United States of America v. Russell Davis

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0232p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUSSELL DAVIS,
Defendant-Appellant.
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No. 22-3603
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:16-cr-00260-1—Christopher A. Boyko, District Judge.
Decided and Filed: October 23, 2023
Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: William Bernard Norman, W.E.B. NORMAN LAW, INC., Berea, Ohio, for
Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee.
MURPHY, J., delivered the opinion of the court in which KETHLEDGE, J., joined.
GILMAN, J. (pp. 15–19), delivered a separate dissenting opinion.
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OPINION
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MURPHY, Circuit Judge. If a police officer violates the Fourth Amendment by
conducting a search without probable cause, the “exclusionary rule” requires a court to prohibit
the use of any recovered evidence at the defendant’s criminal trial. See generally Mapp v. Ohio,
367 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897 (1984), however, the Supreme
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Court held the exclusionary rule typically will not apply if the officer obtained a warrant for this
search—even if the judge who issued the warrant erred in finding that probable cause existed.
See id. at 922. That said, Leon added that the officer cannot rely on the judge’s probable-cause
ruling to avoid the exclusionary rule if the affidavit requesting the warrant was so bare bones that
no reasonable officer could believe that it established probable cause. See id. at 923. This case,
which reaches us for a second time, raises a novel issue under Leon’s framework.
Russell Davis sold fentanyl that caused a deadly overdose. After a thorough
investigation, a detective obtained a warrant from an Ohio magistrate to search Davis’s home in
Lorain, Ohio. In Davis’s first appeal, the government conceded that the detective’s affidavit in
support of this warrant omitted facts showing the required probable-cause “nexus” between
Davis and his home. United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020). But we
remanded for an evidentiary hearing because the government contended that the detective had
provided additional (unrecorded) oral testimony in front of the magistrate. Id. During this later
federal hearing, the detective stated that he believed he had told the magistrate about the
evidence connecting Davis to the home, but he could not recall any specifics. The district court
held that this general belief sufficed to avoid the “bare-bones” label and thus to trigger Leon’s
exception to the exclusionary rule.
We agree for two basic reasons. First, the detective had uncovered overwhelming
evidence tying Davis to the home. And second, the magistrate (not the detective) bore any blame
for failing to transcribe the detective’s additional oral testimony under state law. We also reject
Davis’s other challenges to the warrant. So we now affirm Davis’s conviction in full.
I
A
On the morning of March 7, 2016, Jacob Castro-White’s mother tragically discovered
that he had died from a drug overdose in their Lorain home. Id. at 654. A first responder alerted
Detective Ernest Sivert of the Lorain Police Department. Id. At Davis’s trial, Sivert detailed his
ensuing investigation. Id. at 663. Sivert noticed that Castro-White’s phone had many missed
calls from Zaharias (“Harry”) Karaplis. Id. During an initial interview, Karaplis implicated an

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No. 22-3603 United States v. Davis Page 3
individual known as “Red” as the drug dealer who might have sold the fatal drugs to Castro-
White. Id. But Karaplis also lied to Sivert by denying any involvement. Id.
Sivert learned of this lie after receiving Castro-White’s phone records. Id. Those records
revealed Castro-White’s activities on the evening of March 6. Id. at 654–55. Around 10:00
p.m., Castro-White began to text another friend, Corey Stock, about obtaining heroin. Id. Stock
said that he could ask a drug-dealer acquaintance if she had heroin, but Castro-White declined
the offer and said he would wait for Red. Id. at 654. Shortly before midnight, he texted Karaplis
to see if Karaplis could arrange a drug deal with this person. Id. at 654–55.
In a follow-up interview with Sivert, Karaplis continued to lie about his involvement.
Sivert confronted him with the texts. Id. at 663. Karaplis then requested a lawyer. Id. Before
doing so, he identified the “Stock” in Castro-White’s texts as Corey Stock. Id. Stock later told
Sivert that he had bought drugs from “Red” at a “Garden Avenue home” in Lorain. Id.
After retaining counsel, Karaplis spoke with Sivert a third time. At last, Karaplis
admitted his role. Id. He had arranged the heroin deal with Davis, and Castro-White had driven
him to Davis’s Garden Avenue house at 12:34 a.m. on March 7. Id. at 655. Karaplis paid Davis
$50 for “what he thought was heroin,” and Karaplis and Castro-White split the drugs. Id. It
turns out that Davis had provided the men with fentanyl—a much stronger drug. Id. When
speaking to Sivert this third time, Karaplis described Red and Red’s car, provided Red’s phone
number, and located on Google Maps the specific home where he had bought drugs from Red.
Id. at 663.
Sivert traveled to this home and spotted a car parked nearby that fit Karaplis’s
description. Id. Sivert learned that the car’s license plate was registered to “Russell Davis” and
that Davis’s nickname was “Big Red.” Id. He also asked Karaplis to look at a photo array. Id.
Karaplis identified Davis’s picture as “Red” with “100 percent” confidence. Id.
About a week later, Karaplis received a text message from Davis. Id. Karaplis contacted
Sivert. Id. Sivert had Karaplis set up a phone call with Davis. When Karaplis began to discuss
Castro-White’s death, Davis asked if the police had “sweat[ed]” him about it. Id.

