 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued April 11, 2014                    Decided June 6, 2014

                         No. 13-3047

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

   MICHAEL MATTHEWS, ALSO KNOWN AS MICHAEL GARY
                    MATHEWS,
                   APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:12-cr-00066-1)


     Jenifer Wicks, appointed by the court, argued the cause and
filed the briefs for appellant.

    L. Jackson Thomas II, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, Elizabeth Trosman and Anthony
Scarpelli, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
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     SENTELLE, Senior Circuit Judge: Michael Matthews was
tried and convicted for unlawful possession with intent to
distribute fifty grams or more of methamphetamine. The district
court entered a judgment sentencing Matthews to a period of
incarceration, followed by supervised release. Matthews
appeals from that judgment, arguing that the district court erred
in denying his motion to suppress evidence seized as a result of
a search warrant and in not granting the defense a “Franks
hearing” on the suppression issue. Because we conclude that
any error by the district court does not warrant reversal, we
affirm the judgment before us.

                       BACKGROUND

     On December 2, 2011, officers of the District of Columbia
Metropolitan Police Department (“MPD”) and the United States
Drug Enforcement Administration executed a search warrant
obtained from the Superior Court of the District of Columbia for
the defendant’s apartment. During the search, the officers
seized methamphetamine, cash, and various items of drug
paraphernalia. Following his arrest and the waiver of his
Miranda rights, Matthews was interviewed by an MPD officer
and admitted his possession of methamphetamine for
distribution.

     The United States obtained a single-count indictment
charging appellant with unlawful possession of fifty grams or
more of methamphetamine with the intent to distribute, in
violation of 21 U.S.C. § 841(b)(1)(A)(viii). Appellant moved to
suppress the tangible evidence seized in the search and the
statements obtained from him after the search, claiming they
resulted from a warrant issued without probable cause. The
district court, after reviewing the submissions of the parties and
the affidavit upon which the issuance of the warrant was based,
denied the motion without an evidentiary hearing. The case
                               3

proceeded to a bench trial, in which the defense renewed the
motion to suppress, which was again denied. At the close of all
evidence, the court found the defendant guilty and thereafter
entered a sentence of confinement for 120 months, followed by
a five-year period of supervised release.

     Defendant appeals, alleging error in the denial of the
motions to suppress the evidence, and in the failure of the court
to provide a hearing on the suppression motion, pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). For the reasons set
forth below, we affirm the judgment of the district court.

                         ANALYSIS

     Both issues in the case concern a Superior Court search
warrant issued upon the affidavit of a Metropolitan Police
officer. That affidavit, and therefore the search warrant,
depended almost entirely upon information obtained from “an
individual,” whom the officer referred to as “my ‘source.’”
While the affidavit disclosed that the affiant knew the identity
of the source, in order to protect the source from harm, the
officer did not use the source’s name, and indeed, avoided the
use of gender-specific pronouns, consistently referring to the
source as “it.” While we will not set forth the affidavit in its
entirety, an understanding of the issues in this case requires a
substantial disclosure of its language:

    The source . . . stated that it knew of a person whose name
    it gave me, which I am indicating here as “MM” or M------
    M------. I am doing that to be certain that this person’s
    name is not used in full in a public document until after it
    has been charged. My source told me that MM has been
    selling large quantities of methamphetamines in mid-town
    Washington, D.C., for well more than three years. My
    source told me that it had itself bought large amounts of
                                4

    methamphetamines regularly from MM at MM’s home at
    apartment number two at 1500 Massachusetts Avenue,
    N.W., and had seen MM sell quantities of
    methamphetamine to other persons in this apartment being
    sold by an occupant of 901 S Street N.W., Washington,
    D.C. According to the source, MM sells methamphetamine
    to support itself and runs this illegal business from its
    home, which is the apartment for which I seek a warrant.
    The source has known MM for more than three years and
    during that time has never known MM to hold any
    employment other than selling illegal drugs.

The affiant further declared:

    To corroborate this information, I went to 1500
    Massachusetts Avenue, N.W., and spoke to persons
    engaged in managing the apartment building. They showed
    me the name of the person who is the tenant in apartment
    number two. That name is the same as given me by my
    source and is the same one I mean when I say MM in the
    preceding paragraph.

The officer also swore that “[i]n addition to the corroboration”
of the name and address information, he believed the
information to be reliable and accurate for several reasons. For
example, he knew that the source had recently been found to be
in possession of a quantity of methamphetamine in “its”
residence. He, the officer, also knew that methamphetamine use
in Washington, D.C., was concentrated in a certain area of town,
within which the address lay. He independently knew that his
source was familiar with buyers and sellers of
methamphetamine. He also noted that his source was not
“working off a beef,” but was trying to get “a break” from the
police or the prosecutor’s office.
                                5

     On the day after the warrant issued, Metropolitan Police
Department officers and United States Drug Enforcement agents
executed the warrant at Apartment 2, 1500 Massachusetts
Avenue, NW, the premises named in the warrant. The search
resulted in the seizure of crystal methamphetamine from a
Rubbermaid container, a hall closet, a vacuum-sealed bag found
in a safe in the apartment, and a plate in the apartment’s
bedroom. Additionally, the officers seized suspected crystal-
methamphetamine residue from ziploc bags in the bedroom,
$6108 in cash found inside the safe, and additional cash from
appellant’s person. They also found a currency counter in the
livingroom, a supply of $1000 money wrappers, ziploc bags,
“cups with residue,” and digital scales in the hall closet, as well
as empty ziploc bags, a Tupperware container filled with unused
ziploc bags, small glass vials, various ziploc bags with different
colored name markings on them, and syringes that were located
in the bedroom closet.

