United States of America v. Tony Leonard a/k/a Tom Cat, a/k/a Thomas Lee Jones

Boston, MA - Criminal defense lawyer represented defendant with

one count of possession of a firearm by a prohibited person and one count of possession with the intent to distribute cocaine charges.

In August 2017, Lewiston (Maine) Police Department

("LPD") Patrolman Zachary Provost submitted an affidavit in

support of an application for a state search warrant during the

course of an investigation into suspected drug possession,

furnishing, and/or trafficking by Leonard. Provost had been

employed for five years by the LPD. He was assigned to the plainclothes Special Enforcement Team, and he had completed several

1 So called because the type of hearing derives from Franks v.

Delaware, 438 U.S. 154 (1978).

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training courses related to drug enforcement and had participated

in numerous drug investigations.

Provost sought a warrant to search Leonard himself and

his residence located at 41 Walnut Street, Lewiston, for drugs,

drug paraphernalia, firearms, and other evidence. His affidavit

identified both Apartment #2 and Apartment #3 at that location as

Leonard's residence. The apartments were described as being

located in an off-white multi-unit apartment building directly

above the Midtown Athletic Club. In support of his warrant

application, Provost provided information said to have been

received from three confidential informants or "CIs."2

CI-1 provided information in the hope of favorable

consideration in a pending criminal case involving violation of

conditions of release and drug-related offenses. CI-1 also had

prior arrests for bail violations and false public alarm.

Nonetheless, Provost wrote that CI-1 had "been proven reliable by

providing me with information that I have deemed credible from

prior investigations."

CI-1 informed Provost that a person nicknamed "TOMCAT"

lived above the "Midtown” and was dealing "[c]rack." Provost knew

2 In the affidavit, Provost refers to all the confidential

informants simply as "CI." For clarity, this opinion refers to the

CI who provided information to Provost as CI-1, the CI who provided

information to the other LPD officer as CI-2, and the CI who

provided information to an agent of the Maine Drug Enforcement

Agency as CI-3.

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from prior experience that Leonard used the street name "TOMCAT,"

had a prior conviction for drug trafficking, and had recently been

released from prison. Existing internal LPD records confirmed

Leonard's use of the alias and identified 41 Walnut Street #3 as

his residence. Additionally, a review of his prior criminal history

confirmed that Leonard had numerous convictions for drug

possession and trafficking.

CI-1 reported to Provost that TOMCAT had apartments on

the second and third floors. He stated that the second-floor

apartment was the "TRAP" spot that was unfurnished except for a

folding card table and was commonly used as a "[p]arty [s]pot." He

reported that TOMCAT lived in the third-floor apartment with his

girlfriend.

CI-1 further stated that TOMCAT had video monitoring

devices in the hallways. TOMCAT had access to the surveillance

equipment at all times and typically watched it while dealing

"[c]rack [c]ocaine." CI-1 had seen TOMCAT in possession of a pistol

and ammunition and, within a week or so before the warrant

application, had observed TOMCAT packaging "[c]rack [c]ocaine" for

distribution inside the second-floor apartment. He reported that

TOMCAT kept his firearm and narcotics on the second floor, but he

did not know where TOMCAT kept his drug proceeds.

During the course of the investigation, Provost received

information from another LPD Officer about another registered

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confidential informant, CI-2. According to the other officer, CI2 had prior arrests for theft, operating after a suspension, and

forgery, but had previously provided information that was deemed

credible by police and had led to an arrest. CI-2 claimed to be

interested in reducing drug trafficking in the city because drugs

had "directly affected this CI's life."

CI-2 provided information to the police that TOMCAT was

staying at 41 Walnut Street and was dealing "HARD," which Provost

knew from his experience was a street term for crack cocaine. CI2 stated he could purchase "[c]rack [c]ocaine" from TOMCAT at any

time. On August 14, 2017, CI-2 reported that TOMCAT lived in the

third-floor apartment, but utilized the second-floor apartment to

deal "[c]rack." CI-2 reported there was constant foot traffic

coming and going from the rear door of the building and that TOMCAT

was often seen standing in the rear parking lot. CI-2 also stated

that the residence was equipped with video surveillance.

