UNITED STATES of America, Plaintiff-Appellee, v. Demetrius PRUITT, Defendant-Appellant, 458 F.3d 477

McKEAGUE, J., delivered the opinion of the court, in which SILER, J., joined. CLAY (pp. 485-91), delivered a separate concurring opinion. OPINION McKEAGUE, Circuit Judge. Defendant-appellant Demetrius Pruitt appeals the district court’s grant of the Government’s motion for reconsideration of Pruitt’s motion to suppress evidence obtained during a protective sweep of a third-party’s residence. For the reasons that follow, the ruling of the district court is affirmed. I.

BACKGROUND In June of 2004, Demetrius Pruitt was on parole following his conviction for possession of cocaine, possession of marijuana, and possession of drug-use paraphernalia in violation of Ohio law. Pruitt became a fugitive from justice after failing to report to his parole officer in July of 2004. After law enforcement officials were unable to locate Pruitt at his listed address, an arrest warrant was issued in the Lorain County Common Pleas Court. During this time period, the U.S.

Marshal’s service was conducting “Operation LASSO” in Lorain County in conjunction with the Lorain Police Department and the Adult Parole Authority. The collaborative program was designed to arrest potentially violent fugitives. Following issuance of the arrest warrant, officials involved with the initiative began an investigation of Pruitt’s whereabouts. In August 2004, an anonymous female caller contacted Burt Fitzgerald, Pruitt’s parole officer. She told Fitzgerald that Pruitt was no longer residing at the address that Pruitt had provided, but instead was residing at 2652 Meister Road, Lorain, Ohio.

Fitzgerald believed, but did not verify, that the caller was Pruitt’s ex-girlfriend, a woman he had spoken to previously in either December 2003 or January 2004. The caller told Fitzgerald that she had seen Pruitt at the Meister Road address within the past few hours, and that Pruitt was in possession of drugs and a firearm. Fitzgerald reported the anonymous tip to the LASSO officers, who began surveillance in the Meister Road area. Shortly after arriving in the area, the officers saw a man knock and enter the Meister Road home.

The man exited the home a few minutes later, and sped away from the scene, prompting the officers to conduct a traffic stop. The driver identified himself as “Freddie Garcia” and produced a driver’s license and recited a social security number. The officers showed the driver a photograph of Pruitt, who he identified as “Meaty.” He stated that “Meaty” was inside the residence, and that “Meaty” had refused to sell him crack cocaine on credit. He stated that there was crack cocaine in the Meister Road residence.

Unbeknownst to the officers, the driver was not Freddie Garcia, but was Thomas Garcia, who had possession of his brother’s driver’s license and knowledge of his social security number. The officers were unaware of this fraudulent identity until just prior to the suppression hearing in the district court. After receiving the information from Garcia, the officers went to the Lorain County Municipal Court to seek a search warrant for 2652 Meister Road. The prosecutor prepared a form affidavit after Detective Earl related the anonymous tip and Garcia’s statement, which Earl then signed without reviewing. The

section of the affidavit requiring the affiant to provide the facts upon which the warrant should issue was left blank. Subsequently, the detective presented the defective affidavit to the Municipal court. Detective Earl recited the factual basis for the search warrant under oath, however, no transcript of his sworn statement was prepared. Following Earl’s testimony, the search warrant was issued. Earl notified the LASSO team that the warrant had been issued and the team entered the Meister Road residence. Upon entry, the officers found Pruitt hiding in a kitchen closet.

Pruitt was arrested and a protective sweep of the premises was conducted. The officers found several bags of crack cocaine, marijuana, a wallet, and a loaded .25 caliber pistol all within plain view. Pruitt refused to allow the officers to search the premises, stating that it “wasn’t his place,” although he admitted to owning the contraband that the officers had collected during the protective sweep. The LASSO team returned to the Municipal Court to successfully obtain another search warrant for the premises, because Pruitt disclaimed ownership of the property.

