United States v. Allen Brown , 631 F.3d 638 ( 2011 )


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  •                                 PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    09-3643
    _____________
    UNITED STATES OF AMERICA,
    Appellant
    v.
    ALLEN BROWN, a/k/a ALLAN BROWN,
    Appellee
    _____________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    District Court Criminal No. 2:08-cr-00299-001
    District Judge: The Honorable Terrence F. McVerry
    _____________
    Argued June 21, 2010
    Before: SMITH, FISHER, and COWEN, Circuit Judges.
    (Filed: January 20, 2011)
    Rebecca R. Haywood, Esq. (Argued)
    1
    Office of the United States Attorney
    700 Grant Street, Suite 4000
    Pittsburgh, PA 15219
    Counsel for Appellant
    Elisa A. Long, Esq. (Argued)
    Marketa Sims, Esq.
    Office of the Federal Public Defender
    1001 Liberty Avenue
    1550 Liberty Center
    Pittsburgh, PA 15222
    Counsel for Appellee
    _____________
    OPINION OF THE COURT
    _____________
    SMITH, Circuit Judge.
    Defendant Allen Brown stands indicted on charges of
    bank robbery, 
    18 U.S.C. § 2113
    (a), and armed bank robbery,
    
    18 U.S.C. § 2113
    (d). The District Court granted Brown’s
    motion to suppress a sample of his DNA, on the ground that it
    had been obtained by way of a materially and recklessly false
    warrant affidavit, in violation of the Fourth Amendment as
    interpreted by Franks v. Delaware, 
    438 U.S. 154
     (1978). The
    United States appeals. We have jurisdiction, 
    18 U.S.C. § 3731
    , and will affirm.
    2
    I
    On the morning of October 1, 2007, two men wearing
    distinctive “Scream” masks 1 robbed an S&T Bank branch in
    Ford City, Pennsylvania at gunpoint, absconding with more
    than $24,000. The robbers initially fled the scene on foot,
    running about 150 yards to the Armstrong County School
    District Administration Building. There they made off with a
    school district van that an employee had left with the engine
    idling.
    Thirty minutes after the robbery, police found the van
    abandoned on Hobson Drive near Route 66, a half-mile from
    the administration building. Investigators later discovered a
    Scream mask containing DNA material inside the van.
    Witnesses reported seeing a silver Volkswagen Jetta driving
    in the area of Hobson Drive and Route 66 on the morning of
    the robbery. One witness had seen a silver Jetta parked in the
    area of Hobson Drive and Route 66 around the time of the
    robbery. A different witness had seen a silver Jetta driving
    southbound on Route 66 after the robbery had occurred. Two
    witnesses described the Jetta as having white license plates;
    one of them specified that the plates were from Maryland.
    1
    The mask is named for the 1996 Wes Craven horror film that
    popularized the design; its ghostly appearance recalls Edvard
    Munch’s painting The Scream. Such masks are commonly used as
    disguises by robbers and other criminals. See, e.g., Edecio Martinez,
    “Scream” Mask-Wearing Bandit Attempts Dunkin’ Donuts Heist on
    Long Island (Oct. 12, 2010, 8:14 a.m.),
    http://www.cbsnews.com/8301-504083_162-20019229-504083.html.
    3
    One of the bank tellers who had been present during
    the robbery advised Pennsylvania State Trooper Shane Lash
    that she and her co-workers had recognized one of the
    robbers’ voices as belonging to John Wingate, one of the
    bank’s regular customers. A Wingate acquaintance informed
    Lash that Wingate has a nephew who goes by the name
    “Dink” or “Dinky,” owns a silver Jetta, and visits Ford City
    frequently. Another acquaintance stated that he had seen
    “Dink,” Wingate, and a third man together at a Ford City gas
    station on the Saturday before the robbery. “Dink,” Lash
    learned, is Allen Brown’s nickname.
    When Lash eventually contacted Wingate himself, he
    acknowledged that his nephew lived in Temple Hills,
    Maryland, and had visited in mid-September 2007, but
    insisted that the nephew had not been in Ford City on or
    around October 1. Lash remained suspicious, and asked FBI
    Special Agent Robert Smith to have his colleagues investigate
    Brown’s Maryland residence. Baltimore-based Special Agent
    James Mollica interviewed Brown’s mother, who stated that
    her son had been visiting Wingate in Ford City at the end of
    September, and confirmed that he owned a silver Jetta.
