Sixth Circuit clarifies clear‑error review for §2D1.1(b)(12)’s “maintenance” prong and reaffirms probable cause from a single “come‑and‑return” controlled buy

Introduction

In United States v. Jayon Florence, No. 24-3729 (6th Cir. Sept. 4, 2025), a published decision authored by Judge Thapar (with Judge Readler joining and Judge Bloomekatz concurring in the judgment), the Sixth Circuit addressed two recurring criminal-law issues:

When does a single controlled buy furnish probable cause to search a residence not conclusively shown to be the suspect’s home?
What is the proper standard of appellate review for the “maintenance” prong of the Sentencing Guidelines’ drug-premises enhancement, U.S.S.G. § 2D1.1(b)(12)?

The case arose from an ATF investigation that observed Florence leave a house on Melbourne Road, drive to a pre-arranged location to sell fentanyl and cocaine to an undercover officer, and immediately return to the same house. A federal magistrate issued a search warrant for the residence, and agents recovered nine firearms, hundreds of rounds of ammunition, body armor, scales, a pill press, over thirty grams of a fentanyl mixture, four pounds of suspected marijuana, and $59,507 in cash.

Florence moved to suppress the fruits of the warrant and, after pleading guilty to four drug and firearm counts, challenged a two-level enhancement for “maintaining a premises” for drug distribution. The district court denied suppression and applied the enhancement, imposing a 106-month sentence. Florence appealed both rulings.

Summary of the Judgment

Suppression/Probable Cause: Affirmed. Relying on the Sixth Circuit’s en banc decision in United States v. Sanders, 106 F.4th 455 (6th Cir. 2024), the court held that officers had probable cause to search the Melbourne Road residence after observing Florence leave the house, consummate a drug sale, and return to the house. The opinion underscored that one observed “come-and-return” controlled buy “plainly” sufficed, and noted additional nexus from Florence’s contemporaneous text that “the s*** isn’t going anywhere.”
Sentencing/Drug-Premises Enhancement: Affirmed. The court held that clear-error review applies to the district court’s application of the maintenance prong of § 2D1.1(b)(12) to particular facts. Applying that deferential standard, the court held the district court did not clearly err in finding that Florence maintained the premises, emphasizing the substantial quantities of drugs, drug tools, firearms, and cash stored there as circumstantial proof of de facto control.
Concurrence: Judge Bloomekatz concurred in the judgment but would have affirmed the suppression ruling on the Leon good-faith exception rather than on probable cause, and framed the enhancement issue as presenting both a (de novo) legal question—what facts may be considered under the maintenance prong—and a (clear-error) factual question—whether Florence had free access to the premises.

Analysis

1) Precedents cited and how they shaped the outcome

Probable cause and nexus

Illinois v. Gates, 462 U.S. 213 (1983): Supplies the “fair probability” and totality-of-the-circumstances framework for probable cause, and the requirement that affidavits establish a “nexus” between the place to be searched and the evidence sought.
United States v. Sanders, 106 F.4th 455 (6th Cir. 2024) (en banc): Central to the panel’s suppression ruling. Sanders held that officers had probable cause to search an apartment where they observed the defendant leave the apartment, conduct a controlled buy, and return. The Florence majority reads Sanders as establishing that a single “come-and-return” controlled buy alone “plainly” suffices for probable cause; additional facts “add to what is already obvious.”
United States v. Ellison, 632 F.3d 347 (6th Cir. 2011): Emphasized the nexus requirement (connection between place and evidence), reinforcing that officers must tie criminal activity to the searched location.
United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006): Distinguished. McPhearson rejected probable cause to search a home where the only link was the defendant’s arrest outside his residence with drugs on his person and the “known drug dealer” inference. In Florence, by contrast, the nexus came from a controlled buy and direct surveillance of “come-and-return,” not merely the suspect’s status or presence outside the home.
Other circuit precedents noted: United States v. Whitlow, 134 F.4th 914 (6th Cir. 2025) (probable cause is not a “difficult” standard); United States v. Christian, 925 F.3d 305 (6th Cir. 2019) (en banc); United States v. Allen, 211 F.3d 970 (6th Cir. 2000) (en banc) (admonitions about valuing what an affidavit contains rather than what it lacks).