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After this call, Sivert asked an Ohio magistrate for a warrant to search Davis’s Garden
Avenue home for his cellphone. Id. Sivert’s affidavit summarized the events as follows:
1. In the early morning hours of . . . March 7, 2016, Jacob Castro-White was in
contact with Zaharias Karaplis, another heroin user, for the purpose of
obtaining heroin.
2. Zaharias Karaplis and Jacob Castro-White made contact with a male known as
“Red” and later identified as Russell Davis, on his cellular phone (216) 526-
8810 for the purpose of purchasing heroin, both through text and voice
communication.
3. Zaharias Karaplis and Jacob Castro-White met with Russell “Red” Davis on
March 7, 2016 for the purpose of buying heroin from him.
4. Jacob Castro-White ingested the purported heroin from Russell “Red” Davis
and it caused him to overdose. The time between the purchase of the heroin
from Russell “Red” Davis and the estimated time of death, by the Lorain
County Coroner Steven Evans is approximately one (1) hour.
5. Toxicology tests conducted by the Lorain County Coroner’s Office revealed
that Jacob Castro-White had a lethal dose of Fentynal in his sytem [sic].
6. On April 12, 2016 at 0945 hours Zaharias Karaplis received a text message
from Russell “Red” Davis via his cellular telephone with the number (216)
526-8810.
Id. at 663–64. “Based on this investigation,” Sivert added, he believed that Davis had been
“trafficking in heroin” from the Garden Avenue home and using his cellphone as an “instrument”
of that “trafficking business.” Aff., R.31-1, PageID 121. Sivert also opined that the phone was
likely still at the Garden Avenue home, referring to it as the “residence of Davis.” Id.
The magistrate granted the search warrant. Davis, 970 F.3d at 664. During the search of
Davis’s home, police found, among other things, the phone and illegal drugs. Id.
The government indicted Davis on two drug counts. Id. at 654. Davis moved to suppress
the evidence recovered from his home. Id. at 664. The district court denied this motion. Id.
Davis stood trial on one of the drug counts. Id. at 654–55. A jury convicted him of
distributing fentanyl and found that the distribution caused Castro-White’s death. Id. at 655.
Given this fatality, the district court sentenced Davis to a mandatory life sentence. Id.

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In his first appeal, Davis sought to overturn his conviction on many grounds. We
rejected all of his claims except for two concerning Davis’s Fourth Amendment challenge to
Sivert’s affidavit. Id. at 656–66. Alleging that Sivert had omitted material facts from his
affidavit, Davis argued that the district court should have held a hearing to examine the
detective’s truthfulness under Franks v. Delaware, 438 U.S. 154 (1978). Davis, 970 F.3d at 664.
Alternatively, Davis argued that Sivert’s affidavit did not assert any facts to show that Davis
lived at the Garden Avenue home. In response to the second argument, the government
conceded that the affidavit lacked the required probable-cause “nexus” between Davis and this
home. Id. at 666. But it suggested that Sivert had given more oral testimony in front of the
magistrate who issued the warrant. Id.
Ultimately, we remanded the case so the district court could hold an evidentiary hearing
about what Sivert told the magistrate in person. Id. at 664, 666. We reasoned that the Fourth
Amendment did not require written testimony. Id. at 666. We added that Sivert’s investigation
showed that he had plenty of facts connecting Davis to the Garden Avenue home. Id.
B
On remand, the district court held a hearing at which two witnesses testified: the
magistrate who issued the warrant and Detective Sivert. Tr., R.147, PageID 2868. The
magistrate explained that he followed a standard “process” when reviewing warrant requests.
Id., PageID 2880. He would “swear the officer,” “review” the affidavit, and “discuss the issue
with the officer[.]” Id. The magistrate did not use a court reporter to transcribe these
conversations. Id. If an affidavit fell well short of probable cause but the officer knew more
facts, the magistrate would ask the officer to draft another affidavit. Id., PageID 2889–90. But
the magistrate might not require a second affidavit if the first one fell “close” to the probable-
cause line and the magistrate “needed clarification” on just one issue. Id., PageID 2891.
Although the magistrate described his general practice, he lacked a “specific recollection” of
Davis’s case. Id., PageID 2882. But he would have been “shocked” if he had not spoken with
Sivert about the warrant. Id.

