 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 8, 2013                 Decided April 12, 2013

                       No. 12-3051

               UNITED STATES OF AMERICA,
                      APPELLANT

                             v.

                     JARED CARDOZA,
                        APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:11-cr-00275-1)


    Christopher Macchiaroli, Assistant U.S. Attorney,
argued the cause for appellant. With him on the briefs were
Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman
and Elizabeth H. Danello, Assistant U.S. Attorneys.

    Howard B. Katzoff, appointed by the court, argued the
cause for appellee.

   Before: GARLAND, Chief Judge, and BROWN and
KAVANAUGH, Circuit Judges.
                              2

    Opinion  for the Court filed by Circuit Judge
KAVANAUGH, with whom Chief Judge GARLAND and Circuit
Judge BROWN join.

    Concurring opinion filed by Circuit Judge BROWN.

     KAVANAUGH, Circuit Judge: Police officers executed a
search warrant for Jared Cardoza’s apartment and seized more
than 200 grams of cocaine, more than 300 grams of
marijuana, a Beretta 9-millimeter semi-automatic pistol, a
Colt .357 revolver, more than $100,000 in cash, and a variety
of drug paraphernalia. After the Government obtained a
grand jury indictment against Cardoza for federal drug
trafficking and firearm offenses, Cardoza moved to suppress
the evidence found in his apartment. According to Cardoza,
the police officer who prepared the search warrant affidavit
made false statements in the affidavit and did so with reckless
disregard for the truth. Without those statements, Cardoza
argued, the search warrant affidavit did not establish probable
cause, meaning that the evidence seized from his apartment
must be suppressed. See Franks v. Delaware, 438 U.S. 154
(1978).

    The District Court agreed with Cardoza and granted the
motion to suppress. We reverse. We conclude that, even with
the contested statements excised, the remaining portions of
the officer’s affidavit demonstrate probable cause for the
search warrant.

                               I

    At about 1:00 a.m. on Saturday, August 27, 2011, three
Metropolitan Police Department officers driving on patrol in
Washington, D.C., observed a car stopped in a no-parking
zone. As the officers drove by the car, one of the officers saw
                               3

Jared Cardoza and Adam Ungar talking outside the car and
saw each man extend a hand toward the other. The officers
then turned around and returned to the car, in which Cardoza
and Ungar were now seated. After speaking with Cardoza
and Ungar, the officers ordered them out of the vehicle. The
officers observed a marijuana cigarette lying on the seat
where Cardoza had been sitting and a knotted plastic bag
containing 4.3 grams of cocaine lying next to the seat where
Ungar had been sitting.

     The officers arrested both Cardoza and Ungar. In a
search incident to the arrest, the officers recovered from
Cardoza: (i) three disposable cell phones, each in a separate
pocket; (ii) $2,880 total in cash, separated into sums of $255,
$250, and $2,375; (iii) a knotted plastic bag containing
marijuana; and (iv) a sheet of paper listing cities with baseball
franchises and dollar figures. When arrested, Cardoza
provided a Maryland address to the police. A later law-
enforcement records check showed a D.C. apartment as
Cardoza’s current address and described the Maryland
address as inactive for the preceding two years. The records
check also revealed that Cardoza had previously been arrested
for marijuana possession and possession with intent to
distribute marijuana.

    One of the police officers recorded those facts, among
others, in an affidavit in support of a search warrant for
Cardoza’s D.C. apartment. The officer sought the warrant to
search for evidence relating to narcotics distribution, narcotics
possession, and illegal gambling. A D.C. Superior Court
judge found probable cause and issued the search warrant.
The officers then executed the search warrant at Cardoza’s
apartment and found and seized more than 200 grams of
cocaine; more than 300 grams of marijuana; a Beretta 9-
                               4

millimeter semi-automatic pistol and a Colt .357 revolver;
more than $100,000 in cash; and paraphernalia associated
with drug distribution, including a grinder, a scale, a cutting
agent, and packaging materials.

     Shortly thereafter, the Government obtained a federal
grand jury indictment against Cardoza for possession with
intent to distribute cocaine, possession with intent to
distribute marijuana, and possession of a firearm during a
drug trafficking offense. See 18 U.S.C. § 924(c)(1); 21
U.S.C. § 841. Cardoza moved to suppress all evidence
obtained pursuant to the execution of the search warrant.

     Under United States v. Leon, suppression of evidence is
usually not required when officers conduct a search in
reasonable reliance on a search warrant issued by a detached
and neutral magistrate. 468 U.S. 897, 913 (1984). The Leon
rule has a few exceptions. See id. at 922-23. As relevant
here, the Leon rule does not apply when the officer seeking
the search warrant made false statements in the affidavit and
did so either knowingly or with reckless disregard for the
truth. See id. at 923; United States v. Richardson, 861 F.2d
291, 294 n.5 (D.C. Cir. 1988). That is known as the Franks
exception. See Franks v. Delaware, 438 U.S. 154 (1978).