On August 15, 2017, Provost spoke with an agent of the

Maine Drug Enforcement Agency, who informed him that agents had

recently made contact with CI-3, a cooperating defendant. CI-3

reported to them that TOMCAT was the largest drug trafficker in

the area. CI-3 stated that TOMCAT had apartments on the second and

third floors above the "Midtown Bar" on Walnut Street. CI-3 further

stated that TOMCAT's customers typically used the rear entrance

located on Bartlett Street. CI-3 had recently observed

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approximately 1.5 ounces of "[c]rack [c]ocaine" and 1 ounce of

"[c]ocaine HCL" in the apartment, where he had also previously

observed firearms. CI-3 did not know who owned the firearms.

Shortly before Provost applied for the warrant, the LPD

conducted a controlled purchase of cocaine from Leonard, utilizing

one of the confidential informants.3 According to the affidavit,

officers searched the CI for contraband and equipped him with an

electronic recording and monitoring device. Officers followed the

CI to the parking lot at 41 Walnut Street, where the CI made

contact with Leonard. The CI observed Leonard enter the back door

leading to both the second- and third-floor apartments and return

moments later. The CI provided TOMCAT with pre-counted, recorded

United States currency in exchange for a quantity of cocaine. After

the buy, the CI turned over cocaine to a detective. A field test

indicated the presence of Cocaine HCL.

On August 16, 2017, a state court judge issued the

warrant to search Apartments #2 and #3 at 41 Walnut Street. The

next day, LPD officers executed the search warrant. Officers found

Leonard inside the third-floor apartment. Nearby was a jacket which

contained a handgun and magazine. Officers also found cocaine,

crack cocaine, more than $10,000 in U.S. currency, and a key that

opened the second-floor apartment. In the second-floor apartment,

3 The affidavit does not identify which of the three CIs made

the purchase.

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officers found recently purchased furniture in Leonard's name, a

bill bearing his name, a handgun case corresponding to the handgun

previously seized, another loaded magazine, a digital scale with

white powder residue, a box of plastic baggies, and a firearm

cleaning kit.

A grand jury returned a federal indictment against

Leonard charging him with one count of possession of a firearm by

a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and one count of possession with the intent to

distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). Prior to trial, Leonard filed a motion to suppress the

results of the August 17th search of 41 Walnut Street, as well as

evidence seized pursuant to subsequent search warrants predicated

on the evidence from the search on August 17. He sought a hearing

pursuant to Franks v. Delaware on the basis of what he claimed

were two material omissions from the warrant affidavit.

First, Leonard argued that Provost failed to disclose

that significant interfering background noise prevented the

electronic recording and monitoring device from capturing usable

audio information. Leonard contended that the omission created the

false impression that something of evidentiary value had actually

been recorded or monitored, implicitly boosting the affidavit's

narrative. Second, Leonard argued that Provost failed to disclose

that after completing the controlled buy, the CI did not meet

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immediately with police but rather left the area in a car with an

unidentified person and, only after that, met up with police to

turn over some cocaine. Leonard argued that the circumstance raised

the possibility that the CI had obtained the cocaine from some

source other than Leonard, including the person with whom the CI

had left the area. Disclosure of that fact, he argued, would have

weakened the case for probable cause.

In response, the government contended that the omitted

information would not have materially weakened the probable cause

determination, and that even if the warrant affidavit was deemed

to lack probable cause, thus invalidating the warrant, the officers

had relied in good faith on the judicially authorized search

warrant. See United States v. Leon, 468 U.S. 897 (1984).

The district court denied both Leonard's Franks motion

and his motion to suppress in a brief written decision. The

district court accepted Leonard's factual allegations as true but

concluded that Leonard had not demonstrated that he was entitled

to a Franks hearing. As to the failure to note that the recording

equipment carried by the CI did not provide corroboration for the

CI's own narrative, the district court found that it was not a

material omission because the affiant did not suggest that the

recording device had led to confirming information. As to the

presence of the unnamed additional person in the car with the CI,

the district court determined that even if the affidavit had

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included the information, it would not have sufficiently cast doubt

on the significant amount of other information in the affidavit

that supported probable cause, particularly the consistency of the

information provided by the separate CIs. The court also concluded

that the probable cause standard would have been met even if the

omitted information had been included in the warrant affidavit.

The district court did not address the government's alternative

good-faith reliance argument.