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Detective Sivert recalled more. Davis’s case “stuck in [his] mind” because he knew the
victim’s grandfather, a retired police officer. Id., PageID 2932. Sivert “discussed the majority of
the case” with the magistrate but could not remember any details that he had disclosed. Id.,
PageID 2933. He stated that he was “sure” that he had conveyed the many facts connecting
Davis to the Garden Avenue home, but he added that he could not “be a hundred percent
certain[.]” Id.
After this hearing, the district court again denied Davis’s motion to suppress. See United
States v. Davis, 2022 WL 2314009, at *1 (N.D. Ohio June 28, 2022). The court agreed that the
affidavit failed to establish a probable-cause nexus between Davis and the Garden Avenue home.
See id. at *4. It also found that the magistrate had put Sivert under oath to discuss the case. Id.
at *6. But neither the magistrate nor Sivert could recall what Sivert had said. Id. at *6–7. Given
the “unknown specifics,” the court held that this testimony did not prove that Sivert conveyed
facts to create probable cause that Davis lived at the home. Id. at *7.
Even so, the court held that the exclusionary should not apply under Leon because Sivert
had relied on the magistrate’s issuance of the warrant. Id. at *8–10. It initially rejected Davis’s
claim that Leon’s exception to the exclusionary rule could not apply because the magistrate had
“abandon[ed] his role as a judicial officer.” Id. at *9. The court next rejected Davis’s claim that
Leon’s exception should not apply because Sivert’s supporting affidavit was “bare bones.” Id. at
*9–10. It decided that Sivert’s general “belief” that he had told the magistrate the facts that
connected Davis to the home sufficed to avoid the bare-bones label. Id. at *10. The court lastly
rejected Davis’s claim that Sivert’s affidavit presented materially false information. Id. at *5.
Davis appeals a second time. We review the district court’s findings of historical fact for
clear error and its legal conclusions de novo. United States v. Baker, 976 F.3d 636, 641 (6th Cir.
2020). And we treat the court’s ultimate decision to apply Leon’s warrant exception to the
exclusionary rule as a legal conclusion. United States v. Reed, 993 F.3d 441, 446 (6th Cir.
2021).

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II
The Fourth Amendment 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 the probable cause
necessary for a warrant, an officer’s supporting affidavit must show a “probable-cause ‘nexus’”
tying the place to be searched to the items to be seized. Reed, 993 F.3d at 447. Here, Detective
Sivert sought to seize Davis’s phone from the Garden Avenue home. But Sivert’s affidavit
mistakenly omitted facts showing that Davis lived there. So the government does not dispute
that the affidavit failed to establish probable cause that the police would find the phone at this
location.
This case instead concerns the proper response to this Fourth Amendment problem. The
Fourth Amendment’s text does not require any specific remedy when a magistrate issues a
warrant lacking probable cause. See Herring v. United States, 555 U.S. 135, 139 (2009). But the
Supreme Court has long adhered to a judge-made “exclusionary rule” that sometimes bars the
use of evidence at a defendant’s trial if the police uncovered it in violation of the amendment.
See Davis v. United States, 564 U.S. 229, 236–38 (2011); Arizona v. Evans, 514 U.S. 1, 10–11
(1995). The Court now applies this rule only if its benefits in stopping constitutional violations
exceed its costs in hindering the trial’s “truth-finding function” and permitting “wrongdoers” to
escape punishment. United States v. Robinson, 63 F.4th 530, 534 (6th Cir. 2023).
Engaging in this cost-benefit balance, the Court in Leon held that the exclusionary rule
generally should not apply if a judge issues a search warrant that violates the Fourth Amendment
because it rests on an affidavit that does not establish probable cause. 468 U.S. at 916–21. Leon
reasoned that the exclusionary rule exists to deter the misconduct of police officers—not judges.
See id. at 916. In most cases, moreover, the officer seeking a warrant will “defer to the judge’s
legal conclusion” about whether probable cause exists. Reed, 993 F.3d at 450. So the blame for
a bad warrant generally will fall on the judge. See Leon, 468 U.S. at 920–21.