    Wingate later admitted to Lash that Brown had in fact visited
    him around the date of the robbery. He further stated that
    Brown had gone out in his Jetta around 8:00 a.m. on October
    1 to buy groceries, and had returned around 10:00 a.m.
    At this point the investigation was focused on Brown.
    Lash and Smith decided to seek a DNA sample in the hope
    that they could match it to the material found on the Scream
    mask. This would require a warrant, so Smith requested that
    an Assistant United States Attorney in Pittsburgh assist him in
    4
    preparing an application and affidavit.        Smith had not
    participated in interviewing the witnesses who had seen the
    Jetta, so Lash filled him in via telephone and provided him
    with the written reports that had been generated during the
    investigation. Smith did not read any of the written witness
    statements, and did not review the investigation reports in any
    detail. Nevertheless, with the AUSA’s help, he prepared an
    affidavit in support of a warrant application.
    The affidavit contained only an abbreviated recitation
    of the known facts of the case. It mentioned the robber’s use
    of a Scream mask; the stolen van and the mask found inside;
    the fact that Brown had been visiting Ford City around the
    time of the robbery; and Wingate’s statement that Brown had
    left his home, driving a silver Jetta, at 8:00 and returned at
    10:00. Finally, Paragraph 7(c) of the affidavit contained the
    following averment:
    Police interviews of various witnesses following
    the robbery reported witnessing the stolen
    Armstrong County School District
    Administration van meet up with a silver
    Volkswagen Jetta having a possible Maryland
    registration. Witnesses then observed the silver
    Jetta drive away from the area where the van
    was left parked.
    After the AUSA had finished preparing the affidavit, Smith
    neither checked the affidavit’s contents against the
    investigation reports nor asked Lash to review its accuracy.
    Smith sent the affidavit off to Mollica, who signed and
    presented it to a federal magistrate judge as being true and
    5
    correct to the best of his knowledge. The magistrate issued
    the warrant, and after obtaining Brown’s DNA, investigators
    matched it to the material that they had found on the Scream
    mask.
    Paragraph 7(c) was false. At the Franks hearing
    conducted pursuant to Brown’s suppression motion, Lash
    testified that he never told Smith that “various witnesses” had
    seen the van “meet up” with the Jetta. Nor was there the sort
    of unbroken chain of observations conveyed by the claim that
    “[w]itnesses then observed the silver Jetta drive away.” As
    the District Court wrote in its opinion granting Brown’s
    motion to suppress, Paragraph 7(c) “appears to be crafted to
    give the U.S. Magistrate Judge the false impression of a
    continuous sequence of events observed by a number of
    witnesses.” United States v. Brown, 
    647 F. Supp. 2d 503
    , 511
    (W.D. Pa. 2009). The court went on: “Agent Smith . . .
    incorrectly concluded that non-existent evidence actually
    existed, and, more importantly, took the affirmative step of
    purposely incorporating the non-existent evidence into the
    affidavit.” 
    Id. at 513
    .2 Because the challenged statement had
    no basis in the evidence, the District Court held that Agent
    Smith had acted with reckless disregard for the truth. 
    Id.
     In
    accordance with Franks, the court proceeded to excise the
    false statement and reassess the affidavit’s contents:
    2
    The District Court also found that Smith had recklessly
    omitted various facts from the affidavit. Because these omissions do
    not affect our resolution of the case, we have no need to discuss
    them.
    6
    Without [Paragraph 7(c)], the affidavit is
    essentially reduced to the following facts: that
    on the morning of the robbery, Defendant left
    the residence of John Wingate “at around 8
    a.m.” in a silver or gray Volkswagen Jetta, and
    returned at “10 a.m., or thereabout” with Perry
    Bell.
    
    Id.
     The absence of any observation of the “meet-up,” the
    court concluded, “eviscerate[d] probable cause.”        
    Id.
    Accordingly, the court held that that evidence obtained
    through the execution of the warrant must be excluded from
    trial.   
    Id.
     (citing Franks, 
    438 U.S. at
    155–56).      The
    government timely appealed, requesting that we overturn the
    District Court’s suppression order.