After his conditional plea, Leonard was sentenced by the

court to ninety-six months' imprisonment.4 Leonard had reserved

his right to appeal the district court's order denying the request

for a Franks hearing and motion to suppress, and he timely filed

this appeal.

II. DISCUSSION

Leonard challenges the district court's denial of his

request for a Franks hearing and consequently its denial of his

motion to suppress the fruits of the search. "In considering a

district court's decision to deny a Franks hearing, [this Court]

review[s] factual determinations for clear error and the probable

cause determination de novo." United States v. Arias, 848 F.3d

4 Leonard pled guilty with respect to possession of a firearm

by a prohibited person. The second count of the indictment,

possession of cocaine with intent to distribute, was dismissed by

the district court upon the government's motion.

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504, 511 (1st Cir. 2017) (citations omitted); accord United States

v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018).

The Fourth Amendment provides that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation

. . . ." U.S. Const. amend. IV. This requires the judicial officer

considering a warrant application "to make a practical, commonsense decision whether, given all the circumstances set forth in

the affidavit before [them], including the veracity and basis of

knowledge of persons supplying hearsay information, there is a

fair probability that contraband or evidence of a crime will be

found in a particular place." United States v. Tanguay, 787 F.3d

44, 50 (1st Cir. 2015) (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)). "Performance of this task must take account of the

totality of the circumstances." Id. (citing Gates, 462 U.S. at

238).

Information supporting probable cause may be set out in

an affidavit submitted with the application for a search warrant.

An affidavit supporting a search warrant is presumptively valid.

United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013). However,

a defendant may rebut this presumption and challenge the veracity

of the affidavit in a pretrial hearing, "eponymously called a

Franks hearing." Barbosa, 896 F.3d at 67 (citations omitted). At

a Franks hearing, if a defendant shows by the preponderance of the

evidence that the affidavit "contains false statements or

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omissions, made intentionally or with reckless disregard for the

truth, and that a finding of probable cause would not have been

made without those false statements or omissions, then the

defendant is entitled to the suppression of evidence obtained under

that warrant." Arias, 848 F.3d at 511 (citing Tanguay, 787 F.3d at

49).

A defendant, however, is not entitled to a Franks hearing

as a matter of right. Rather, he first must make a "'substantial

preliminary showing' . . . that 'a false statement or omission in

the affidavit was made knowingly and intentionally or with reckless

disregard for the truth' and that the false statement or omission

was 'necessary to the finding of probable cause.'" Id. at 511

(quoting United States v. McLellan, 792 F.3d 200, 208 (1st Cir.

2015)). When a defendant claims there were material omissions from

the facts asserted in an application, he must therefore show that

the omission was "intentional or reckless" and that "the omitted

information, if incorporated into the affidavit, . . . [is]

sufficient to vitiate probable cause." Tanguay, 787 F.3d at 49.

Against this backdrop, we turn to Leonard's attempt to

persuade the Court that the district court erred in its conclusion

that he had failed to make a threshold showing sufficient to

entitle him to a Franks hearing. He contends that if the affidavit

were reformed to include the omitted facts regarding the background

noise and the presence of another individual in the cooperator's

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vehicle, the affidavit would have been insufficient to establish

probable cause that a search of Leonard's residence would turn up

evidence of a crime.5 He also claims the affidavit was insufficient

to establish a nexus to Leonard's third-floor residence.

A. Sufficiency of the Affidavit

The district court found that an affidavit reformed as

Leonard claims it should be would still support probable cause

because the omitted information would not have sufficiently

negated the considerable force of other information in the

affidavit, particularly the consistency of information provided by

three separate confidential informants.

When, as here, the showing of probable cause is based

primarily on information provided by CIs with some additional

corroboration by police investigation, we apply a "nonexhaustive

list of factors" to examine the affidavit's probable cause showing.

United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011).

These factors include, among others, (1)

whether the affidavit establishes the probable

veracity and basis of knowledge of persons

supplying hearsay information; (2) whether an

informant's statements reflect firsthand

5 Leonard also attempts to address the first element of the

Franks test, i.e., that the affiant intentionally or with reckless

disregard for the truth omitted information from the affidavit.