Pruitt was indicted on December 20, 2004, for being a felon in possession of a firearm and for possession with intent to distribute crack cocaine, in violation of 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(

C) respectively- On December 20, 2004, Pruitt moved to suppress the evidence obtained in the search of the Meister Road Residence. Pruitt claimed that the officer’s reliance on Garcia’s statements was improper because he had provided false identification to the police, and that Garcia’s credibility was lacking because he admitted to police that he was trying to purchase crack cocaine. Pruitt also argued that the “bare bones” affidavit, lacking any factual basis upon which a warrant could issue, was so defective that it could not be saved by the good faith exception of United States v.

Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). On March 16, 2005, the district court granted Pruitt’s motion to suppress, finding that he had a limited expectation of privacy in the Meister Road residence pursuant to Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The court also found that the search warrant lacked indicia of probable cause because there were no facts listed in the affidavit, and the sworn statement of detective Earl was not transcribed.

Thus, the LASSO team could not have reasonably relied on the search warrant in order to meet the good faith exception of Leon. On March 17, 2005, the Government moved the district court to reconsider the suppression order. The Government relied on this court’s published opinion in United States v. Buckner, 717 F.2d 297 (1983). The district court found that while the relevant portion of Buckner was dicta, it was still worthy of consideration and on March 18, 2005, the court reversed its grant of Pruitt’s motion to suppress. This decision was timely appealed. II.

JURISDICTION AND STANDARD OF REVIEW The district court properly exercised subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. When reviewing the denial of a motion to suppress, this Court reviews a “district court’s findings of fact for clear error and its conclusions of law de novo,” considering the evidence “in the light most likely to support the district court’s decision.” United States v.

Hurst, 228 F.3d 751, 756 (6th Cir.2000) (citations omitted). “A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir.1999). III. ANALYSIS A.

The Search Warrant Issued for 2652 Meister Road was Invalid An affidavit underlying the issuance of a search warrant must provide information sufficient to establish “a substantial basis for determining the existence of probable cause.” Leon, 468 U.S. at 915, 104 S.Ct. 3405 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In the absence of an affidavit containing the essential facts, a warrant may be obtained in reliance on sworn testimony, but such testimony must be recorded by a court reporter, and the judge must file a transcript with the clerk.

Fed.R.Crim.P. 41(2)(d)(B)-(C). Pruitt contends that the affidavit filed by Detective Earl constituted an invalid “bare bones” affidavit because there were no facts establishing the grounds for the issuance of the search warrant, as required by Leon. Further, Pruitt argues that Earl’s oral recitation of the facts was inadequate because no court reporter was present to transcribe the testimony and no transcript was entered as required by Federal Rule of Criminal Procedure 41(d)(2)(C).

The Government argues that despite the failure of the detective to follow the correct procedure, the LASSO team relied on the warrant in good faith, and the search is protected under the Leon good faith exception. The Leon good faith exception allows for the inclusion of evidence obtained by an invalid warrant if the officers reasonably and in good faith relied on the warrant at the time the search was conducted. Leon, 468 U.S. at 922, 104 S.Ct. 3405.

Here, the district court properly ruled that the officers could not have had a good faith belief that the warrant was valid because the warrant was obtained with a “bare bones” affidavit, and no transcript of Earl’s sworn statement was recorded by the Court. (Order of the district court, JA 76) Under Leon, such a bare bones affidavit cannot support a reasonable belief on the part of law enforcement officials that a warrant is valid. Leon, 468 U.S. at 915, 104 S.Ct. 3405. B.

Appellant’s Fourth Amendment Rights Were Not Violated Pruitt asserts that the officer’s entry into the Meister Road home violated his Fourth Amendment rights, because the officers did not have a valid search warrant, and relies on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In Steagald, police entered Steagald’s home with a valid arrest warrant for another individual, Ricky Lyons. Id. at 206, 101 S.Ct. 1642. While on the premises the officers observed a substance they believed to be cocaine, as well as other contraband. Id.