     To exclude evidence under Franks, the defendant must
meet two requirements. First, the defendant must establish by
a preponderance of the evidence “that a false statement
knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit.” Id.
at 155-56. Second, “with the affidavit’s false material set to
one side, the affidavit’s remaining content” must be
“insufficient to establish probable cause.” Id. at 156.
                                5

     In this case, the District Court held a Franks hearing and
found that the officer had made four false statements in the
affidavit: that when Cardoza and Ungar were outside the car,
the officer saw each “touch[] the other’s hand with his own”; 1
that the officer found it “telling” that the knotted plastic bags
of drugs recovered from Cardoza and Ungar were in “the
same uncommon form of packaging”; that Cardoza had told
the officer that he had a large sum of cash because he “took
bets on baseball games”; and that, in the officer’s opinion,
Cardoza was likely carrying a “ledger and currency reserve”
in order to “take, track, payout and collect on wagers.” See
Transcript of Status Conference at 24-30, United States v.
Cardoza, No. 11cr275 (D.D.C. May 31, 2012).

     The District Court also found that the police officer had
made those false statements with reckless disregard for the
truth. See id. at 20, 31. The District Court then excised all
four statements from the affidavit and proceeded, as required
by Franks, to evaluate whether the remaining portions of the
affidavit were sufficient to establish probable cause.
According to the District Court, the remaining material did
not “give rise to probable cause to believe that the defendant
was either a narcotics trafficker or running a gambling
operation.” Id. at 31. Therefore, the District Court granted
Cardoza’s motion to suppress. Id. at 32.


    1
       Contrary to Cardoza’s assertion, the District Court did not
discount the officer’s entire description of the encounter between
Cardoza and Ungar outside the car. Rather, it found false only the
officer’s statement that the two men actually touched hands. See
Transcript of Status Conference at 24, United States v. Cardoza,
No. 11cr275 (D.D.C. May 31, 2012) (“I find that . . . by a
preponderance of the evidence, the statement in the Affidavit that
the hands touched was false.”).
                                6

                                II

     On appeal, the Government forcefully challenges both
prongs of the District Court’s Franks analysis.            The
Government first argues that the District Court clearly erred
in finding that the police officer’s statements in the warrant
affidavit were made with reckless disregard for the truth. In
the alternative, the Government contends that, even with those
statements excised from the warrant affidavit, the remaining
portions of the affidavit still readily established probable
cause to search Cardoza’s apartment for evidence of
narcotics. Because we agree with the Government that the
remaining portions of the affidavit still established probable
cause, we need not address the District Court’s reckless
disregard findings.

     Under the Leon rule, we ordinarily do not suppress
evidence seized pursuant to a search warrant unless the
warrant affidavit was “so lacking in indicia of probable cause
as to render official belief in its existence entirely
unreasonable.” See United States v. Leon, 468 U.S. 897, 923
(1984); United States v. Spencer, 530 F.3d 1003, 1006-07
(D.C. Cir. 2008). But in this case, no judge issued a search
warrant based on the affidavit that we now must hypothesize
– that is, an affidavit purged of the four contested statements.
Whether that hypothetical, redacted affidavit still established
probable cause is therefore a legal question that we review de
novo. See United States v. Glover, 681 F.3d 411, 417 (D.C.
Cir. 2012).

       The Supreme Court has described the task of evaluating
probable cause as “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
. . . there is a fair probability that contraband or evidence of a
                               7

crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). Judges “need not confine their
evaluations within rigorous legalistic boundaries but instead
may use their common sense.” United States v. Davis, 617
F.2d 677, 692 (D.C. Cir. 1979).

     Although the question is close, we conclude that the
remaining uncontested portions of the officer’s affidavit
established a “fair probability” of finding evidence of drugs in
Cardoza’s apartment.

     The question here breaks down into two subsidiary
questions: First, was there probable cause to believe Cardoza
was engaged in drug trafficking? And second, if so, does that
create probable cause to search his apartment?

     First, in analyzing whether the affidavit established
probable cause to believe Cardoza was involved in drug
trafficking, we consider the following facts:

   •   Officers saw Cardoza speak with Ungar outside a car,
       where each man extended a hand toward the other.
       Then, when the officers approached, Cardoza and
       Ungar were both in the car. Next to Ungar’s seat in
       the car was a knotted plastic bag containing 4.3 grams
       of cocaine, which a police officer averred constituted a
       distribution-level quantity.      Those circumstances
       suggested that Cardoza and Ungar may have engaged
       in a drug transaction involving the sale of a
       distribution-level quantity of cocaine.
   •   When Cardoza was arrested, he had a knotted plastic
       bag of marijuana, and a marijuana cigarette was lying
       on his seat in the car.
                               8


   •   When Cardoza was arrested, he had almost $3,000 in
       cash.
   •   When Cardoza was arrested, he had three disposable
       cell phones.
   •   When Cardoza was arrested, he gave police an address
       that was not accurate.
   •   After Cardoza was arrested, a records check revealed
       that he had previously been arrested for possession
       with intent to distribute drugs.