However, he does so only cursorily. But we need not consider

whether Leonard has waived this argument because we conclude that

Leonard has failed to satisfy the second element of the Franks

test and thus his challenge fails on that ground.

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knowledge; (3) whether some or all [of] the

informant's factual statements were

corroborated wherever reasonable and

practicable (e.g., through police

surveillance); and (4) whether a law

enforcement affiant assessed, from his

professional standpoint, experience, and

expertise, the probable significance of the

informant's provided information.

Id. (quotation marks and citations omitted). "Because '[n]one of

these factors is indispensable,' a stronger showing of supporting

evidence as to one or more factors may effectively counterbalance

a lesser showing as to others." Id. (alteration in original)

(quoting United States v. Zayas–Diaz, 95 F.3d 105, 111 (1st Cir.

1996)).

A reformed affidavit to include what Leonard claims was

improperly omitted information would satisfy the Tiem Trinh

factors. First, the affidavit established the probable veracity of

the CIs. As to CI-1, Provost stated the source had proven reliable

in the past with information Provost had deemed credible from prior

investigations. See United States v. Barnard, 299 F.3d 90, 93 (1st

Cir. 2002); see also Tiem Trinh, 665 F.3d at 10–11 (noting that

references to a CI's history of providing information to

authorities provides "some assurance of reliability"); United

States v. Khounsavanh, 113 F.3d 279, 286–87 (1st Cir. 1997). Though

CI-1 had pending charges at the time, providing perhaps an

incentive to falsify information, "[t]he risk that the informant

is lying or in error need not be wholly eliminated. Rather, what

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is needed is that the probability of a lying or inaccurate informer

has been sufficiently reduced by corroborative facts and

observations." See Khousavanh 113 F.3d at 284 (internal quotations

omitted). As to CI-2, despite previous arrests, the source had

provided information in the past that had been found credible and

had resulted in an arrest. See Tanguay, 787 F.3d at 50. CI-2 was

not working for any consideration, but rather claimed to be

motivated by personal experience to help to reduce drug trafficking

in Lewiston. There is no particular background information about

CI-3, but his trustworthiness is enhanced by the fact the

information CI-3 provided implicated himself to some degree

because he had personally observed drugs and firearms in Leonard's

apartment. See id. (noting that trustworthiness may be enhanced by

the extent to which statements are against interest).

Additionally, none of the CIs were anonymous tipsters; rather,

they were "known to the police and could be held responsible if

[their] assertions proved inaccurate or false." See Barnard, 299

F.3d at 93.

Second, the information provided by the CIs was based on

firsthand information and/or provided detailed information about

Leonard's criminal activity. See Gates, 462 U.S. at 234; Barnard,

299 F.3d at 93. Their reliability is bolstered by the "extent and

level of detail" of their information regarding the drug

trafficking operation in the apartments, which reflected "hidden,

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illegal activity, and not generally obtainable, irrelevant, or

non-incriminating facts." See Tiem Trinh, 665 F.3d at 11. CI-1

reported that he had been inside the apartment and had personally

observed Leonard packing crack cocaine for distribution and

possessing a pistol and ammunition. Additional information

specifically described the two apartments, the occupants and

furnishings, location of video monitoring devices, specifics about

Leonard's behavior, and other details. Similarly, CI-3 had

personally observed the presence of drugs and firearms in the

apartment and also provided details as to the use of the apartments

and how drug customers would enter the building.

Third, several components of the CIs' information were

corroborated. Significantly, there was "cross-corroboration"

between the multiple sources to different law enforcement

officers.6 See Barnard, 299 F.3d at 94. All three reported that

6 Leonard suggests that because Provost refers to each

confidential informant as "CI", it is possible that there are not

three different CIs but rather just a single CI. The district

court, however, concluded the opposite, finding that the affidavit

contained "consistent information provided by multiple

confidential informants." We do not think this finding was in clear

error. The way each CI is described in the affidavit shows that

Provost understood each CI to be a different person. See Barnard,

299 F.3d at 94. Provost provided different criminal histories,

motivations for working with law enforcement, and contributions to

prior investigations for each CI. Moreover, each CI interacted

with a different law enforcement officer and provided different

details of TOMCAT's operation that were broadly consistent. See

id. at 94-95.

