FILED

United States Court of Appeals

Tenth Circuit

April 6, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOSE HERRERA,

Defendant-Appellee.

No. 13-1527

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:12-CR-00392-MSK-1)

Robert Mark Russel, Assistant United States Attorney (John F. Walsh, United

States Attorney, with him on the briefs), Denver, Colorado, for PlaintiffAppellant.

Lisa Fine Moses of Knight & Moses, LLC, Littleton, Colorado, for DefendantAppellee.

Before GORSUCH, SENTELLE,

*

 and MURPHY, Circuit Judges.

GORSUCH, Circuit Judge.

*

 The Honorable David B. Sentelle, Senior Circuit Judge, United States

Court of Appeals for the District of Columbia Circuit, sitting by designation.

Appellate Case: 13-1527 Document: 01019410384 Date Filed: 04/06/2015 Page: 1 
The government wanted a warrant to attach a GPS tracking device to Jose

Herrera’s car. An undercover officer, Shannon Daly, attested in her warrant

application that she and a confidential informant repeatedly purchased

methamphetamine from Mr. Herrera; that Mr. Herrera recently told them he was

about to take a trip and wouldn’t be available to sell them more drugs for a little

while; and that he was busy at the moment collecting money from drug dealers in

his debt. The officer added that, in her experience and the informant’s, these

facts collectively suggested Mr. Herrera was gathering funds for an imminent

meeting with an out-of-town supplier to restock his inventory. A magistrate

agreed and approved the warrant. And soon enough the tracking device seemed to

confirm everyone’s suspicions: the next day it showed Mr. Herrera driving to Los

Angeles before then quickly turning for home in Colorado. When officers pulled

the car over they discovered drugs in a hidden compartment and made their arrest.

All the same, the charges soon landed in jeopardy when the district court

held that the warrant had been unlawfully issued and much of the evidence

against Mr. Herrera had to be suppressed. The government appeals this ruling,

arguing it is wrong for two reasons. We find the first of these reasons

unpersuasive but hold the second requires reversal.

The government’s first argument attacks less the substance of the district

court’s ruling than the process it used to get there. Before the district court, Mr.

Herrera argued that the government’s conduct ran afoul of Franks v. Delaware,

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438 U.S. 154 (1978). Under Franks, a Fourth Amendment violation occurs if (1)

an officer’s affidavit supporting a search warrant application contains a reckless

misstatement or omission that (2) is material because, but for it, the warrant could

not have lawfully issued. See id. at 155-56; United States v. Kennedy, 131 F.3d

1371, 1376 (10th Cir. 1997). To win an evidentiary hearing to prove a Franks

violation, a defendant must do more than allege a problem with the warrant. The

Supreme Court has directed that a defendant’s allegations “must be accompanied

by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of

witnesses should be furnished, or their absence satisfactorily explained.” Franks,

438 U.S. at 171; see also Kennedy, 131 F.3d at 1376. In this appeal the

government opens by suggesting that the district court committed reversible error

when it afforded Mr. Herrera a Franks hearing without first demanding that kind

of showing from him.

It seems to us the government’s argument mistakes Franks to prohibit what

it doesn’t require. Of course, a defendant has no right to an evidentiary hearing

unless he first makes the showing the Supreme Court has prescribed. But from

that it doesn’t follow that a district court errs when it grants a hearing without

such a showing. After all, lots of things in the law, as in life, aren’t mandatory

but still permissible. A criminal defendant isn’t constitutionally required to

testify but he is allowed to do so. He isn’t constitutionally compelled to file a

motion to dismiss but surely he may. And Franks speaks only of the showing a

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defendant must make to “mandate” an evidentiary hearing. 438 U.S. at 171. 

Nothing in the opinion or the logic on which it rests suggests a district court must

forswear an evidentiary hearing unless the defendant’s motion makes one

constitutionally compulsory. Neither does the government cite any other potential

source of authority for such a rule. 

To the contrary, district courts generally enjoy a fair amount of discretion

in choosing the procedures they find most helpful for resolving pretrial motions,

including whether to take the matter on the briefs, hear oral argument, or hold an

evidentiary hearing. And often enough courts will choose to err on the side of

granting more process than might be strictly necessary in order to ensure not only

that justice is done but that justice is seen to be done. Whether because of

intuition born of experience that a meritorious issue may lurk in an imperfectly

drawn application, or simply out of a jealous wish to guard individual rights

against governmental intrusions, judges sometimes allow a claimant a fuller

hearing than the law demands. In a democratic legal order built on the promise of

due process and the vindication of individual rights that’s often thought laudable

or at least generally permissible — and in any event not the stuff of automatic

reversal. So, as we’ve explained in another context, where an evidentiary hearing

isn’t mandatory it’s usually discretionary and the decision to grant one is subject

to review only for abuse of discretion. See Denver v. Kan. State Penitentiary, 36

F.3d 1531, 1535 (10th Cir. 1994). The government gives us no reason to think

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any more grudging a standard should apply here. Neither does it even attempt to

suggest how the district court might have abused its discretion when granting a

hearing in this case.