Based on this observation, the officers obtained a search warrant for the home that led to the discovery of 43 pounds of cocaine. Steagald was arrested and indicted on federal drug charges based on this evidence. Id. at 205-06, 101 S.Ct. 1642. Steagald moved to suppress the evidence on the ground that it was illegally obtained because agents failed to procure a search warrant for the home, instead relying on Lyons’s arrest warrant to execute what officers believed to be a lawful entry. Id. at 207, 101 S.Ct. 1642. Steagald argued that his Fourth Amendment privacy rights were violated by the unwarranted search. Id.

The Court agreed, and stated: “[W]hile the warrant in this case may have protected Lyons from an unreasonable seizure, it did absolutely nothing to protect petitioner’s privacy interest in being free from an unreasonable invasion and search of his home.” Id. at 213, 101 S.Ct. 1642. In our case, Pruitt argues that the lack of a valid search warrant violated his Fourth Amendment rights, because the police entered his girlfriend’s home to execute Pruitt’s arrest warrant. We find the holding in Steagald easily distinguishable here.

In Steagald, the Court carefully circumscribed the issue, stating “the narrow issue before us is whether an arrest warrant — as opposed to a search warrant — is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances.” Id. at 212, 101 S.Ct. 1642 (emphasis added). The Court was not considering the Fourth Amendment rights of the subject of the arrest warrant, but concerned itself with the homeowner’s privacy rights.

The Steagald Court ruled that the intrusion and search of a third-party’s home in reliance on the arrest warrant issued for another individual violated the Fourth Amendment privacy rights of the homeowner. Thus, Steagald does not resolve the issue before us; namely whether officers may rely on an arrest warrant, coupled with the reasonable belief that the subject of the warrant is within a third-party’s residence, to enter that residence to execute the warrant. We have already considered this issue, albeit in dicta, in Buckner, 717 F.2d 297 (decided on standing).

In Buckner, officers entered Buckner’s mother’s home, armed only with an arrest warrant and the reasonable belief that Buckner was on the premises. Id. at 299. In considering Buckner’s motion to suppress, we stated that because the defendant was the individual named on the arrest warrant, we were required to apply the holding of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) rather than the ruling in Steagald.

In Payton, the Court held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603, 100 S.Ct. 1371. We stated in Buckner. Under Payton, the police could have entered the defendant’s own home if they had a warrant for his arrest and reason to believe that he was inside. It would be illogical to afford the defendant any greater protection in the home of a third party than he was entitled to in his own home.

That illogical result, however, is precisely what would happen if we accepted the defendant’s contention that Steagald required a search warrant in this case. Buckner, 717 F.2d at 300. As the district court properly noted, the rationale underlying Buckner is applicable here. It is illogical to extend to Pruitt greater rights of privacy in the Meister Road home of his girlfriend than he would have been afforded in his residence of record under Pay-ton.

Pruitt argues that even if he did not have a privacy interest in the Meister Road residence requiring a search warrant, the police did not have reason to believe that he was in the home at the time of his arrest. He asserts that a circuit-split exists regarding the standard required for establishing a “reasonable belief’ upon which officers may rely in order to enter a third-party’s dwelling with only an arrest warrant. Pruitt urges this court to adopt the Ninth Circuit’s ruling in United States v. Gorman, 314 F.3d 1105 (9th Cir.2002).

In Gorman, the court ruled that probable cause was required to support the reasonable belief that the subject of an arrest warrant was in a third-party’s residence. Id. at 1111-15. Pruitt contends that the officers here could not have had probable cause based only on an uncorroborated anonymous tip and the statement of an unknown and untested drug-seeking informant who provided the officers with fraudulent identification. (Appellant’s Br. at 24). Pruitt argues that such evidence is insufficient to meet the probable cause standard enunciated in Gorman.

In response, • the Government argues that while a circuit-split does exist, a majority of the circuits that have ruled on the issue have determined that a lesser reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant, and that the officers here had adequate information in this case to meet this standard. We agree. Reasonable belief is established by looking at common sense factors and evaluating the totality of the circumstances. See United States v. McKinney, 379 F.2d 259, 264 (6th Cir.1967); United States v.

