United States v. Herrera, No. 13-1527 (10th Cir. 2015)Annotate this Case
The government applied for a warrant to attach a GPS tracking device to defendant-appellee Jose Herrera's car. A magistrate judge ultimately approved the warrant. The tracking device was attached to defendant's car. Officers pulled defendant over and discovered drugs in a hidden compartment. The district court, in review of defendant's motion to suppress evidence of the drugs, held that the warrant had been unlawfully issued and granted defendant's motion. In his motion to suppress, defendant argued that the government's conduct was in violation of "Franks v. Delaware," (438 U.S. 154 (1978)), which held that 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. To win an evidentiary hearing to prove a Franks violation, a defendant must do more than allege a problem with the warrant. The government argued on appeal, inter alia, that the district court erred in applying both aspects of the Franks test. "[T]the district court ... never issued a factual finding that the confidential informant [used as the basis for the warrant] was generally untrustworthy... neither could the district court have done so on this record." The Tenth Circuit concluded the district court misapplied both portions of the Franks test, so its order suppressing evidence was reversed. The case was remanded for further proceedings.