Good-faith exception (concurrence)

United States v. Leon, 468 U.S. 897 (1984): Judge Bloomekatz would affirm on Leon’s good-faith exception, finding the affidavit was not “bare bones” and showed a minimally sufficient nexus, even if probable cause were debatable.
United States v. Ardd, 911 F.3d 348 (6th Cir. 2018): Supports using good-faith to affirm without deciding probable cause where the affidavit is not fatally deficient.
United States v. Burrell, 114 F.4th 537 (6th Cir. 2024): Addresses “bare bones” affidavits and “minimally sufficient nexus,” a standard the concurrence finds satisfied here.

Sentencing: § 2D1.1(b)(12)’s “maintenance” prong and standard of review

Buford v. United States, 532 U.S. 59 (2001): Anchors the majority’s holding that fact-bound guideline applications warrant deferential review. The Court endorsed clear-error review where functional, case-specific evaluations predominate.
U.S. Bank v. Village at Lakeridge, 583 U.S. 387 (2018): Reinforces that mixed questions “immersing courts in case-specific factual issues” are typically reviewed for clear error.
United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024): Recognizes clear-error as the standard for “fact-bound mixed questions” in the Sixth Circuit.
United States v. Tripplet, 112 F.4th 428 (6th Cir. 2024): Applied de novo review to the primary use prong of § 2D1.1(b)(12), but did not address the maintenance prong. Florence distinguishes Tripplet and underscores that different prongs can carry different standards of review.
United States v. Brown, 131 F.4th 337 (6th Cir. 2025): Illustrates that different standards can apply to different parts of the same guideline.
United States v. Johnson, 737 F.3d 444 (6th Cir. 2013): Sets out the three elements for the drug-premises enhancement—knowledge, maintenance, and purpose.
United States v. Taylor, 85 F.4th 386 (6th Cir. 2023): Identifies de facto control as the touchstone for maintenance when the defendant lacks a formal possessory interest.
United States v. Stubblefield, 682 F.3d 502 (6th Cir. 2012): Government bears the burden of proof for enhancements by a preponderance.
Unpublished comparators:
- United States v. Bennett, 2024 WL 966367 (6th Cir. Mar. 6, 2024): Affirmed maintenance where defendant lacked formal interest in his girlfriend’s house but stored heroin and “additional indicia of drug trafficking.” Florence uses Bennett’s logic.
- United States v. Whiteside, 747 F. App’x 387 (6th Cir. 2018): Reversed maintenance where the evidence of control was equivocal (multiple occupants, conflicting testimony). Florence distinguishes Whiteside and emphasizes the limiting role of clear-error review.
- United States v. Broadnax, 777 F. App’x 137 (6th Cir. 2019), and United States v. Hernandez, 721 F. App’x 479 (6th Cir. 2018): Reflect conflicting lines on standard of review; Florence resolves the question for the maintenance prong in favor of clear-error.

2) The court’s legal reasoning

Probable cause to search the residence

The majority treats the probable cause analysis as “straightforward” under Sanders. When officers observe a suspect leave a location, sell contraband, and immediately return to that location, there is a fair probability that evidence of crime will be found at that location. Sanders deemed one such “come-and-return” instance “plainly” sufficient, and the Florence majority applies that holding directly. The majority adds that Florence’s contemporaneous statements (via text) that “the s*** isn’t going anywhere” while apparently inside the residence bolstered the nexus, even though that extra proof was not necessary under Sanders.

The majority rejects arguments that the absence of a confidential informant’s tip or multiple buys defeats nexus; Sanders explicitly stated there is “no model fact pattern” for probable cause. It also clarifies that residency is not required—probable cause can exist even if the affidavit does not establish that the suspect lives at the location (again, mirroring Sanders).

McPhearson’s “known drug dealer” inference is distinguished: that case lacked any fact connecting the home to drug activity. Here, the direct observation of “come-and-return” after arranging a sale supplies the nexus; the mere possibility that drugs were stored in the car does not negate the “fair probability” that they were also in the residence.