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Leonard dealt crack cocaine. All three described Leonard's use of

the two apartments on the second and third floors of 41 Walnut

Street, with two of them detailing that Leonard lived on the third

floor and dealt drugs on the second floor. Two described the video

surveillance, two observed a firearm, and two noted that customers

used the rear door. Further, Provost himself conducted some

independent investigation regarding the details, including

reviewing the LPD system to verify that Leonard used the alias

"TOMCAT," that he lived at the address identified by the CIs, that

he had prior convictions for drug possession and trafficking, and

that he had been recently released from prison.7 "Taken together,

the source[s'] account[s]" and the detective's investigation

provided "substantial corroboration for the CI[s'] crucial

allegation of criminal conduct by defendant at his home." See id.

at 95.

Additionally, officers engaged a CI in a controlled buy.

The CI was searched for contraband before the buy and was followed

to Leonard's residence at 41 Walnut Street. The CI made contact

with Leonard, who was observed entering the rear door of the

7 Leonard contends that Provost's review of the LPD's internal

records does not count as corroboration for these purposes because

the information was publicly available. But the alias TOMCAT was

not readily available to the public.

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building and returning with a substance which later tested positive

for cocaine.

To be sure, the controlled buy was not free from

problems, and those problems were not disclosed in the warrant

affidavit. The recording and monitoring device placed on the CI

was ultimately unhelpful because of significant background noise.

However, the affidavit did not state that the device documented

useful evidence,8 and officers were able to surveil 41 Walnut

Street to at least some extent during the buy. Somewhat more

problematic is that the CI traveled away from 41 Walnut Street

with another person before meeting the agents to turn over the

purchased cocaine, raising at least a speculative possibility that

someone other than TOMCAT had been the source of the drugs the CI

turned over to police. But a "less than ideal" controlled buy can

still provide some support for a probable cause finding,

particularly where, as here, the buy yielded information that was

consistent with what the police were told by the three CIs.

Khounsavanh, 113 F.3d at 286; see also, e.g., United States v.

8 Indeed, the affidavit cites the CI personally and not a

recording as the source of information as to TOMCAT'S activities

during the buy. Leonard's contention that the affidavit "nowhere

suggests that police surveilled or even attempted to surveil the

suspect resident during the alleged transaction" is simply not

consistent with what the affidavit reports. The affidavit states

that the "CI was followed to the parking lot of 41 Walnut [Street]"

and that "[a]fter conducting the transaction[,] said CI was

followed back to the designated meet location."

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Genao, 281 F.3d 305, 309 (1st Cir. 2002); United States v. Garcia,

983 F.2d 1160, 1166–67 (1st Cir 1993). Probable cause only requires

a showing of a "fair probability" that contraband or evidence would

be found in the apartment, Khounsavanh, 113 F.3d at 283, and the

other aspects of the buy (including the CI's report that Leonard

provided the cocaine), the cross-corroboration of detailed

information about Leonard's criminal activity in the residence,

and the independent verification about residence, alias, and

criminal background by Provost, sufficiently corroborated the CIs'

factual statements advanced in support of the warrant.

Finally, as to the fourth Tiem Trinh factor, Provost

assessed from his professional experience the probable

significance of the informants' information. He described his five

years on the task force, his prior experience investigating drug

trafficking cases, and his experience preparing and participating

in the execution of numerous search warrants. He noted that based

on his training and experience, it was common for drug traffickers

to store in their residence records pertaining to their operations,

drug paraphernalia, and sums of money that are drug proceeds. "In

the eyes of the issuing justice, these statements could have

boosted the reliability" of the CIs' information as to Leonard's

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drug trafficking and firearms possession. See Barnard, 299 F.3d at

95.

Taken together, these facts--even based upon a reformed

affidavit to include the omissions--were sufficient to give the

issuing judge a substantial basis upon which to conclude that there

was a fair probability that contraband or evidence of a crime would

be found.

B. Nexus to Third-Floor Apartment

We turn to Leonard's alternate argument. He contends

that the affidavit, if reformed, would be insufficient to establish

a fair probability that evidence material to any crime would be

found in Leonard's third-floor apartment specifically. The

government argues in response that the claim should only be

reviewed for plain error because Leonard forfeited the theory by

never expressly arguing before the district court that the reformed

affidavit failed to establish nexus to the third-floor apartment.

