagg, 886 F.3d at 586 ("Facts must be considered together, not apart, since `the whole is often greater than the sum of its parts.'" (quoting Wesby, 138 S. Ct. at 588)). And, importantly, courts must confine themselves to the four corners of the affidavit, not looking to any evidence or information outside the affidavit. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009).
Mr. Dunford, in arguing that the affidavit is without probable cause for Corporal Salyer's belief that firearms and ammunition were present in his residence and vehicle, focuses on the requisite "nexus between the place to be searched and the evidence sought." Carpenter, 360 F.3d at 594 (quotation omitted). He contends that the affidavit lacks factual assertions linking his residence or vehicle to firearms and ammunition. [Def.'s Mot. Suppress at 4, 6]. Specifically, he maintains that "[t]he affidavit does not detail any facts as to why Corporal Salyer made the leap that firearms would be found at Mr. Dunford's residence or vehicles, simply because Mr. Dunford made negative expressions towards local law enforcement." [Id. at 4]. To support his argument, he dissects, or in his words, "pars[es] out paragraph by paragraph," Corporal Salyer's statements in the affidavit, explaining why each paragraph is factually insufficient to establish the requisite nexus. [Id. at 6-8]. Mr. Dunford places specific scrutiny on the fact that his Facebook photo of the firearms and ammunition and his Facebook photo at the shooting range are undated, and therefore could have been taken before his felony conviction in 2016. [Def.'s Mot. Suppress at 5, 6; Hr'g Tr. at 10:55:51-10:56:23; 10:59:59-11:00:17 (on file with the Court)]. Mr. Dunford also places scrutiny on the fact that the affidavit lacks information from which anyone could discern that he took the photo of the firearms and ammunition in his residence, rather than, say, in a relative's residence. [Hr'g Tr. at 10:59:50].
In response, the United States argues that the affidavit contains probable cause, "through the common sense lens of the totality of [the] circumstances." [United States' Resp. at 3]. In particular, the United States highlights Mr. Dunford's Facebook post, in which he used the language "shoot back," and the photo of the firearms and ammunition alongside that post. [Id. at 4-5]. The United States also stresses Corporal Salyer's statement that this photo "appeared to be taken in a residence." [Id. at 5]. In addition, the United States maintains that Mr. Dunford, by "deconstructing the affidavit," is "conducting the very hyper technical line by line scrutiny that's expressly forbidden both by the United States Supreme Court . . . as well as this circuit." [Hr'g Tr. at 10:41:47-10:41:58].
The Court begins with the method behind Mr. Dunford's argument—his "paragraph by paragraph" dissection of the affidavit. [Def.'s Mot. Suppress at 6]. By picking apart the affidavit in this way, he does indeed, as the United States points out, pitch an argument that is mutually incompatible with the totality-of-the-circumstances test. See Wesby, 138 S. Ct. at 588 (observing that "the totality-of-the-circumstances test `precludes this sort of divide-and-conquer analysis'" (quotation omitted)); United States v. Woolsey, 361 F.3d 924, 926 (6th Cir. 2004) ("[T]he court should consider whether the totality of the circumstances supports a finding of probable cause, rather than engaging in line-by-line scrutiny." (citation omitted)); Tagg, 886 F.3d at 586 ("Facts must be considered together, not apart, since `the whole is often greater than the sum of its parts.'" (quoting Wesby, 138 S. Ct. at 588)). In fact, Mr. Dunford's reliance on a paragraph-by-paragraph shakedown of the affidavit is by itself a basis for denial of his motion. See Wesby, 138 S. Ct. at 588-89 (reversing the circuit court partly because it examined a case in this way); United States v. Christian, 925 F.3d 305, 311 (6th Cir. 2019) (recognizing that the approach of viewing portions of an affidavit in isolation is "explicitly forbidden" (citing Gates, 462 U.S. at 235-36)); Tagg, 886 F.3d at 585-86 ("[J]udges are not permitted to engage in `an excessively technical dissection' of the record when determining probable cause." (quoting Wesby, 138 S. Ct. at 588)).