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Leon’s rejection of the exclusionary rule would seem to govern Davis’s case. After all,
Sivert relied on the magistrate’s conclusion that probable cause existed when he searched
Davis’s home based on the warrant that the magistrate had issued. And the magistrate (not
Sivert) would have committed the primary “error” by overlooking that Sivert’s affidavit failed to
disclose facts showing that Davis lived at the home that Sivert sought to search. Id. at 921.
At the same time, Leon recognized that officers might sometimes bear the blame for
unlawful warrants in “unusual” situations. Id. at 918. The Court identified “four” circumstances
in which the exclusionary rule will still apply even if an officer obtains a warrant. Baker, 976
F.3d at 647 (citation omitted); see Leon, 468 U.S. at 923. Davis invokes three of these
circumstances.
Circumstance One: “Bare-Bones” Affidavits. Leon held that the exclusionary rule should
still apply even when an officer gets a warrant if the officer’s supporting affidavit contained so
little information that no reasonable officer could believe it established probable cause. 468 U.S.
at 923. The classic example of this “bare-bones affidavit” alleges the officer’s conclusory belief
that probable cause exists without identifying any facts. United States v. White, 874 F.3d 490,
496, 498–99 (6th Cir. 2017). If, by contrast, an affidavit alleges “some modicum of evidence,
however slight,” connecting the sought-after items to the to-be-searched place, it will fall within
Leon’s exception to the exclusionary rule. Reed, 993 F.3d at 451 (citation omitted).
Davis argues that Sivert drafted a bare-bones affidavit because it did not identify even a
“modicum” of a connection between himself and his home. The government does not dispute
Davis’s claim that the affidavit alone was bare bones. So we need not consider that issue.
Rather, we must ask only whether Sivert’s further testimony took this case outside the
“bare-bones” camp. The district court could not identify any specific facts that Sivert told the
magistrate because neither witness could recall the details years later. See Davis, 2022 WL
2314009, at *7. At best, Sivert stated a general “belief” that he told the magistrate about the
information tying Davis to the residence. Id. at *10. The district court held that this belief
provided the “modicum of evidence” required to trigger Leon’s exception. Id. We agree for two
reasons.

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First, Sivert uncovered plenty of evidence tying Davis to the Garden Avenue home.
Stock told Sivert that he had bought drugs from “Red” at this home. See Davis, 970 F.3d at 663.
Karaplis likewise identified the home on Google Maps as the place of the drug deal that led to
the fatal overdose. See id. And Sivert corroborated their information. See id. When surveilling
the home, he noticed the car that Karaplis identified as Red’s and confirmed that the car
belonged to Davis. Id. At the evidentiary hearing, Sivert added that he had run Davis’s phone
number through a police database, which also listed the Garden Avenue address as Davis’s
home. Tr., R.147, PageID 2946–47, 2960. If disclosed in Sivert’s testimony, this evidence
would have satisfied the Fourth Amendment by establishing probable cause that Davis lived at
the home. Davis, 970 F.3d at 666.
In some courts, this evidence also would have triggered Leon’s exception to the
exclusionary rule even if Sivert had not disclosed it to the magistrate. These courts hold that
they may consider all of the circumstances (including facts “outside of the four corners of the
affidavit”) to evaluate whether an officer reasonably relied on a judge’s finding that probable
cause existed when issuing a warrant. United States v. Farlee, 757 F.3d 810, 819 (8th Cir.
2014); United States v. McKenzie-Gude, 671 F.3d 452, 459–60 (4th Cir. 2011); United States v.
Martin, 297 F.3d 1308, 1318–19 (11th Cir. 2002); United States v. Dickerson, 975 F.2d 1245,
1250 (7th Cir. 1992); see also State v. Dibble, 150 N.E.3d 912, 916–17 (Ohio 2020); Adams v.
Commonwealth, 657 S.E.2d 87, 93–94 (Va. 2008); Moore v. Commonwealth, 159 S.W.3d 325,
328 (Ky. 2005); State v. Edmonson, 598 N.W.2d 450, 460–61 (Neb. 1999); Moya v. State, 981
S.W.2d 521, 525–26 (Ark. 1998).
Admittedly, our court rejects this rule. When engaging in the Leon inquiry, we will not
rely on information known only to the officer (and not the magistrate). See United States v.
Waide, 60 F.4th 327, 342 (6th Cir. 2023); United States v. Laughton, 409 F.3d 744, 751–52 (6th
Cir. 2005); see also United States v. Knox, 883 F.3d 1262, 1270–73 & n.7 (10th Cir. 2018);
United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988). We instead will consider only the
outside-the-affidavit information that an officer discloses to a magistrate by other means. See
United States v. Frazier, 423 F.3d 526, 535–36 (6th Cir. 2005); see also United States v.