     In addition to the indicia of methamphetamine trade, the
searching officers seized evidence connecting Matthews with
the address. This evidence included mail, a United States
passport, a certificate from the Department of Health, and a title
issued by the District of Columbia—all bearing appellant’s
name— as well as appellant’s checkbook.

     The officers arrested Matthews and advised him of his
Miranda rights. Matthews waived his rights and was
interviewed by the officer who had obtained the search warrant.
In that interview, Matthews admitted that he possessed the
methamphetamine for distribution.

    The admissibility of all the incriminating evidence against
appellant depends upon the validity of the search. The
methamphetamine and other physical evidence was seized under
the warrant. The confession appears to be the fruit of that tree,
                                6

which appellant contends is poisonous. See Wong Sun v. United
States, 371 U.S. 471 (1963). His appeal questions both the
sufficiency of the showing of probable cause on which the
warrant is based, and the district court’s denial of his
suppression motion without an evidentiary hearing which, he
contends, deprived him of a safeguard to which he was entitled.

    A. Probable Cause

     The Fourth Amendment to the Constitution protects the
people from “unreasonable searches and seizures,” and requires
that “no Warrants shall issue, but upon probable cause . . . .”
U.S. Const. Amend. IV. By the terms of the amendment, the
sufficiency of the showing underlying the issuance of a search
warrant requires “not a prima facie showing” but only a
“probability.” Illinois v. Gates, 462 U.S. 213, 235 (1983). As
applied to the facts before us, the issuing judge was required to
determine that the illegal activity, contraband, or evidence of the
same was “probably” on the premises described in the warrant,
not that they were certainly there.

     The affidavit cited above stated that Matthews had been
selling large quantities of methamphetamine for over three
years, that the “source” had purchased drugs regularly from
Matthews at the described premises, that the source had seen
Matthews sell quantities of methamphetamine to other persons
at the premises, that Matthews supported himself by the sale of
methamphetamine, and was running an illegal business from his
home at that address. On first reading, this information would
certainly seem to support a probability that a search warrant
would reveal drugs and evidence of drug dealing at the
premises. The Supreme Court has advised repeatedly that “in
dealing with probable cause . . . we deal with probabilities.
These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent
                                 7

men, not legal technicians, act.” Brinegar v. United States, 338
U.S. 160, 175 (1949). However, appellant raises nonfrivolous
questions as to the legal sufficiency of the affidavit upon which
the Superior Court judge acted. More specifically, he contends
that the factual basis of the affidavit is “stale” and that the
affidavit does not reflect sufficient indicia of reliability on the
part of the source.

     Appellant argues that so far as appears from the affidavit,
the affiant’s information may have been out of date. He
contends that the source, even if truthful, may have bought
methamphetamines as much as three years before the issuance
of the warrant and that therefore, the affidavit is so stale as to
raise no probability that evidence of drugs or a drug enterprise
would still be present on the premises to be searched. As he
points out, “a statement by an untested informant that three
years earlier the defendant was involved in the drug trade carries
almost no weight in the analysis of probable cause . . . .” United
States v. Huggins, 299 F.3d 1039, 1053 (9th Cir. 2002)
(Fletcher, J., concurring).

     The United States contends that the quoted language from
the Ninth Circuit does not describe this affidavit. In its view, the
affidavit does not simply describe a single purchase years before
the issuance of the warrant. Instead, while averring that the
source was aware of “well more than three years” of drug sales
activity by MM at the described premises, the affidavit also
describes the source as having “bought large amounts of
methamphetamines regularly from MM” at the described
premises. It further averred that the source “had seen MM sell
quantities of methamphetamine to other persons” at the
premises.

     But the fact remains that the affidavit does not state dates
for any of the purchases. As we have stated:
                                8

    The likelihood that the evidence sought is still in place is a
    function not simply of watch and calendar but of variables
    that do not punch a clock: the character of the crime
    (chance encounter in the night or regenerating conspiracy?),
    of the criminal (nomadic or entrenched?), of the thing to be
    seized (perishable and easily transferable or of enduring
    utility to its holder?), of the place to be searched (mere
    criminal forum of convenience or secure operational base?),
    etc.

United States v. Bruner, 657 F.2d 1278, 1298 (D.C. Cir. 1981)
(quotation marks and citation omitted).

     The government contends that the affidavit falls
comfortably within the parameters of Bruner. That is, the
affidavit, which speaks in the present tense, as well as describing
activity relating back over three years, describes an ongoing
enterprise in a specified location, not a nomadic one likely to
have been moved or recently terminated.