One of the shortcomings inherent in this divide-and-conquer approach is a defendant's propensity to "focus[] on what the affidavit does not contain, or the flaws of each individual component of the affidavit," without sufficient regard for "what the affidavit does show." Christian, 925 F.3d at 312 (emphasis added). This very shortcoming plagues Mr. Dunford's argument. For example, in engaging in a one-sided analysis of the affidavit's individual flaws, he omits any mention of Corporal Salyer's assertion that long-gun owners usually "store such firearms within a residence or the trunk compartment of a vehicle." [Aff. at 6]. An assertion like this one—based on a law enforcement officer's training and experience—carries substantial heft in an affidavit and, therefore, ought to be part of any totality-of-the-circumstances analysis. See United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008) ("[C]ourts may afford `considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found[.]" (quotation omitted)).
In a demonstration of how to examine the full contents of an affidavit rather than sift it for flaws, the Sixth Circuit has, on more than one occasion, begun its analysis of probable cause by reciting the assertions in the affidavit. See Christian, 925 F.3d at 308 (listing the "information in support of [the] belief that there was probable cause to search [the defendant's] home" as a primer to its analysis of probable cause); Tagg, 886 F.3d at 584 (enumerating the "pieces of data" in the affidavit before performing its analysis of probable cause); see also United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) ("[An] affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added."). In this case, Corporal Salyer's grounds for probable cause in his affidavit include: (1) Mr. Dunford's Facebook posts, namely his remarks that he could not wait to "retaliate" and "shoot back" against law enforcement officers and "their time is coming soon"; (2) his photo of a cache of firearms and ammunition, uploaded alongside his threatening Facebook posts; (3) his photo of himself in possession of firearms at a local shooting range; (4) Corporal Salyer's belief that Mr. Dunford appeared to upload his photo of firearms and ammunition from a residence; and (5) Corporal Salyer's belief that these firearms likely were present in Mr. Dunford's residence and/or vehicle because, based on his training and experience, long-gun owners customarily store these types of weapons in these places. [Aff. at 4-6].
While the Court is mindful that a person's residence is a place of sanctity under Fourth Amendment jurisprudence—because people have an unparalleled expectation of privacy in their homes, Payton v. New York, 445 U.S. 573, 589-90 (1980)—Corporal Salyer's assertions, in their totality and from a common-sense perspective, establish probable cause for the search of Mr. Dunford's residence and vehicle. Several courts, including the Sixth Circuit, have held that probable cause exists to search a suspect's residence for a firearm based on little more than an inference that the residence is the most likely place for the firearm. See Peffer v. Stephens, 880 F.3d 256, 271 (6th Cir. 2018); United States v. Goodwin, 552 F. App'x 541, 546 (6th Cir. 2014); United States v. Vanderweele, 545 F. App'x 465, 467 (6th Cir. 2013); United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988); United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975); United States v. Ingram, No. CR.A. 02-10360-RWZ, 2003 WL 21058181, at *2 (D. Mass May 9, 2003); see generally United States v. Hawkins, 278 F. App'x 629, 634 (6th Cir. 2008) ("[The] nexus may be established by the nature of the items and normal inferences of where a person would keep such items." (citing United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005); United States v. Rosenbarger, 536 F.2d 715, 719 (6th Cir. 1976))). Indeed, the Sixth Circuit "ha[s] acknowledged that individuals who own guns keep them at their homes," and that, therefore, "a suspect's use of a gun in the commission of a crime is sufficient to find a nexus between the gun that was used and the suspect's residence." Peffer, 880 F.3d at 271 (internal quotation omitted).
In Mr. Dunford's case, Corporal Salyer sought to establish probable cause for illegal possession of a firearm under Tennessee Code Annotated § 39-17-1307—a possessory crime, which, like any other crime involving a firearm, supports the common-sense inference that Mr. Dunford stored the firearms in his residence. United States v. Smith, 182 F.3d 473, 480-81 (6th Cir. 1999).
