Tenth Reverses District Court's Order Granting Suppression

U.S. v. Herrera, 2015 WL 1516267 (4/6/15) (Col.) (Published) - The 10th reverses a suppression grant based on Franks. On the bright side, the 10th holds the district court did not abuse its discretion when it held an evidentiary hearing, even though Mr. Herrera had not made a sufficient showing to require such a hearing. The 10th says: "lots of things in the law, as in life, aren't mandatory but still permissible." District courts enjoy a "fair amount of discretion in choosing the procedures in resolving pretrial motions," the 10th asserts, "in a democratic legal order built on the promise of due process and the vindication of individual rights." From this lofty perch, the opinion goes downhill for Mr. Herrera.

The district court made two errors. First, it clearly erred when it found the search warrant affidavit recklessly created the false impression that the confidential informant(CI) knew that Mr. Herrera used his Ford Escape for drug smuggling as far back as 2009. The 10th did not find anything in the affidavit that indicated that knowledge. Rather, the affidavit showed the CI knew later, when the warrant was applied for, that Mr. Herrera owned an Escape and used it for his drug resupply runs. Second, in deciding whether the affidavit established probable cause without the untrue statement, the district court mistakenly struck virtually everything the CI said. The 10th saw no good reason for the court to disbelieve whatever the CI claimed, especially since much of what the CI said was corroborated. No suppression because there was plenty of probable cause based on the CI's statements and the corroboration thereof.