 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued November 14, 2014          Decided December 30, 2014

                       No. 11-3097

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                THOMAS M. WASHINGTON,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:11-cr-00105-1)


    Tony Axam, Jr., Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender. Lara G. Quint,
Assistant Federal Public Defender, entered an appearance.

    Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, John P. Mannarino,
and Peter S. Smith, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
                                2

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge: Following a jury trial,
Thomas Washington was convicted of possession with intent
to distribute 28 grams or more of cocaine base, possession
with intent to distribute cannabis, and various firearms
offenses. On appeal, Washington argues that the district court
erred in denying his pretrial motion to suppress evidence
because the government’s search-warrant affidavit did not
establish probable cause to search his residence. We agree
with the district court that, even if the affidavit was inadequate
to support a search warrant, this case falls within the good-
faith exception of United States v. Leon, 468 U.S. 897 (1984).
We therefore affirm.

                             * * *

     On September 26, 2009, Officer Jordan D. Katz of the
Washington, D.C. Metropolitan Police Department applied for
a warrant to search the residence at 3025 Yost Place,
Northeast, in Washington D.C. In his affidavit in support of
the application, Officer Katz stated that within the past 72
hours he had spoken to a confidential informant who had been
used on over 100 occasions and had never provided police
officers with false information. The informant told Officer
Katz that a friend, labeled the “unwitting informant,” had
asked the confidential informant to accompany him or her to
3025 Yost Place to purchase crack cocaine from an individual
named “Tom.” After arriving at the location, the confidential
informant broke away from the unwitting informant to
conceal himself or herself. The confidential informant then
observed a man exit the residence, walk down the front steps,
and enter a parked blue Cadillac bearing District of Columbia
tags “BS3960.” The confidential informant observed the
unwitting informant enter the Cadillac with the man who had
                               3

just emerged from 3025 Yost Place and exit the car after
several moments. The unwitting informant then met the
confidential informant, displayed a white rock substance that
the confidential informant recognized as crack cocaine, and
said that the deal “went good.”

     Katz’s affidavit went on to say that the confidential
informant accompanied him to 3025 Yost Place, where the
officer observed the blue Cadillac parked in front of the
residence. Katz conducted a records check that revealed that
the Cadillac was registered to a Thomas Washington of 3001
Yost Place and also gave Washington’s birthdate. Another
records check revealed that a Thomas Washington had been
arrested in 1998 in front of 3025 Yost Place for possession of
an open container of alcohol, and had given 3025 Yost Place
as his residence. A third check showed that a Thomas
Washington, with the same birthdate as the Thomas
Washington to whom the Cadillac was registered, had
previously pleaded guilty to felony charges involving the
distribution of and possession with intent to distribute cocaine.

     Based on this affidavit, a District of Columbia Superior
Court judge issued a warrant to search 3025 Yost Place. The
next day, police officers executed the warrant and found crack
cocaine, marijuana, drug paraphernalia, and various firearms
in the residence.

     Before trial, Washington moved to suppress the evidence
seized by the police in the search. He argued that the affidavit
did not present facts to support probable cause: the unwitting
informant might well have been unreliable, there was no
nexus between the drug sale in the car and the residence at
3025 Yost Place, and the information in the affidavit was or at
least may have been stale. The district court denied the
motion.     After conviction and sentencing, Washington
appealed.
                                4

                              * * *

     The Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause.” U.S. CONST. amend. IV. To
comply with that prescription, the affidavit in support of a
request for a warrant must provide a “substantial basis for
concluding that probable cause existed.” United States v.
Warren, 42 F.3d 647, 652 (D.C. Cir. 1994) (quoting Illinois v.
Gates, 462 U.S. 213, 238-39 (1983)). The task of a judge
reviewing an affidavit for probable cause “is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there is
a fair probability that contraband or evidence of a crime will
be found in a particular place.” Gates, 462 U.S. at 238.

    Even assuming that Officer Katz’s affidavit in this case
did not support a finding of probable cause by the Superior
Court judge, the government has available the good-faith
exception of United States v. Leon. “[W]hen an officer acting
with objective good faith has obtained a search warrant from a
judge or magistrate and acted within its scope,” the
exclusionary rule does not apply to the fruits of that search,
even if the affidavit was in fact inadequate to establish
probable cause. Leon, 468 U.S. at 920. “In the ordinary case,
an officer cannot be expected to question the magistrate’s
probable-cause determination or his judgment that the form of
the warrant is technically sufficient.” Id. at 921; see also
United States v. Gaston, 357 F.3d 77, 80-81 (D.C. Cir. 2004).

     Washington argues that the affidavit was so deficient that
a police officer “could not have harbored an objectively
reasonable belief in the existence of probable cause,” as
required for the application of Leon, and that suppression is
therefore appropriate. See 468 U.S. at 926. We disagree.
                              5

     First, Washington claims that, although the confidential
informant had a proven record of reliability, his reliance on
hearsay from the unwitting informant of unknown veracity
(e.g., his statements that “Tom” lived at 3025 Yost Place and
that the deal “went good”) renders the tip inadequate. But the
affidavit relies overwhelmingly on the confidential
informant—whose reliability Washington does not question—
and the records checks.

     The confidential informant witnessed a man leave the
house at 3025 Yost Place and spend several moments in a car
with the unwitting informant, after which the unwitting
informant showed the confidential informant what he
recognized to be drugs. Officer Katz then independently
verified that someone using the name Thomas Washington
was closely associated with both the 3000 block of Yost Place
and the car, having given 3001 Yost Place as his residence in
registering the Cadillac and 3025 Yost Place on being booked
for possession of an open container of alcohol.