     The other matter of contention between the parties on the
subject of probable cause is whether the affidavit demonstrates
the reliability of the informant on whose information the
officer’s affidavit depends. In most cases, the reliability is
demonstrated by the source’s having provided accurate
information in the past, often on “numerous occasions.” Id. at
1296. There are, of course, other means of demonstrating the
reliability, including the circumstance that the information given
by the “reliable source” is against his penal interest. The United
States contends that that should apply here. The appellant
contends that it should not, because the portion of the
informant’s statements to the officer that are against its interest
are not those upon which the probable cause determination rests.
In the end, we need not determine the vexing issue of probable
cause, as we conclude that even if probable cause is lacking, the
                                9

admission of the evidence was not reversible error because of
the Leon exception, which we discuss below.

    B. The Leon Exception

     The United States contends that even if we conclude that the
affidavit is insufficient to have supported the issuance of a valid
search warrant, we should nonetheless hold that the district court
did not err in denying appellant’s motion to exclude the fruits of
the search under the “good faith” exception recognized in
United States v. Leon, 468 U.S. 897 (1984). We agree. In Leon,
the Court observed that “‘[i]f the purpose of the exclusionary
rule is to deter unlawful police conduct, then evidence obtained
from a search should be suppressed only if it can be said that the
law enforcement officer had knowledge, or may properly be
charged with knowledge, that the search was unconstitutional
under the Fourth Amendment.” Id. at 919 (quoting United
States v. Peltier, 422 U.S. 531, 542 (1975)).

     Therefore, in Leon, the High Court held that “when an
officer acting with objective good faith has obtained a search
warrant from a judge . . . and acted within its scope,” the
exclusionary rule should not be employed to “[p]enaliz[e] the
officer for the [judge’s] error.” 468 U.S. at 921. Such an
application of the exclusionary rule “cannot logically contribute
to the deterrence of Fourth Amendment violations.” Id. As in
Leon, the officer here acted pursuant to a warrant, which “is a
judicial mandate to an officer to conduct a search . . . .” Id. at
920 n.21. The officer had “a sworn duty to carry out” the
provisions of the order. Id. Therefore, even if the affidavit was
not sufficient to support the issuance of the warrant, we hold, as
the Supreme Court did in Leon, that the evidence obtained in the
search is not required to be excluded.
                                10

    C. The Franks Hearing Argument

     Appellant argues that even under the Leon good faith
exception, “[s]uppression . . . remains an appropriate remedy if
the magistrate or judge in issuing the warrant was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of
the truth.” Leon, 468 U.S. at 923 (citing Franks v. Delaware,
438 U.S. 154 (1978)). Appellant therefore contends that the
district court erred in denying his request for a Franks hearing.
We disagree.

     By its terms, the Franks opinion suggests the necessity for
a hearing to determine the truth of the affidavit underlying the
issuance of the warrant only where “the magistrate or judge, in
issuing a warrant, was misled by information in an affidavit that
the affiant knew was false or would have known was false
except for his reckless disregard of the truth.” Id. “Affidavits
or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.” Franks,
438 U.S. at 171.

     In this case, there is no record support for the proposition
that the officer who obtained the warrant was guilty of any such
false swearing or reckless disregard for the truth. Appellant
relies principally on what he views as the omission of details
concerning the source’s drug use and current charges. However,
even if appellant’s factual assertions are correct, he presented
nothing to the district court that would warrant a hearing to
examine knowing false testimony or reckless disregard for the
truth on the part of the officer. The officer certainly alerted the
issuing judge to the source’s current legal difficulties and
involvement with drugs. Even without the “deference [paid] by
reviewing courts” to a determination of probable cause, see
Gates, 462 U.S. at 236 (quotation marks and citations omitted),
                                11

there is nothing to warrant a departure from the normal process
of reviewing the sufficiency of an affidavit to support probable
cause without an evidentiary hearing.

     As both parties note, this circuit has never determined
whether a district court’s decision not to hold a Franks hearing
is reviewed under the clearly erroneous or de novo standard of
review. See United States v. Becton, 601 F.3d 588, 594 (D.C.
Cir. 2010). The United States suggests that we should review
any necessary findings under a clearly erroneous standard and
any conclusions of law under a de novo standard. However, it
does not matter. As in Becton, we reiterate that “‘[t]o mandate
an evidentiary hearing,’ the movant’s attack on the affidavit
supporting the warrant ‘must be more than conclusory.’” Id.
(quoting Franks, 438 U.S. at 171). Here, as in Becton, there is
no more than a conclusory claim that the officer may have
misled the issuing judge, and there is no support in the record
for the necessity of holding an evidentiary hearing under Franks.

                          CONCLUSION

     To summarize, we hold that we need not decide the
sufficiency of the affidavit because the exclusionary rule is
inapplicable to the fruits of the search under Leon, 468 U.S. 897.
We further conclude that the district court did not err in refusing
to hold an evidentiary hearing under Franks, 438 U.S. 154. We
therefore affirm the judgment below.

                                                      So ordered.