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Thomas, 852 F. App’x 189, 198–99 (6th Cir. 2021). Under our approach, then, Sivert’s personal
knowledge that Davis lived at the Garden Avenue home does not alone satisfy Leon.
Yet this approach brings us to our second reason why we will apply Leon’s warrant
exception to the exclusionary rule: Sivert provided more facts to the magistrate. And the
magistrate bears the blame for failing to make a record of these facts.
To begin with, the district court found that the magistrate had put Sivert under oath and
obtained more information about the case. See Davis, 2022 WL 2314009, at *6. Our caselaw
permits us to consider this extra information. See Frazier, 423 F.3d at 535–36. Sivert later
opined that he “believe[d]” he told the magistrate the facts connecting Davis to the residence.
Tr., R.147, PageID 2933. And the district court concluded that his testimony did not satisfy the
Fourth Amendment only because nobody transcribed it. See Davis, 2022 WL 2314009, at *6–7.
Who is to blame for this oversight? That question matters under Leon. The Supreme
Court has made clear that the exclusionary rule exists to deter only police misconduct. See
Davis, 564 U.S. at 246. When an unlawful search arises from a judge’s action, the Court has
refused to exclude any evidence. That occurred in Leon itself, which reasoned that a judge bears
the blame for issuing a warrant without probable cause. 468 U.S. at 921. The Court has since
expanded this principle to other judicial errors. It refused to apply the exclusionary rule when a
court clerk wrongly failed to notify the police that an arrest warrant had been quashed. See
Evans, 514 U.S. at 4–5, 14–16. And it refused to apply the exclusionary rule when a police
officer relied on an appellate court’s misreading of the Fourth Amendment. See Davis, 564 U.S.
at 241.
This principle applies here too. The magistrate (not Detective Sivert) had a duty to
record his testimony under Ohio law. See Dibble, 150 N.E.3d at 921. When considering warrant
requests, Ohio judges “may require the affiant to appear personally . . . , and may examine under
oath the affiant and any witnesses the affiant may produce.” Ohio Crim. R. 41(C)(2). This Ohio
rule adds: “Such testimony shall be admissible at a hearing on a motion to suppress if taken
down by a court reporter or recording equipment, transcribed, and made part of the affidavit.”
Id. The Ohio Supreme Court has held that any blame for failing to record this testimony belongs

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to a judge. Dibble, 150 N.E.3d at 921. It reasoned that the “officer has no control over the
court’s recording and transcription procedures.” Id. In this case, then, the “very fact” that the
magistrate took more testimony would have led Sivert to reasonably “believe that the testimony
[had] legal significance and [was] being properly considered in assessing probable cause.” Id.
In sum, even if Sivert’s affidavit could be described as bare bones, the added information
that he gave the magistrate suffices to avoid the exclusionary rule. Sivert had substantial
evidence connecting Davis to the Garden Avenue home. He testified about his investigation.
And we lack specific details about his testimony only because the magistrate failed to transcribe
it. Since Sivert did not engage in any intentional or reckless misconduct, the exclusionary rule
should not apply to the evidence recovered from his search. See Herring, 555 U.S. at 147–48.
In response, Davis argues that we may not consider Sivert’s oral testimony because Ohio
law allegedly prohibits courts from relying on unrecorded evidence at later suppression hearings.
Ohio Crim. R. 41(C)(2). His argument suffers from two problems. For one thing, this Ohio rule
regulates state courts and does not govern in these federal proceedings. See, e.g., United States
v. Beals, 698 F.3d 248, 263–64 (6th Cir. 2012); United States v. Wright, 16 F.3d 1429, 1434 (6th
Cir. 1994). And under our court’s view of federal law, we may rely on information outside an
affidavit where, as here, an officer conveys the information to the magistrate. See Frazier, 423
F.3d at 535–36. We have not limited this principle only to recorded information. For another
thing, the Ohio Supreme Court itself recently held that this Ohio rule does not bar the use of
unrecorded testimony when evaluating a Leon defense in Ohio’s own courts. See Dibble, 150
N.E.3d at 920–21. So it would make no sense for us to rely on the rule to reject the testimony in
federal court.
Circumstance Two: Officer Falsehoods. Leon also held that the exclusionary rule should
apply despite a magistrate’s issuance of a warrant if a police officer obtained the warrant by
making a knowingly or recklessly false statement in the affidavit requesting it. 468 U.S. at 923.
Leon cited the Court’s earlier holding in Franks for this rule. Leon, 468 U.S. at 923. Franks
held that a false statement in an affidavit can invalidate an ensuing warrant if the defendant
proves two elements: that the officer knowingly or recklessly included the false statement and
that the affidavit would not have established probable cause without it. 438 U.S. at 155–56.