The government further argues that even if the argument had been

fully preserved, Leonard cannot show that the reformed affidavit

would have undercut probable cause to search both apartments.

"A warrant application must demonstrate probable cause

to believe that (1) a crime has been committed—the 'commission'

element, and (2) enumerated evidence of the offense will be found

at the place to be searched—the so-called 'nexus' element." United

States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). With respect to

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the "nexus" element, a judicial officer must "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." Id. (alteration in original) (quoting Gates,

462 U.S. at 238). "The criterion . . . is whether the facts

presented in the affidavit would 'warrant a man of reasonable

caution' to believe that evidence of crime will be found." Id. at

87 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

With respect to a suspected drug dealer's residence,

"[t]he inquiry is not whether 'the owner of the property is

suspected of crime' but rather whether 'there is reasonable cause

to believe that the specific things to be searched for and seized

are located on the property to which entry is sought.'" United

States v. Roman, 942 F.3d 43, 51 (1st Cir. 2019) (quoting Zurcher

v. Stanford Daily, 436 U.S. 547, 556 (1978)). "A nexus . . . need

not, and often will not, rest on direct observation, but rather

can be inferred from the type of crime, the nature of the items

sought, the extent of an opportunity for concealment and normal

inferences as to where a criminal would hide [evidence of a

crime]." Id. (alterations in original) (internal quotation marks

omitted) (quoting Feliz, 182 F.3d at 88). To permit such an

inference of a nexus to a defendant's residence, the court looks

to whether "generalized observations" that "drug dealers tend to

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store evidence in their homes" are combined with "specific

observations, or facts, connecting the drug dealing to the home,"

such as "evidence that drug distribution was being organized from

[the defendant's] residence, that the defendant used his home as

a communications hub for drug activity, or that the defendant

move[d] back and forth from his residence in relation to the drug

transactions." Id. at 51–52 (alterations in original) (citations

omitted) (internal quotations omitted).

It is not necessary for us to decide whether Leonard

waived the nexus argument, because even if it were preserved,

Leonard cannot show the district court committed any error in

finding that the reformed affidavit would have supported probable

cause to search both the second- and third-floor apartments.

Provost made several "generalized observations" based on

his training and experience, such as the commonality of individuals

involved in illegal trafficking of drugs to: possess and store

more than one kind of scheduled drug; possess, maintain, and keep

at their residence records, journals, or notes pertaining to drug

trafficking; possess, maintain, and keep at their residence drug

paraphernalia; and possess, maintain, and keep with or near them,

including at their residence, sums of money.

The affidavit in this case combined those generalized

observations with "specific observations" connecting Leonard's

suspected drug trafficking to his third-floor apartment. While CI-

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1 and CI-2 described the specific drug trafficking as occurring on

the second floor, there was nevertheless sufficient information to

infer evidence would be found on the third floor as well. Two CIs

described Leonard's use of surveillance equipment which monitored

the hallways and common areas of the building. There appeared to

be a common street-level door that led to both floors and

frequently was utilized by customers and also by Leonard during

drug deals.

CI-1 noted that Leonard possessed a firearm and

ammunition, evidence that would likely be present where he lived

and not just where he conducted sales. Leonard had a history of

drug-related convictions and, when asked, CI-3 reported that

Leonard was the largest drug trafficker in the area at the time.

According to CI-1, the "TRAP" spot itself was sparsely furnished,

containing only a folding card table, permitting the inference

that Leonard kept important items, such as his cash and items he

bought with his drug proceeds, in a separate "safe yet accessible"

place, like his home. See, e.g., Feliz, 182 F.3d at 87–88. And, of

course, the place in which CIs observed Leonard to be in possession

of drugs and a firearm was just below his own known residence,

making it likely he could easily move such things between the two

apartments. The facts that would have been presented in a reformed

affidavit would still "warrant a man of reasonable caution" to

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believe it reasonably likely that evidence of crime would be found

in Leonard's third floor apartment. See id. at 86.

In sum, there was no error in the district court's ruling

that Leonard had failed to make the threshold showing necessary to

obtain a Franks hearing. If the omitted information had been

included in the warrant application, the reformed affidavit would

nevertheless have justified the necessary finding of probable

cause to search both apartments.

For the foregoing reasons, we affirm.