United States v. Jared Cardoza

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

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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.

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• 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.