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Davis argues that this Franks rule should apply here because Sivert’s affidavit did not tell
the magistrate about Harry Karaplis’s credibility issues, including his lies during their first two
interviews. Davis thus does not rely on a false statement of fact in Sivert’s affidavit. He relies
on the omission of facts from the affidavit.
Although we have not categorically excluded these types of omissions from the Franks
inquiry, we have repeatedly held that a defendant must meet a “higher” standard to invalidate a
warrant based on an omission (rather than a false statement). United States v. Neal, 577
F. App’x 434, 450 (6th Cir. 2014) (quoting United States v. Fowler, 535 F.3d 408, 415 (6th Cir.
2008)); see, e.g., United States v. Fisher, 824 F. App’x 347, 353–54 (6th Cir. 2020); United
States v. Alford, 717 F. App’x 567, 570 (6th Cir. 2017); United States v. Martin, 920 F.2d 393,
398 (6th Cir. 1990). When describing this higher standard, we have sometimes noted that a
defendant must prove that an officer omitted the information “with an intention to mislead” (not
just with recklessness) and that the omission of the information was “critical to the finding of
probable cause[.]” Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998); see Hale v. Kart,
396 F.3d 721, 726–27 (6th Cir. 2005). Other times, though, we have suggested that the
defendant must show that the officer omitted the information intentionally or with reckless
disregard. See United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001); United States v.
Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). If the latter rule applies, it is unclear how we have
set a “higher” standard for omissions than the one that governs false statements (as we have
said).
Regardless, Davis cannot meet any version of Franks’s first element. The district court
found that Sivert had not intentionally misled the magistrate or acted in reckless disregard of the
truth when failing to disclose Karaplis’s credibility problems. See Davis, 2022 WL 2314009, at
*5. We treat this conclusion as a finding of historical “fact” about Sivert’s state of mind and so
review it under the deferential clear-error standard. See United States v. Poulsen, 655 F.3d 492,
504 (6th Cir. 2011); United States v. Bonds, 12 F.3d 540, 568–69 (6th Cir. 1993). Yet Davis
does not point to any evidence to suggest—nor does he even argue—that Sivert intended to
mislead the magistrate or acted in reckless disregard of the truth. Plenty of evidence shows the
contrary. Sivert testified that he found Karaplis’s statements credible despite his earlier lies. See

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Davis, 2022 WL 2314009, at *5. Sivert also did much to corroborate the statements. See id. He
reviewed Castro-White’s phone records, interviewed Corey Stock, and surveilled Davis’s house.
Circumstance Three: Biased Magistrates. Leon lastly held that the exclusionary rule
should apply despite a magistrate’s issuance of a warrant if the magistrate “wholly abandoned” a
“judicial role” and failed to act as a neutral adjudicator. 468 U.S. at 923. Leon highlighted the
decision in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), as containing the prototypical
facts that fit this exception. See Leon, 468 U.S. at 923. In Lo-Ji, a “Town Justice” issued a
warrant to search a store for allegedly obscene films. 442 U.S. at 321–22. This judge then
accompanied the police to the store and oversaw the search. Id. at 322–23. The Court held that
the judge had not acted with the “neutrality and detachment” required of those who have the duty
to issue warrants because he had joined in the executive branch’s criminal investigation. Id. at
326–27.
Since Leon, we have interpreted this exception to apply if a magistrate acted as a mere
“rubber stamp” for an officer by issuing the warrant without independently examining whether
probable cause exists. See United States v. Abdalla, 972 F.3d 838, 847 (6th Cir. 2020); United
States v. Thomas, 605 F.3d 300, 311 (6th Cir. 2010); United States v. Leake, 998 F.2d 1359,
1366 (6th Cir. 1993); see also Leon, 468 U.S. at 914. But prevailing on this theory takes more
than a perfunctory allegation. Indeed, we have repeatedly rejected claims that magistrates
abdicated their roles in this way. We, for example, held that a magistrate did not act as a “rubber
stamp” just because he failed to catch that the warrant listed the wrong address in one section of
the document. See Abdalla, 972 F.3d at 847–48. We also rejected such a claim when the
magistrate edited an affidavit on the officer’s behalf, noting that this attention to detail instead
revealed that the magistrate had reviewed the warrant request “with a critical eye.” United States
v. Warren, 365 F. App’x 635, 637 (6th Cir. 2010) (quoting Frazier, 423 F.3d at 538).
Davis’s claim here suffers from the same fate as the claims in these other cases. The
magistrate neither participated in Sivert’s investigation nor “rubber stamped” his affidavit.
Indeed, the magistrate did not even rely solely on the affidavit. Rather, he put Sivert under oath
and interrogated him about the investigation. As in our other cases, then, the record shows that