    II
    Franks requires suppression of evidence obtained
    pursuant to a warrant issued on the basis of a false statement
    that was both material to the finding of probable cause and
    made either knowingly and intentionally or with reckless
    disregard for the truth.3 
    438 U.S. at
    155–56. The government
    3
    Although Smith did not sign the affidavit himself, and was
    not the source of the information on which the affidavit was based,
    both his conduct and that of the officers working upstream from him
    are relevant to our assessment of whether the affidavit was drafted
    knowingly and intentionally or with reckless disregard for the truth.
    See United States v. Shields, 
    458 F.3d 269
    , 276–77 (3d Cir. 2006)
    (“[I]t is beyond question that the police cannot insulate a deliberate
    falsehood from a Franks inquiry simply by laundering the falsehood
    through an unwitting affiant who is ignorant of the falsehood.”);
    7
    concedes that Paragraph 7(c) was both false and material, 4
    and Brown likewise concedes that the police did not act
    knowingly and intentionally. The only question on appeal is
    whether Smith’s conduct evinces a reckless disregard for the
    truth. The District Court’s articulation of the definition of
    recklessness (What does it mean, in the abstract, to act with
    reckless disregard for the truth?) is a purely legal question
    subject to plenary review. See United States v. Shields, 
    458 F.3d 269
    , 275–76 (3d Cir. 2006). The application of that
    standard to the facts of a given case (Did the behavior of the
    officers in this case rise to the level of recklessness?) is a
    mixed question of law and fact, as to which this Court has not
    United States v. Calisto, 
    838 F.2d 711
    , 714 (3d Cir. 1988) (holding
    that the conduct of officers who relayed facts to the affiant was
    relevant to the Franks inquiry).
    4
    If the issue had been raised, we would affirm the District
    Court’s holding with respect to materiality. That conclusion is a
    legal one reviewed de novo. See, e.g., United States v. Awadallah,
    
    349 F.3d 42
    , 65 (2d Cir. 2003). The question is whether, after the
    offending language is removed, the affidavit’s four corners still
    contain sufficient evidence to support a finding of probable cause.
    Franks, 
    438 U.S. at 156
    ; Wilson v. Russo, 
    212 F.3d 781
    , 789 (3d Cir.
    2000); cf. United States v. Zimmerman, 
    277 F.3d 426
    , 431 n.3 (3d
    Cir. 2002) (“We, of course, must confine ourselves to the facts that
    were before the issuing magistrate—in other words, the affidavit.”).
    What little is left after excision is insufficient to establish a “fair
    probability that . . . evidence of a crime will be found in a particular
    place,” Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983) (quoting United
    States v. Jones, 
    362 U.S. 257
    , 271 (1960)), because it does not
    connect Brown’s Jetta to the stolen van, and there is nothing else
    from which the magistrate could have inferred that Brown committed
    the robbery.
    8
    yet articulated the proper standard of review. We now join
    the unanimous voice of our sister courts of appeals5 in holding
    that a district court’s resolution of the question whether a
    particular false statement in a warrant affidavit was made with
    reckless disregard for the truth is subject to reversal only upon
    a finding of clear error.
    In Miller v. Fenton, 
    474 U.S. 104
    , 114 (1985), the
    Supreme Court explained that “in those instances in which
    Congress has not spoken and in which the issue falls
    somewhere between a pristine legal standard and a simple
    historical fact, the fact/law distinction at times has turned on a
    determination that, as a matter of the sound administration of
    justice, one judicial actor is better positioned than another to
    decide the issue in question.” See also Edwards & Elliott,
    Federal Standards of Review § I.D (West 2007). De novo
    5
    See United States v. Campbell, 
    603 F.3d 1218
    , 1228 (10th
    Cir. 2010); United States v. Robinson, 
    546 F.3d 884
    , 889 (7th Cir.
    2008); United States v. Looney, 
    532 F.3d 392
    , 395 (5th Cir. 2008);
    United States v. Rice, 
    478 F.3d 704
    , 709 (6th Cir. 2007); United
    States v. Awadallah, 
    349 F.3d 42
    , 65 (2d Cir. 2003); United States v.
