August 20, 2019

Tenth Circuit: District Court has Wide Discretion Regarding Whether to Hold Franks Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Herrera on Monday, April 6, 2015.

Jose Herrera was suspected of drug trafficking, and an undercover officer sought a warrant to attach a GPS device to his car. In the warrant application, the officer attested that she and a confidential informant repeatedly purchased methamphetamine from Mr. Herrera, that Mr. Herrera had told them he was going to take a trip and would be unavailable, and that he was gathering funds. The officer further attested that in her experience these facts suggested Mr. Herrera was gathering funds for a meeting with an out-of-town supplier. A magistrate approved the warrant and officers attached the GPS device to Mr. Herrera’s vehicle, which showed Mr. Herrera making a quick trip to LA and heading quickly back to Colorado. Officers pulled the car over and found drugs in a hidden compartment in the vehicle.

Mr. Herrera moved to suppress the evidence from the search, arguing the warrant was unlawfully issued. The district court agreed, and the government appealed the suppression order. On appeal, the government argued that the district court erred by conducting a Franks hearing without requiring the defendant to make some showing that the officer’s affidavit contains a material reckless misstatement or omission. The Tenth Circuit disagreed, finding that the district court has broad discretion to conduct a hearing regardless of whether the defendant first makes a showing. Finding no abuse of discretion, the Tenth Circuit affirmed the district court’s allowance of a Franks hearing.

Next, the government argued the district erred in applying both aspects of the Franks test. At the first step, the district court found the officer’s affidavit recklessly created the impression Mr. Herrera had used his vehicle for drug smuggling since 2009, when in fact he did not obtain the vehicle until 2011. The district court also suggested the informant lacked more recent knowledge of the vehicle’s use in drug smuggling. However, the Tenth Circuit noted that the affidavit did not say anywhere that the vehicle dated to 2009, only that the informant knew from “past experience” that Mr. Herrera used the vehicle in drug smuggling. The Tenth Circuit further found the attesting officer seemed to have solid grounds for believing the informant. The Tenth Circuit failed to see any basis for the district court’s finding of recklessness.

Turning to the second part of the Franks test, the Tenth Circuit found the district court erroneously disregarded virtually everything the confidential informant said instead of striking the reckless statements and considering whether the affidavit could still stand. Although the confidential informant was an “unsavory character,” his information was reliable in many instances and it was erroneous for the district court to disregard his information.

The Tenth Circuit upheld the district court’s allowance of a Franks hearing but reversed the order suppressing evidence due to the district court’s misapplication of both parts of the Franks test.

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