Although Mr. Dunford contends that his undated photo of himself at the shooting range does not "show anything other than his possession [of firearms] at some point in time," which, he argues, could have occurred before his felony conviction, he does not specifically invoke— beyond this general assertion—the doctrine of staleness. [Def.'s Mot. Suppress at 5]. "Staleness" refers to the precept that probable cause "is concerned with facts relating to a presently existing condition," United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (quotation omitted), and akin to the totality-of-the-circumstances test, "[t]he staleness inquiry is tailored to the specific circumstances in each case," Goodwin, 552 F. App'x at 544 (citing Abboud, 438 F.3d at 572). "The critical question," in consideration of staleness, "is whether the information contained in the affidavit, when presented to the . . . judge, established that there was a fair probability that [evidence] would still be found at [the location of the search]." Abboud, 438 F.3d at 572 (quotation omitted).
The length of time between the occurrence of the events alleged in an affidavit and the application for a search warrant, however, "is not controlling," Spikes, 158 F.3d at 923— especially when the crime involves a firearm, see United States v. Lancaster, 145 F. App'x 508, 513 (6th Cir. 2005) (holding that information pertaining to a suspect's possession of a machine gun, even though it predated the affidavit by more than two years, was not stale); see also United States v. Piloto, 562 F. App'x 907, 913 (11th Cir. 2014) ("Unlawful possession of a firearm is an ongoing crime, so `old' information is relevant to the question of present probable cause."); see generally Abboud, 438 F.3d at 572 ("It is possible that even if a substantial amount of time had elapsed between `a defendant's last reported criminal activity' and the issuance of the warrant, the warrant had not become stale." (citation omitted)).
A proper analysis of staleness, therefore, cannot rest exclusively on the age of the information supporting an affidavit's allegations, Spikes, 185 F.3d at 923, but must consist of an examination of four factors: (1) "the character of the crime (chance encounter in the night or regenerating conspiracy?)"; (2) "the criminal (nomadic or entrenched?)"; (3) "the thing to be seized (perishable and easily transferable or of enduring utility to its holder?)"; and (4) "the place to be searched (mere criminal forum of convenience or secure operational base?)." Christian, 925 F.3d at 324 (quotation omitted). Mr. Dunford's failure to mention these four factors, let alone perform an analysis under them, is by itself fatal to his argument. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones." (quotation omitted)); E.D. Tenn. L.R. 7.1(b) ("Briefs shall include. . . [the] legal grounds which justify the ruling sought from the Court.").
But even if Mr. Dunford had addressed these four factors, the Court would not accept a staleness argument because, despite the lack of dates on the Facebook photos, the totality of the circumstances establishes "a fair probability that [the firearms and ammunition] would still be found" in his residence and vehicle. Abboud, 438 F.3d at 572 (quotation omitted). Again, "[t]he staleness inquiry is tailored to the specific circumstances in each case." Goodwin, 552 F. App'x at 544 (citing Abboud, 438 F.3d at 572). According to Corporal Salyer's affidavit, Mr. Dunford's photo of the firearms and ammunition were attached to, or uploaded with, his Facebook posts containing his threat to "shoot back" against law enforcement officers, [Aff. at 5], creating temporal proximity between the two. From a common-sense perspective, the temporal proximity between his threat and his photo can mean only one thing: he had the present ability to carry out the acts of violence that he referred to. See Gates, 462 U.S. at 231 (highlighting the "common-sense conclusions about human behavior" that are integral to an analysis of probable cause); see also Harris, 568 U.S. at 244 (describing a "practical and common-sensical standard" underlying the analysis of probable cause). Simply, the totality of the circumstances, commingled with even a small dose of common sense, does not sustain the argument that Mr. Dunford's photos of the firearms were a throwback to a distant time and place.