Concurrence’s narrower path: good-faith exception

Judge Bloomekatz would avoid the probable cause question and affirm on Leon’s good-faith exception. She emphasizes that Sixth Circuit cases recognizing “come-and-return” as contributing to nexus typically also involved additional facts (e.g., multiple buys, informant tips, the premises being the defendant’s known residence). As she sees it, adopting a rigid rule that a single “come-and-return” always suffices risks ignoring context. Nonetheless, she concludes the affidavit here—combining the single “come-and-return” observation with the texts—showed a “minimally sufficient nexus,” defeating any “bare bones” characterization and making suppression inappropriate on good-faith grounds.

Standard of review for the “maintenance” prong

The panel takes up a recurring appellate-review question: whether application of § 2D1.1(b)(12)’s maintenance prong to a given record is reviewed de novo or for clear error. Drawing on Buford and Lakeridge, the majority holds that it is a fact-bound mixed question turning on “factual nuance” about “control,” best assessed by the district judge, and thus subject to clear-error review. The opinion distinguishes Tripplet, which used de novo review for the separate primary use prong, and underscores that different prongs can entail different standards. The court also notes that, even when facts are not disputed, Buford’s logic still favors deference in such granular, context-sensitive guideline applications.

Applying the maintenance prong to the facts

Under clear-error review, the district court’s finding that Florence maintained the premises was upheld. Key points:

De facto control inferred from storage of valuable contraband: The volume and nature of items—nine firearms, substantial drugs, scales with residue, a pill press, body armor, a money counter, and nearly $60,000—strongly implied Florence could freely access the premises and control activities there. As the majority put it, one would not leave valuables “in a garage [one] had no control over.”
Familial ownership not dispositive: The home was owned by Florence’s father, which complicates the control analysis, but does not preclude de facto control; familial trust can functionally substitute for formal possessory interests. The majority, however, expressly disavows any suggestion of the father’s complicity.
Case comparisons: The court analogizes to Bennett (unpublished) where the enhancement applied at a girlfriend’s home given contraband and drug-trafficking indicia, and distinguishes Whiteside where evidence tying the defendant to control of the premises was equivocal and the jury’s acquittal injected uncertainty. Even if another judge could have decided differently on similar facts, that would not amount to clear error.

Concurrence’s framing of the enhancement issue

Judge Bloomekatz would parse the enhancement challenge into:

Legal question (de novo): May courts consider the quantity of contraband when assessing “maintenance”? She answers yes—contraband volume, though often discussed under the “purpose” prong, also supports inferences of control.
Factual question (clear error): Did Florence effectively have free access? She agrees the district court did not clearly err, noting Florence admitted the contraband was his and—critically—defense counsel conceded his ability to come and go.

3) Impact and forward-looking implications

Probable cause and warrants

Reaffirmed strength of “come-and-return” surveillance: The majority solidifies the reading of Sanders that a single observed “leave-sell-return” can, by itself, establish a sufficient nexus to the location. Practically, officers who document one clean “come-and-return” controlled buy now have robust support for a residential warrant in the Sixth Circuit, even if the suspect’s residency is uncertain.
Good-faith backstop: The concurrence underscores that, at a minimum, a “come-and-return” plus modest corroboration (e.g., contemporaneous texts) will defeat suppression under Leon’s good-faith exception. This will make suppression motions on close nexus facts harder to win.
No requirement to eliminate alternative explanations: Citing Sanders, the court reiterates that probable cause does not require refutation of every alternative (e.g., drugs might be solely in the car). The “fair probability” standard tolerates uncertainty.
Care with bright lines: Although the majority reads Sanders broadly, the concurrence cautions against a rigid, context-free rule. Litigants should remain attentive to totality-of-circumstances arguments, especially where “come-and-return” evidence is thin or context suggests innocent explanations.