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the magistrate reviewed Sivert’s warrant request with healthy skepticism, not blanket trust. See
id.
Davis counters that the magistrate violated Ohio Rule of Criminal Procedure 41 by
failing to record Sivert’s testimony. As the Ohio Supreme Court noted, however, this rule
provides only that oral testimony will be admissible in later suppression hearings if a magistrate
records it. Dibble, 150 N.E.3d at 920. The rule did not require such a recording.
Davis also makes much of the magistrate’s opinion that Sivert had “unquestionable”
credibility based on the 25 years that they have known each other. Tr., R.147, PageID 2902. Yet
the magistrate still did not “rubber stamp” Sivert’s affidavit despite the high regard in which he
held the detective’s character. And Davis cites no caselaw holding that a judge’s favorable
opinion of a witness’s credibility alone renders the judge biased under Leon.
We affirm.

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No. 22-3603 United States v. Davis Page 15
_________________
DISSENT
_________________
RONALD LEE GILMAN, Circuit Judge, dissenting. Because the record is still devoid of
what information was conveyed to the state-court magistrate at the time Detective Sivert applied
for the search warrant in question, I am not persuaded that the testimony on remand saves the
bare-bones affidavit. I would therefore reverse the judgment of the district court and remand for
the court to consider the government’s alternative argument predicated on harmless error.
I. BARE-BONES ANALYSIS
In United States v. Leon, 468 U.S. 897, 920 (1984), the Supreme Court held that evidence
obtained pursuant to an invalid search warrant need not be suppressed “when an officer acting
with objective good faith has obtained a search warrant from a judge or magistrate and acted
within its scope.” But an officer does not act in objective good faith if the warrant is “based on
an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.’” Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975)
(Powell, J., concurring in part)). Such an affidavit has been characterized as “bare bones.” Id. at
915, 926.
When assessing an officer’s good-faith reliance on a search warrant, “[t]his court has
been unequivocal in holding that . . . ‘a determination of good faith reliance . . . must be bound
by the four corners of the affidavit.’” United States v. Waide, 60 F.4th 327, 342 (6th Cir. 2023)
(quoting United States v. Laughton, 409 F.3d 744, 751 (6th Cir. 2005)). But our court carved out
a narrow exception to this rule in United States v. Frazier, 423 F.3d 526, 534–36 (6th Cir. 2005),
for omitted information known to the affiant and revealed to the magistrate.
In Frazier, this court affirmed a district-court order denying the defendant’s motion to
suppress evidence that yielded marijuana and firearms. Id. at 529. The record in Frazier
contained highly probative information concerning the defendant’s participation in two prior
drug transactions that was omitted from the affidavit. Id. at 535. Neither party disputed that the
officers independently informed the magistrate that an informant had recorded the defendant’s

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No. 22-3603 United States v. Davis Page 16
participation in these two transactions. Id. The officers included this probative information in
five related warrant affidavits presented contemporaneously to the magistrate. Id. This court
held 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
magistrate.” Id. at 535–36 (emphasis added).
Frazier’s narrow exception was subsequently applied in United States v. Thomas,
852 F. App’x 189 (6th Cir. 2021). In that case, a magistrate evaluated two related affidavits
concerning a house and a barber shop. Id. at 191. The affidavit pertaining to the house
contained highly probative information about the defendant’s frequent meetings with a known
drug dealer that was omitted from the barber-shop affidavit. Id. at 197. There was also evidence
in the house affidavit that the drug dealer met with the defendant only when the dealer’s drug
supply was low. Id. at 197–98. Both warrants were issued the same day. Id. at 198. Because
there was no question that the magistrate was presented with the key facts relevant to each
warrant, there was no reason to believe that the magistrate did not recall and consider these key
facts omitted from the barber-shop affidavit. Id. The omitted facts were therefore permitted to
be considered under these circumstances. Thomas ultimately interpreted Frazier as standing for
the proposition that “the good-faith exception could apply where information clearly known and
considered by the magistrate, but inadvertently excluded from an affidavit, supported a finding
of probable cause.” Id. (emphasis added) (citation omitted).
In the present case, the government does not dispute that the affidavit at issue is bare
bones. See Majority Op. at 8. Reliance on the affidavit alone would therefore be objectively
unreasonable. See Leon, 468 U.S. at 923. To address this issue, we remanded this case with
instructions for the district court to hold an evidentiary hearing. United States v. Davis, 970 F.3d
650, 666 (6th Cir. 2020). We reasoned that a remand was necessary because “[n]o evidence tells
us whether [Detective] Sivert conveyed these facts [connecting Davis to the residence] under
oath to the magistrate before the magistrate issued the warrant.” Id. (citing United States v.
Beals, 698 F.3d 248, 268 (6th Cir. 2012)).