     As to the “unwitting informant,” Washington points out
that courts, in giving weight to the claims of an informant
with no established reliability, commonly rely on the
informant’s provision of non-public predictive information
that is later confirmed by the police. Gates, 462 U.S. at 241;
United States v. Laws, 808 F.2d 92, 102 (D.C. Cir. 1986).
Here, he says, the unwitting informant failed to provide such
information.

     But the unwitting informant did predict that he or she
would purchase cocaine from someone named “Tom” in the
vicinity of 3025 Yost Place, and indeed then proceeded to that
address, entered a car registered to Thomas Washington with
a person who emerged from 3025 Yost Place, and, after a
brief time in the car, came out and presented the confidential
informant with crack, claiming it was the fruit of the activity
                               6

in the car. The police corroborated the unwitting informant’s
identification of “Tom” through the confidential informant,
whose reliability is conceded and who observed “Tom” leave
the house and enter the car, and through records checks that
revealed that a Thomas Washington owned the car and had
previously given 3025 Yost Place as his address. See Laws,
808 F.2d at 102 (relying on unidentified informants who
provided the suspects’ names and what motel rooms they
occupied—information confirmed by motel registration
records). Thomas Washington’s prior conviction for cocaine
distribution also corroborated the unwitting informant’s
statement that he had bought crack from “Tom.” See id. at
101 n.67, 103 (giving weight to a prior narcotics conviction).
While of course the unwitting informant might have had the
crack on hand before entering the car, the activities witnessed
by the confidential informant seem at least highly suggestive
of the predicted drug deal. Indeed, Washington offers no
alternative explanation of the trip from house to car and the
brief joint presence in the car.

     Second, Washington asserts that the confidential
informant’s tip was stale: while the affidavit pinpoints the
time of Officer Katz’s conversation with the confidential
informant as “within the last seventy-two hours,” the affidavit
fails to state when the alleged drug transaction itself occurred.
According to Washington, this vagueness contravenes the
requirement that the facts in the affidavit be recent enough to
assure that probable cause existed when the search occurred.
See United States v. Grubbs, 547 U.S. 90, 95 n.2 (2006).

     Washington’s contention appears to reflect precisely the
sort of “hypertechnical reading” of the affidavit that we have
rejected in favor of commonsense readings. See Warren, 42
F.3d at 653. The affidavit says that in “the course of the last
seventy-two hours” the affiant spoke with the confidential
informant, who said that he or she “had personal knowledge
                               7

that illegal drugs . . . were being possessed, stashed and sold”
in and from 3025 Yost Place. Under normal rules for the
sequence of tenses in English, that wording means that the
asserted possession was going on at the time of the
conversation. It would thus be “a fair reading, though not the
only one,” that in linking the claim of ongoing possession to a
specific transaction, the informant located that transaction
within or very close to the 72-hour period. Gaston, 357 F.3d
at 81.

     Because probable cause must exist at the time that law
enforcement applies for a warrant, the freshness of the
supporting evidence is critical. Schoeneman v. United States,
317 F.2d 173, 178 (D.C. Cir. 1963). Courts have sometimes
been more “lenient” in evaluating the freshness of evidence in
extended conspiracies than for single-incident crimes. United
States v. Webb, 255 F.3d 890, 905 (D.C. Cir. 2001). Future
affiants would therefore be well-advised to avoid temporal
ambiguity in their description of drug transactions,
particularly where only one sale is involved: “[W]hile the
government ultimately prevails, its victory should be looked
upon as a warning, not an invitation.” United States v.
Cardoza, 713 F.3d 656, 661 (D.C. Cir. 2013) (Brown, J.,
concurring).

     Finally, Washington contends that the allegation of a
single sale of crack cocaine inside a car parked outside 3025
Yost Place is inadequate to create probable cause to believe
there were drugs in the house itself. But the affidavit points to
general practices of drug traffickers enabling the affiant to
draw such an inference. Officer Katz, after describing his
extensive experience in drug enforcement, observed that drug
traffickers “rarely keep on their person or immediately about
them their entire supply of drugs” and instead “commonly
retain much or most of their drug supply in their home or
stash house.”       Furthermore, the confidential informant
                               8

personally saw the man exit the residence before entering the
car and sitting with the unwitting informant, after which the
unwitting informant displayed drugs to the confidential
informant. Under these circumstances, an officer could
certainly harbor Leon’s “objectively reasonable belief” that
contraband or evidence would be found within. Indeed, in
United States v. Thomas, 989 F.2d 1252 (D.C. Cir. 1993), we
upheld a search of a person’s house on 51st Street, Northeast
on the basis of the person’s sale of drugs in the 900 block of N
Street, Northwest. Id. at 1255. The inferential link seems a
lot tighter here.

     At oral argument Washington’s counsel repeatedly
argued that a particular circumstance did not “necessarily”
show or “establish” that a drug transaction had occurred or
that there would be drugs in the house at 3025 Yost Place.
Indeed, that is true even when we take all the relevant
circumstances together. The affidavit and the confidential
informant’s tip on which it was based do not rule out innocent
scenarios. It is surely possible that the “unwitting informant”
had it in for Washington and used his or her own supply of
drugs to fake the supposed transaction. And it is possible that
Washington did not generally follow the modus operandi that
Katz believed was prevalent in the drug market. But the
probable cause test doesn’t require that the facts assure
certainty that contraband or evidence of a crime will be
found—only a “fair probability.” Gates, 462 U.S. at 238.
And with a search warrant, as here, Leon requires only that the
affidavit provide ground for the officer’s “objectively
reasonable reliance.” 468 U.S. at 922.

    The judgment of the district court is

                                                      Affirmed.
