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 Plaintiff-Appellant.
Lisa Fine Moses of Knight & Moses, LLC, Littleton, Colorado, for Defendant-Appellee.
Before GORSUCH, SENTELLE,[*] and MURPHY, Circuit Judges.
GORSUCH, Circuit Judge.
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, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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 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 ...