Magluta, 44 F.3d 1530, 1535 (11th Cir.1995); Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir.1999). In McKinney, we held that “a search warrant [was] not necessary to execute an arrest warrant [on the premises of a third party]” when there is a reasonable belief that the suspect is on the premises. 379 F.2d at 263. In that case, we found that an anonymous tip coupled with information collected a month prior to arrest about the subject’s presence around the premises was sufficient to establish a reasonable belief that the suspect was on the premises. Id. at 264.

In this case, the LASSO team evaluated the totality of the circumstances, and formulated a reasonable belief that Pruitt was present at 2652 Meister Road. The team relied on the anonymous tip given to Pruitt’s parole officer, Garcia’s identification of Pruitt as “Meaty” in a photograph, and his assertion that “Meaty” was in the residence at that time selling drugs. As in McKinney, the Lasso team considered Pruitt’s background information, including his drug dealing past and his street name, to develop a reasonable belief that Pruitt was in the residence.

Our decision is consistent with the majority of our sister circuits who have ruled that consideration of common sense factors and the totality of the circumstances is sufficient to formulate a reasonable belief that a suspect is on the premises. See United States v. Route, 104 F.3d 59, 62-3 (5th Cir.1997) (finding that sound of television on the inside of the house and the presence of a car in the driveway was sufficient to form basis of the reasonable belief that the suspect was in the home); United States v.

Risse, 83 F.3d 212, 216-17 (8th Cir.1996) (deciding that telephone call to residence confirming that suspect was there was far beyond what is necessary to establish reasonable belief); United States v. Lauter, 57 F.3d 212, 215 (2d Cir.1995) (holding that informant’s tip that suspect was unemployed and liked to sleep late was sufficient to establish reasonable belief that suspect was in apartment); United States v. Edmonds, 52 F.3d 1236, 1248 (3d.

Cir.1995) (deciding that surveillance in front of apartment and observation that no one left apartment during surveillance was sufficient to constitute reasonable belief that suspect was in apartment); United States v. Magluta, 44 F.3d at 1535-38 (finding that information that suspect’s associate was a frequent visitor to the residence, that associate’s car was parked outside, and that suspect’s car was parked outside was sufficient to support reasonable belief that suspect was in residence); United States v.

Thomas, 429 F.3d 282, 286 (D.C.Cir.2005) (deciding that early morning hour of entry was sufficient to establish reasonable belief that suspect would be home); and McPheters, 172 F.3d at 1226-27 (holding that defendant’s prior statement to officer that he lived with his mother, presence of truck belonging to defendant’s known associate outside of the house, reports of his presence at residence in day’s prior to entry, and officer’s assertion that suspect would probably be home during day because he was unemployed was sufficient to establish the reasonable belief that suspect was in the residence).

Accordingly, we hold that an arrest warrant is sufficient to enter a residence if the officers, by looking at common sense factors and evaluating the totality of the circumstances, establish a reasonable belief that the subject of the arrest warrant is within the residence at that time. Our holding contrasts with that of the Ninth Circuit, which alone has ruled that reasonable belief is the equivalent of probable cause in determining whether a suspect is within the residence. United States v.

Gorman, 314 F.3d 1105, 1111 (9th Cir.2002) (“ ‘the reason to believe,’ or reasonable belief, standard of Payton ... embodies the same standard of reasonableness inherent in probable cause.”). The concurring opinion suggests that we should adopt this ruling. In support of this proposal, the concurrence relies on the Supreme Court’s likening of probable cause to a reasonable ground for belief (of guilt) discussed in Maryland v. Pringle, 540 U.S. 866, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (quoting Brinegar v. U.S., 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) “[t]he substance of all the

definitions of probable cause is a reasonable ground for belief of guilt”). We decline to adopt this view for two reasons. First, we do not agree with the concurrence’s assertion that a “reasonable ground for belief of guilt” is the grammatical analogue to a reasonable belief that an individual is located within a premises subject to search. These are two entirely different inquiries. Second, the dissent disregards the majority of our sister circuit’s holdings, as well as the D.C.