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But even after the remand, we have no clue about what material information Detective
Sivert conveyed to the magistrate, let alone information “clearly known and considered by the
magistrate.” See Thomas, 852 F. App’x at 198. The magistrate has no recollection at all of any
additional facts that Detective Sivert discussed with him. And Detective Sivert has no more than
a “belief” that he informed the magistrate about the facts tying Davis to the residence in
question.
The majority, for its part, agrees that, “[a]t best, Sivert stated a general belief that he told
the magistrate about information tying Davis to the residence.” Majority Op. at 8. But the
majority contends that Detective Sivert’s general belief provided “a modicum of evidence”
to trigger Leon’s good-faith exception. Id. This court, however, has never applied
the modicum-of-evidence analysis to settle what the magistrate was clearly told.
The modicum-of-evidence test is instead relevant only in analyzing Leon’s good-faith nexus
between criminal activity and the places to be searched. See, e.g., Laughton, 409 F.3d at 749
(observing that good faith may be found where review “turn[s] up some modicum of evidence,
however slight, to connect the criminal activity described in the affidavit to the place to be
searched”); United States v. Rose, 714 F.3d 362, 368 (6th Cir. 2013) (holding that a modicum of
evidence triggered the good-faith exception because “the . . . affidavit does . . . establish a link
between criminal activity and [the defendant] . . . .”).
Neither the majority nor the government has identified a case equating Leon’s good-faith
nexus analysis with the quantum of proof necessary to clearly show that the magistrate knew of
and considered facts omitted from an affidavit. The facts here are thus materially different from
those in the cases of Frazier, 423 F.3d at 535, and Thomas, 852 F. App’x at 191, that are cited by
the majority. Given that we lack what information Detective Sivert told the magistrate, I find no
basis for the majority’s conclusion that we may look beyond the affidavit under these
circumstances. Absent additional evidence supplementing the affidavit, then, the bare-bones
affidavit is insufficient to support a finding of good faith.

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II. DETECTIVE SIVERT’S UNREASONABLE RELIANCE
The majority’s second reason for applying Leon’s good-faith exception is because “the
magistrate bears the blame for failing to make a record of these facts [provided by Detective
Sivert].” Majority Op. at 10. To the contrary, good faith under Leon is a question of the
officer’s reasonableness, not the reasonableness of the issuing magistrate. Frazier, 423 F.3d at
533 (“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.’”) (quoting Leon, 468 U.S. at 922 n.23); Thomas, 852 F. App’x at
198 (“[G]ood-faith is ultimately a question of officer reasonableness in executing the warrant,
not the reasonableness of the issuing magistrate.”).
Consequently, irrespective of the magistrate’s failure to transcribe Detective Sivert’s oral
testimony (whatever it was), the blame for relying on an undisputedly bare-bones affidavit falls
on Detective Sivert. And bare-bones affidavits do not fall within Leon’s good-faith exception to
the exclusionary rule. United States v. Reed, 993 F.3d 441, 450 (6th Cir. 2021).
III. HARMLESS ERROR
Alternatively, the government argues that affirming on the basis of harmless error would
be appropriate because the government had already obtained phone records, text messages, and
“compelling evidence” proving that Davis sold the heroin that caused Castro-White’s death. The
district court did not reach the government’s harmless-error argument because the court found
that Leon’s good-faith exception applied. See United States v. Davis, No. 1:16CR260, 2022 WL
2314009, at *10 (N.D. Ohio June 28, 2022). I would remand this case so that the district can
address in the first instance whether the government’s error was harmless in light of the other
evidence implicating Davis in Castro-White’s death. See Albemarle Paper Co. v. Moody,
422 U.S. 405, 436 (1975) (“[This] is a matter best decided, in the first instance, by the District
Court. That court will be free to take . . . new evidence . . . .”).

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IV. CONCLUSION
In sum, because Detective Sivert’s testimony on remand does not shed any light on why
he relied on a bare-bones affidavit, I believe that the Leon good-faith exception does not apply.
I would therefore reverse the judgment of the district court and remand this case for the court to
consider the government’s alternative argument predicated on harmless error. Accordingly,
I respectfully dissent.

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