“Conscious Abandonment Equals Waiver” – United States v. Scales and the Sixth Circuit’s Clarification on Government Waiver of Probable-Cause Arguments

Introduction

United States v. Jeffrey L. Scales, No. 24-5905 (6th Cir. July 21, 2025), arises from a narcotics investigation that culminated in a search warrant for an apartment in Knoxville, Tennessee. Although the substantive dispute centered on whether the warrant affidavit established probable cause or, alternatively, could be salvaged by the good-faith exception, the Court of Appeals seized the occasion to craft an important procedural rule: when the government affirmatively tells the district court it will not pursue a probable-cause argument, the issue is irrevocably waived on appeal.

The ruling thus delivers a two-layered precedent:

Procedural: Clarifies that “conscious abandonment” of an argument below constitutes waiver, precluding later appellate revival—even by the prosecution.
Substantive: Re-affirms that a “minimally sufficient nexus,” bolstered by partial corroboration of a confidential informant’s tip, permits officers to rely on a warrant in objective good faith, thereby shielding evidence from suppression.

The decision therefore instructs prosecutors to vigilantly preserve arguments and reminds defense counsel of a sharpened waiver doctrine they can deploy strategically.

Summary of the Judgment

The Sixth Circuit, per Judge Bloomekatz (joined by Judges Batchelder and Gibbons), affirmed the district court’s denial of Scales’s motion to suppress. The panel held:

Waiver: The government waived its probable-cause argument by expressly declining to object to the magistrate judge’s contrary finding and telling the district court it “ultimately do[es] not object.” Under Sixth Circuit precedent, such intentional abandonment is waiver—not mere forfeiture—so the appellate court was barred from revisiting probable cause.
Good-Faith Exception Upheld: Despite the assumed absence of probable cause, the affidavit was not “bare bones.” The confidential informant’s detailed tip, corroborative traffic-stop evidence (currency, drugs, firearms, and a key to the apartment), and the affiant’s experience supplied a minimally sufficient nexus. Consequently, officers could objectively rely on the warrant, and suppression was unwarranted.

Analysis

1. Precedents Cited and their Influence

United States v. Leon, 468 U.S. 897 (1984) – Origin of the good-faith exception; the panel applied Leon to evaluate whether the affidavit was so lacking that reliance was unreasonable.
United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) – Defined “bare-bones” affidavits; Scales contrasted the present affidavit with the skeletal one in Laughton.
United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc) – Introduced the “minimally sufficient nexus” language adopted here.
United States v. Sanders, 106 F.4th 455 (6th Cir. 2024) (en banc) – Recent elaboration of bare-bones doctrine; cited for the proposition that minimal nexus suffices for good-faith.
United States v. Walters, 638 F.2d 947 (6th Cir. 1981) & Fed. R. Crim. P. 59(b)(2) – Provide a second, independent route to waiver when parties fail to object to a magistrate’s R&R.
Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000 (6th Cir. 2022) and Walker v. United States, 134 F.4th 437 (6th Cir. 2025) – Emphasize that stating an intention not to press an argument equals waiver.

Collectively, these authorities allowed the court to (1) declare the government’s probable-cause revival waived, and (2) measure the affidavit’s sufficiency under a relaxed good-faith lens, ultimately sparing the evidence.

2. Legal Reasoning

a. The Waiver Holding

Waiver vs. forfeiture often confounds litigants. The panel drew a bright line:

Forfeiture = inadvertent failure to raise an argument; the appellate court may review for plain error.
Waiver = intentional relinquishment of a known right; appellate review is barred.

Here, the government:

Originally argued probable cause.
After the magistrate’s adverse recommendation, filed a response saying it “do[es] not object” to that finding.
Proceeded solely on good-faith in the district court.

The Sixth Circuit classified this as Classic Waiver, citing Bannister and Walker. The government’s attempt to resurrect the issue on appeal failed because waiver “extinguishes” the argument completely.

b. Good-Faith Analysis

Turning to the remaining question—whether reliance on the warrant was reasonable—the court synthesized three evidentiary strands:

Informant’s Tip: detailed, first-hand assertions about a multi-state heroin operation and storage of drugs/cash in the apartment.
Corroboration: traffic-stop discovery of heroin, cash, firearms, and an apartment key in Scales’s and Davis’s possession—all on the day of the warrant application.
Affiant Experience: Detective Sharp’s training that traffickers commonly stash contraband in residences or third-party-leased premises.

This combination, the panel stressed, easily surpassed the “modicum of evidence” threshold demanded under Carpenter/Neal. Even accepting no probable cause, the affidavit was not “bare-bones”; suppression would not meaningfully deter police misconduct—the animating purpose of the exclusionary rule.

3. Impact of the Judgment

Procedural Ripples:

Federal prosecutors must lodge objections to magistrate findings they intend to preserve. A bare “no objection” or strategic silence operates as waiver, not mere concession, and forecloses appellate resurrection.
Defense counsel can now argue waiver more aggressively whenever the government declines to contest an adverse R&R.

Substantive Ripples:

Reaffirms that minimal corroboration of an informant’s tip (even same-day corroboration) sustains good-faith reliance, guiding law-enforcement affidavit preparation.
Encourages district courts to separate probable-cause analysis from good-faith; even assumed deficient warrants may survive suppression if officers possessed objective reasonableness.

Broader Legal Context: The decision harmonizes Sixth Circuit waiver doctrine with other circuits and promotes finality by discouraging tactical abandonment below coupled with revival on appeal.

Complex Concepts Simplified

Probable Cause: A fair probability that evidence of a crime will be found in a particular place.
Bare-Bones Affidavit: A warrant application with such sparse facts that no reasonable officer could believe it establishes probable cause.
Good-Faith Exception (Leon): Even if a warrant is later found invalid, evidence need not be suppressed if officers reasonably relied on it.
Waiver vs. Forfeiture: Waiver is an intentional surrender of a known right (non-reviewable); forfeiture is failure to raise inadvertently (reviewable for plain error).
Minimally Sufficient Nexus: The minimal factual connection needed between the place searched and alleged wrongdoing to avoid the “bare-bones” label.

Conclusion

United States v. Scales crystallizes two vital teachings. First, procedural precision matters; when the government consciously abandons a probable-cause argument at the district-court level, it cannot later revive it. This waiver doctrine safeguards litigants’ reliance on lower-court proceedings and promotes judicious use of judicial resources.
Second, good-faith remains a robust safe harbor. A detailed informant tip, modest corroboration, and officer expertise sufficed to shield evidence—even if probable cause was assumed missing. Future litigants must accordingly calibrate suppression challenges to focus not just on the presence of probable cause but also on whether the affidavit is truly “bare-bones.”
In sum, Scales stands as a dual precedent: a cautionary tale for prosecutors on waiver and a reaffirmation for law enforcement that the threshold for good-faith reliance, while not toothless, remains forgiving when minimal corroborative efforts are documented.