Circuit’s assertion that it is more than “likely ... that the Supreme Court in Payton used a phrase other than ‘probable cause’ because it meant something other than ‘probable cause.’ ” Thomas, 429 F.3d at 286 (referring to “[tjhus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives , when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603, 100 S.Ct. 1371) (emphasis added). We find the D.C. Circuit’s analysis convincing.

The Payton Court’s use of “probable cause” in describing the foundation for an arrest warrant and its use of “reason to believe” in describing the basis for the authority to enter a dwelling shows that the Court intended different standards for the two. Had the Court intended probable cause to be the standard for entering a residence, it would have either expressly stated so or used the same term for both situations. Instead, its use of different terms indicates that it intended different standards apply. By way of example, in Maryland v.

Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) the Supreme Court held: [B]y requiring a protective sweep to be justified by probable cause to believe that a serious and demonstrable potentiality for danger existed, the Court of Appeals of Maryland applied an unnecessarily strict Fourth Amendment standard. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

Id. at 337,. 110 S.Ct. 1093 (emphasis added). While Buie addressed the standard to be applied by police for conducting protective sweeps, it is evident that the Supreme Court does not use the terms probable cause and reasonable belief interchangeably, but rather that it considers reasonable belief to be a less stringent standard than probable cause. See also United States v.

Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (finding that a reasonable suspicion as embodied in the Fourth Amendment requires less suspicion than for establishing probable cause for purposes of determining reasonableness of officer’s belief that suspects were transporting illegal drugs). We therefore conclude that reasonable belief is a lesser standard than probable cause, and that reasonable belief that a suspect is within the residence, based on common sense factors and the totality of the circumstances, is required to enter a residence to enforce an arrest warrant. IV.

CONCLUSION For the aforementioned reasons, the ruling of the district court granting the Government’s motion for reconsideration should be AFFIRMED. . The officers recognized "Meaty” as Pruitt's street name. . In fact, the Steagald Court carefully considered the distinct Fourth Amendment rights of the subject of an arrest warrant and those of a third-party homeowner.

An arrest warrant protects the subject of the warrant from an unreasonable seizure of his person, while a search warrant protects "an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police.” Id. at 213, 101 S.Ct. 1642. . In support of its ruling, the Ninth Circuit cited its own rulings in Watts v. County of Sacramento, 256 F.3d 886 (9th Cir.2001), United States v. Phillips, 497 F.2d 1131 (9th Cir.1974), United States v. Howard, 828 F.2d 552 (9th Cir.1987), United States v.

Winsor, 816 F.2d 1394, 1399 (9th Cir.1987), rev’d en banc, 846 F.2d 1569, 1574 (9th Cir.1988), and the dissenting opinion in United States v. Underwood, 717 F.2d 482, 486-492 (9th Cir.1983) (en banc), the Eighth Circuit’s ruling in United States v.

Clifford, 664 F.2d 1090, 1093 (8th Cir.1981) ("Payton authorizes entry on the basis of the existing arrest warrant for the defendant and probable cause to believe that the defendant was within the premises”), and Justice White’s non-binding dissenting opinion in Payton stating that: "under [the majority’s] decision, the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely grounds to believe the suspect is within the dwelling.” Payton, 445 U.S. at 616 n. 13, 100 S.Ct. 1371 (White, J., dissenting).

In doing so, the Ninth Circuit not only overlooked the Eighth Circuit's more recent ruling in Risse, 83 F.3d at 216 (finding that a reasonable belief, even if incorrect in fact, is all that is necessary to enter a suspect’s dwelling), but disregarded its own majority ruling in Underwood, 717 F.2d at 483-86, suggesting that the reasonable belief standard set forth by Payton, had been met, based on an informant's tip, and was sufficient to protect a suspect's Fourth Amendment rights.