Lastly, the Court would be remiss if it did not mention that none of the cases that Mr. Dunford cites in support of his cause has anything to do with firearms. During the hearing, Mr. Dunford placed particular emphasis on United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004), which he described as "seminal for the Court to look at." [Hr'g Tr. at 10:48:50-10:48:56]. But Carpenter dealt with the offense of marijuana manufacturing, not the illegal possession of firearms. The distinction is an important one because the specific type of offense in question is hardly incidental to an analysis of probable cause. See United States v. Sneed, 385 F. App'x 551, 556 (6th Cir. 2010) ("[A] nexus can be inferred based on the nature of the evidence sought and the type of offense that the defendant is suspected of having committed." (emphasis added) (citations omitted)); see also Tagg, 886 F.3d at 586 (describing the "unique challenges of child-pornography crimes" in the context of "the probable-cause question" (citation omitted)); United States v. Brown, 828 F.3d 375, 383-84 (6th Cir. 2016) (discussing the Sixth Circuit's specific line of jurisprudence concerning drug dealers and findings of probable cause). In sum, the four corners of Corporal Salyer's affidavit, based on the totality of the circumstances, easily support the United States' position that probable cause existed for the search of Mr. Dunford's residence.
As is the case with Mr. Dunford's residence, the affidavit establishes probable cause for the search of his vehicle, under the totality of the circumstances. To begin with, Mr. Dunford's possession of firearms at the shooting range enables the Court arrive at the common-sense inference that he used his vehicle to transport the firearms and ammunition from his residence to the range, and even to store these items. Cf. United States v. Morris, CR 117-039, 2017 WL 5180970, at *4 (S.D. Ga. Oct. 19, 2017) ("[C]ommon sense dictates that hunters keep hunting devices and quarry in their vehicles and homes, and felons in possession of firearms often store them in the same locations."); United States v. Tisdale, 70 F.Supp.2d 1210, 1215 (D. Kan. 1999) ("Common sense suggests that if the defendant had such items with him before the shooting, they had been kept either in his house or in his car.").
When the Court considers his possession of firearms at the range, the common-sense nexus between the firearms and his vehicle as a method of transportation to and from the range, the temporal proximity between his threats and his photo of the firearms, and Corporal Salyer's belief—from his training and experience—that the firearms likely were present in his vehicle, the affidavit is undoubtedly imbued with probable cause. Compare Vanderweele, 545 F. App'x at 469 (holding that a nexus existed to link a silencer to the suspect's residence based on nothing more than (1) information that the suspect had been seen with it and (2) the affiant's statement, based on his training and experience, that owners of firearms and related items commonly keep them in their homes), with Arizona v. Gant, 556 U.S. 332, 345 (2009) (recognizing that, under the Fourth Amendment, an individual's "privacy interest in his vehicle [is] less substantial than in his home" (citation omitted)); see Williams, 544 F.3d at 686 (granting "considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found" (quotation omitted)). In short, the affidavit supports a "fair probability" that the firearms were present in Mr. Dunford's vehicle, Gates, 462 U.S. at 238, and nothing more is necessary for a finding of probable cause, Wesby, 138 S. Ct. at 586 ("Probable cause `is not a high bar.'" (quotation omitted)).
The United States satisfies its burden of showing that Corporal Salyer's affidavit, under the totality of the circumstances, establishes probable cause for the search of Mr. Dunford's residence and vehicle. Mr. Dunford's Motion to Suppress Evidence [Doc. 29] is therefore
So ordered.
Corporal Salyer had no legal obligation to add further specificity to his affidavit; his indication that the crime at issue was possessory in nature is enough to justify a finding of probable cause. See United States v. Anderson, 923 F.2d 450, 457 (6th Cir. 1991) ("[K]nowledge of the precise crime committed is not necessary to a finding of probable cause provided that probable cause exists showing that a crime was committed by the defendants."); Allen, 211 F.3d at 974 ("[A]n affidavit need only provide probable cause to believe a search will uncover evidence of some wrongdoing, without need for further specificity." (citing Anderson, 211 F.2d at 457)); see also Adams v. Williams, 407 U.S. 143, 149 (1972) ("Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." (citation omitted)).