United States v. Herrera, 2015 U.S. App. LEXIS 5477

Law enforcement sought a warrant to attach a GPS tracker to Jose Herrera’s car based on an affidavit by undercover Officer Shannon Daly and statements from a confidential informant (CI).
The affidavit recounted multiple controlled purchases of methamphetamine from Herrera, the CI’s knowledge that Herrera owned a black Ford Escape with a false compartment, and statements suggesting Herrera was preparing to travel to meet an out-of-town supplier.
A magistrate issued the warrant; the tracker later showed Herrera driving toward Los Angeles and then returning to Colorado; a traffic stop uncovered drugs in a hidden compartment and led to arrest.
Herrera moved to suppress, alleging Franks violations (false statements/omissions in the affidavit); the district court held a Franks hearing, concluded parts of the affidavit were recklessly misleading, and suppressed evidence.
The government appealed, arguing (1) the district court erred by holding a Franks hearing without the Franks-required preliminary showing, and (2) the district court misapplied Franks in finding material misstatements/omissions.
The Court of Appeals reversed the suppression order, rejecting the government’s process objection but finding the district court misapplied Franks on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by granting a Franks evidentiary hearing without the preliminary showing Franks prescribes	Herrera: Franks requires a defendant to make a prima facie showing to mandate a hearing; absence of that showing means no hearing should have been held	Government: District court abused discretion by holding a hearing without the Franks-demanded showing	Court: No reversible error — district courts may permissibly grant hearings in their discretion; granting one when not mandatory is reviewable for abuse of discretion and none shown
Whether the district court correctly found reckless misstatements/omissions in the affidavit that required suppression under Franks	Herrera: Affidavit created a false impression (e.g., CI’s knowledge dated to 2009) and court should disregard CI’s statements, leaving insufficient probable cause	Government: Affidavit did not state or imply the CI’s knowledge dated to 2009; CI’s recent corroborated observations support probable cause; district court misapplied Franks by discarding all CI information rather than correcting identified errors and reassessing probable cause	Court: District court misapplied Franks — it erred in finding reckless impression about 2009 and in wholesale disregarding of CI statements; suppression reversed and case remanded

Franks v. Delaware, 438 U.S. 154 (1978) (establishes test for material intentional or reckless false statements/omissions in warrant affidavits and when an evidentiary hearing is required)
United States v. Kennedy, 131 F.3d 1371 (10th Cir. 1997) (discusses Franks preliminary showing standard)
Denver v. Kan. State Penitentiary, 36 F.3d 1531 (10th Cir. 1994) (discretionary nature of pretrial procedures and review for abuse of discretion)
Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990) (treatment of omissions vs. affirmative misstatements under Franks)
United States v. Avery, 295 F.3d 1158 (10th Cir. 2002) (informant credibility evaluation where an unsavory informant nonetheless provided reliable corroborated information)
United States v. Lewis, 594 F.3d 1270 (10th Cir. 2010) (standard of review for reversal of district court factual findings)