Sentencing: § 2D1.1(b)(12) maintenance prong

New appellate-review rule (within the Sixth Circuit): Application of the maintenance prong to a given set of facts is reviewed for clear error. This is the most concrete doctrinal development in Florence. It will be significantly harder to overturn a district court’s maintenance finding on appeal, particularly in “close call” cases.
Contraband as circumstantial proof of control: Both the majority and concurrence endorse the inference that storing large amounts of contraband and trafficking tools at a location supports de facto control. Prosecutors will rightly emphasize such evidence. Defense counsel should build a counter-record (limited access, shared spaces, lack of keys, need to be admitted, short duration) to negate the inference.
Differentiating the prongs matters: Tripplet’s de novo review for the “primary use” prong does not carry over to “maintenance.” Counsel must tailor arguments and expectations accordingly.

Complex concepts simplified

Probable cause: A practical, non-technical judgment that there is a fair probability evidence of a crime will be found in the place to be searched. It does not require proof beyond a reasonable doubt, nor elimination of all innocent explanations.
Nexus: The specific connection between the suspected criminal activity and the place to be searched. In drug cases, “come-and-return” surveillance during a controlled buy is strong nexus evidence.
“Come-and-return” evidence: Officers see a suspect leave a location, conduct a drug sale, and immediately return to the same location. Courts treat this pattern as probative that the location houses drugs, proceeds, or trafficking tools.
Leon good-faith exception: Even if a warrant ultimately lacked probable cause, suppression is inappropriate if officers relied on the warrant in objective good faith. An affidavit is not “bare bones” if it shows a minimally sufficient nexus with particularized facts.
Standard of review—de novo vs. clear error:
- De novo: The appellate court decides the issue anew, with no deference (typical for pure legal questions).
- Clear error: The appellate court defers to the district court’s findings unless left with the firm conviction a mistake has been made (reserved for fact-intensive or mixed questions dominated by factual nuance).
U.S.S.G. § 2D1.1(b)(12): Adds two levels if the defendant (1) knowingly (2) opens or maintains any place (3) for the purpose of manufacturing or distributing controlled substances. “Maintenance” focuses on control over the premises; “purpose” focuses on drug-related use.
De facto control: Control without formal ownership or lease—shown by free access, ability to regulate activities, storage of significant personal or criminal items, duration and continuity of presence, or protective measures.
Preponderance of the evidence: More likely than not; the government’s burden to prove enhancements at sentencing.

Practical guidance for future cases

For law enforcement and prosecutors:
- Document “come-and-return” controlled buys; one clean sequence strongly supports a residential warrant under Sixth Circuit law.
- Add contemporaneous communications (texts/calls) and any observations tying the suspect to the premises to avoid “bare bones” challenges.
- At sentencing, build a record showing de facto control: frequency of access, keys/codes, who can admit whom, where contraband was found, and the presence of trafficking tools and cash.
For defense counsel:
- Attack “bright-line” characterizations; emphasize totality of circumstances and alternative contexts for short stays (e.g., worksite, family gatherings) to weaken the nexus.
- For § 2D1.1(b)(12), marshal evidence limiting control (no key, no exclusive areas, others’ dominion, short duration), and preserve legal objections about what evidence may be considered under the “maintenance” prong.
- Be aware that under Florence, the “maintenance” application is reviewed for clear error—develop a robust factual record in the district court, because appellate reversal will be difficult.

Conclusion

United States v. Florence delivers two important takeaways for Sixth Circuit practitioners. First, on the Fourth Amendment front, the court reaffirms that a single “come-and-return” controlled buy can establish probable cause to search a residence even where residency is unproven, particularly when coupled with contemporaneous statements suggesting control over the drugs. Although the concurrence counsels caution against a rigid rule and would resolve the case under Leon’s good-faith exception, the published majority opinion fortifies Sanders’s broad reading of nexus in this context.

Second—and most consequential as a matter of new circuit law—the court clarifies that appellate courts review a district court’s application of § 2D1.1(b)(12)’s maintenance prong for clear error. That deference will make it harder to overturn drug-premises enhancements where the record shows de facto control, especially through the storage of substantial contraband and trafficking tools. The opinion also confirms that such contraband evidence is probative of control, not only of illicit purpose.

Together, these rulings streamline warrant practice in controlled-buy investigations and set a deferential framework for reviewing drug-premises enhancements—developments that will shape both police procedures and sentencing litigation across the Sixth Circuit.