     Cardoza’s apparent drug transaction with Ungar, which
involved a distribution-level quantity of cocaine, created at
least some suspicion of potential drug trafficking activity.
And the other facts – the large amount of cash Cardoza had
with him, his three disposable cell phones, the false address
he provided, his past arrest record for drugs – increased the
likelihood that Cardoza was involved in drug trafficking
activity, as courts have found in similar circumstances. See,
e.g., United States v. Young, 609 F.3d 348, 355 (4th Cir.
2010) (defendant’s possession of large amount of cash and
multiple cell phones as evidence of drug distribution); United
States v. Whitner, 219 F.3d 289, 299 (3d Cir. 2000)
(defendant’s attempts “to conceal his address” could support
finding of probable cause to search his apartment for evidence
of drug dealing); United States v. Vanness, 85 F.3d 661, 663
(D.C. Cir. 1996) (defendant’s criminal record could support
finding of probable cause that he was dealing drugs). This is
not a case where the suspect possessed only a user-level
amount of marijuana and there was no other evidence.

    In our view, the evidence in this case – when taken
together – establishes at least a “fair probability” that Cardoza
was involved in drug dealing. To be sure, even with all of the
evidence gathered by the officers, it remained possible that
                               9

Cardoza would turn out not to be a drug dealer. But probable
cause does not require certainty, or proof beyond a reasonable
doubt, or proof by a preponderance of the evidence. The
Supreme Court has stated that probable cause requires a fair
probability. See Florida v. Harris, 133 S. Ct. 1050, 1055
(2013). That standard was satisfied here.

     The crux of Cardoza’s argument to the contrary is that
the affidavit does not identify sufficient evidence of drug
trafficking because it does not recite either direct evidence of
distribution or possession of drugs in sufficient weight and
packaging to show an intent to distribute. We disagree. The
4.3 grams of cocaine found next to Ungar’s seat in the car
constituted a distribution-level quantity, according to the
Government’s affiant, and circumstantial evidence –
including Cardoza and Ungar’s apparent drug transaction and
their presence together in the car – suggested that Cardoza
might be linked to that cocaine. Moreover, as Justice Kagan
recently explained for the Supreme Court in a Fourth
Amendment informant case, a “gap as to any one matter . . .
should not sink the State’s case.” Harris, 133 S. Ct at 1056.
Rather, in the realm of probable cause, the Supreme Court has
“rejected rigid rules, bright-line tests, and mechanistic
inquiries in favor of a more flexible, all-things-considered
approach.” Id. at 1055.

     Second, the conclusion that there was probable cause to
believe Cardoza was involved in drug trafficking leads to the
further conclusion that there was probable cause to search
Cardoza’s apartment. Based on his training and experience,
the police officer opined in his affidavit that “narcotics
traffickers often keep additional supplies of narcotics within
their residences,” along with weapons and large sums of cash.
Cardoza Motion to Suppress, Exhibit 1, at 7, United States v.
                             10

Cardoza, No. 11cr275 (D.D.C. Dec. 16, 2011). The officer’s
commonsense assessment echoes this Court’s own analysis of
the matter: “Common experience suggests that drug dealers
must mix and measure the merchandise, protect it from
competitors, and conceal evidence of their trade – such as
drugs, drug paraphernalia, weapons, written records, and cash
– in secure locations. For the vast majority of drug dealers,
the most convenient location to secure items is the home.”
Spencer, 530 F.3d at 1007. When there is probable cause that
a defendant is dealing drugs, there often tends to be probable
cause that evidence of that drug dealing will be found in the
defendant’s residence. See id. at 1007-08; United States v.
Johnson, 437 F.3d 69, 71-72 (D.C. Cir. 2006). So it is in this
case.

                            ***

    We reverse the District Court’s suppression order.

                                                  So ordered.
     BROWN, J., concurring: In conceding the falsity of the
four challenged statements and declining to contest the
District Court’s determination that there was insufficient
evidence to show probable cause of an illegal gambling
operation, the government’s nervy litigation strategy has
made this a far closer case than it might otherwise have been.
I write only to emphasize that while the government
ultimately prevails, its victory should be looked upon as a
warning, not an invitation. We have found probable cause by
only a hair’s breadth. Efforts to establish probable cause
based on affidavits less substantial than the corrected and
qualified affidavit now before this Court are unlikely to inch
over the threshold.