 Turning, then, from process to substance the government argues that the

district court erred in applying both aspects of the Franks test. At Franks’s first

step, the district court found that Officer Daly’s affidavit recklessly created the

false impression that the confidential informant knew Mr. Herrera used his black

Ford Escape for drug smuggling as far back as 2009 when, in fact, the court found

Mr. Herrera didn’t buy the Escape until 2011. The district court also suggested

that the informant lacked any more recent knowledge of the Escape and its use in

drug smuggling.

The trouble is, the affidavit doesn’t anywhere state that the informant’s

experience with the vehicle dated to 2009 and we cannot see how it creates that

impression either. Instead, the affidavit merely says that the confidential

informant knew from “past experience” that Mr. Herrera owned a black Ford

Escape and that he used it for his drug resupply runs. And the attesting officer

appeared to have solid grounds for believing the informant knew both these things

at the time of the warrant application in August 2012. By that point, the officer

and informant had been interacting with Mr. Herrera for several months. No one

disputes the informant told officers that Mr. Herrera owned a black Ford Escape

during this period or that Mr. Herrera did indeed own such a vehicle throughout

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2012. Early in the investigation, the informant told an officer that he had just

visited the home of Mr. Herrera’s boss where he saw Mr. Herrera and a black

Ford Escape. The informant added that he believed Mr. Herrera was about to

transport drugs from the house and would do so in the Escape. Months later, an

officer corroborated this information in part when he saw the Escape parked at

that same house. The confidential informant told officers, too, that during the

course of the investigation in 2012 he had been in the Ford Escape and even heard

about a false compartment in the vehicle used for hiding drugs, which he

attempted to discover. So by the time the attesting officer filed her warrant

application in August 2012, she had ample reason to believe that the informant

indeed had “past experience,” built over the last several months, suggesting both

the car’s ownership by Mr. Herrera and its use in drug smuggling. We are well

aware that to reverse a district court’s factual finding requires clear error, a high

hurdle requiring us to possess “a definite and firm conviction that a mistake has

been committed.” United States v. Lewis, 594 F.3d 1270, 1289 (10th Cir. 2010). 

But we simply fail to see any basis in this record for the district court’s finding

that the attesting officer recklessly created the false impression that the informant

knew of the car and its use in drug smuggling as far back as 2009, or that the

informant lacked any more recent experience with the Escape. 

The second part of the district court’s Franks analysis proves problematic

too. Here, a court must strike any intentional, knowing, or reckless misstatements

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in the warrant application affidavit and assess the affidavit without them. 438

U.S. at 155-56. If instead the affidavit contains intentional, knowing, or reckless

omissions, a court must add in the omitted facts and assess the affidavit in that

light. Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990). To be sure, acts

and omissions are often but two sides of the same coin and the one can be (re)cast

as the other. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56,

at 374 (5th ed. 1984). But whether we’re talking about acts or omissions the

judge’s job is much the same — we must ask whether a warrant would have

issued in a but-for world where the attesting officer faithfully represented the

facts. If so, the contested misstatement or omission can be dismissed as

immaterial. If not, a Fourth Amendment violation has occurred and the question

turns to remedy.

The district court did not follow this order of operations. It didn’t ask

whether an affidavit corrected for the putatively reckless mistaken impressions it

identified would still contain probable cause to support a search warrant. Instead,

the district court proceeded to disregard virtually everything the confidential

informant said that was included in the warrant application and analyzed the

probable cause question in that light. The district court’s chosen course seems to

rest on the implicit premise that once any statement of a speaker is found to be

false then all of the speaker’s other statements must be disregarded. Sometimes,

of course, that is a fair conclusion. Sometimes someone’s tall tale is just so

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incredible that it makes you disbelieve anything else that follows from his mouth. 

But often people prove reliable truth tellers in some areas even when they are not

in others. And in this case we have little reason to think the confidential

informant falls into the first category rather than the second. Indeed, the district

court itself never issued a factual finding that the confidential informant was

generally untrustworthy — let alone a factual finding that the attesting officer was

recklessly indifferent to that possibility. 

Neither could the district court have sustainably done so on this record. To

be sure, the record shows that the informant in this case (as in so many cases) was

an “unsavory character.” United States v. Avery, 295 F.3d 1158, 1168 (10th Cir.

2002). But the record also shows that the informant had proven himself a highly

knowledgeable source about Mr. Herrera’s drug enterprise. He introduced law

enforcement to Mr. Herrera. He made controlled purchases under the supervision

of law enforcement agents. An undercover officer corroborated the informant’s

statements through her own interactions with Mr. Herrera. All this occurred over

a period of several months. No one disputes that the informant was correct that

Mr. Herrera owned a black Ford Escape throughout the relevant time period in

2012, or that the informant heard it contained a secret compartment for drug

trafficking. In these circumstances, we just don’t see any sustainable way the

court could have disregarded all of the confidential informant’s evidence. See id.

(rejecting claim that an informant was generally untrustworthy when, despite his

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“unsavory character,” he “had provided reliable information on ten separate

occasions”).

A Franks hearing sometimes may be a matter of grace rather than right. 

But whether the hearing is mandated or permissive, the district court must apply

the same substantive legal standards. In this case, the district court misapplied

both portions of the Franks test so its order suppressing evidence must be and is

reversed. The case is remanded for further proceedings consistent with this

opinion. 

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