    Kyllo, 
    190 F.3d 1041
    , 1045 (9th Cir. 1999), rev’d on other grounds,
    
    533 U.S. 27
     (2001); United States v. Owens, 
    167 F.3d 739
    , 747 (1st
    Cir. 1999); United States v. Vanness, 
    85 F.3d 661
    , 662–63 (D.C. Cir.
    1996); 
    id. at 664
     (Tatel, J., concurring) (joining the panel’s
    conclusion “that the district court did not commit clear error in
    finding that the detective on whose affidavit the search warrant was
    based did not knowingly or recklessly include a false statement in his
    affidavit”); United States v. Falls, 
    34 F.3d 674
    , 681–82 (8th Cir.
    1994); United States v. Cancela, 
    812 F.2d 1340
    , 1343 (11th Cir.
    1987). Reflecting its limited jurisdiction, the Federal Circuit has yet
    to cite Franks in a majority opinion.
    9
    review is favored where there is a need for appellate courts to
    control and clarify the development of legal principles, and
    where considered, collective judgment is especially important.
    Ornelas v. United States, 
    517 U.S. 690
    , 697 (1996); Edwards
    & Elliott, supra, at § I.D. By contrast, issues involving
    assessments of witness credibility and juror bias are wrapped
    up in evaluations of demeanor that a trial judge is in a better
    position to decide; appeals courts therefore defer to district
    court factfinding in the absence of clear error. Miller, 
    474 U.S. at
    114–15.
    The Ninth Circuit provided a valuable excursus on
    these principles in United States v. McConney, 
    728 F.2d 1195
    (9th Cir. 1984) (en banc). The question was whether a district
    court’s finding that exigent circumstances justified a
    warrantless search was subject to de novo or clear-error
    review. The court began by setting out the basic framework
    just discussed: factual findings are reviewed only for clear
    error because the trial court is in a “superior position to
    evaluate and weigh the evidence,” and because sound
    allocation of resources favors relieving appellate courts of the
    burden of undertaking “full-scale independent review and
    evaluation of the evidence.” 
    Id. at 1201
     (citation and internal
    quotation marks omitted). Conversely, appellate courts are
    freer to consider legal questions carefully because they are not
    required to expend time hearing evidence. In addition, the
    “collaborative, deliberative process of appellate courts
    reduces the risk of judicial error on questions of law.” 
    Id.
    Furthermore, because stare decisis has the effect of binding
    persons who are not parties to an individual lawsuit, sound
    judicial administration favors the concentration of appellate
    efforts on ensuring correct legal determinations. Factual
    10
    findings bind only the parties before the court, have little
    effect on the world at large, and accordingly are less in need
    of close appellate review. 
    Id.
    The appropriate standard of review for mixed-question
    cases is determined by reference to the underlying principles
    of sound judicial administration:
    If application of the rule of law to the facts
    requires an inquiry that is “essentially
    factual”—one that is founded “on the
    application of the fact-finding tribunal’s
    experience with the mainsprings of human
    conduct”— the concerns of judicial
    administration will favor the district court, and
    the district court’s determination should be
    classified as one of fact reviewable under the
    clearly erroneous standard. If, on the other
    hand, the question requires us to consider legal
    concepts in the mix of fact and law and to
    exercise judgment about the values that animate
    legal principles, then the concerns of judicial
    administration will favor the appellate court,
    and the question should be classified as one of
    law and reviewed de novo.
    
    Id. at 1202
     (quoting Pullman-Standard v. Swint, 
    456 U.S. 273
    , 288 (1982); Comm’r v. Duberstein, 
    363 U.S. 278
    , 289
    (1960)). This calculus will generally favor de novo review,
    “because usually the application of law to fact will require the
    consideration of legal concepts and involve the exercise of
    judgment about the values underlying legal principles.” 
    Id.
    11
    As examples, the court cited cases in which de novo review
    applied to trial-court conclusions that the defendant’s conduct
    had not constituted a conspiracy in violation of the Sherman
    Act, United States v. Gen. Motors Corp., 
    384 U.S. 127
    , 141
    n.16 (1966), and that a transaction did not fall within a
    particular provision of the Internal Revenue Code, Helvering
    v. Tex-Penn Oil Co., 
    300 U.S. 481
    , 491 (1937). See
    McConney, 
    728 F.2d at
    1202–03. Both cases involved the
    construction and application of legislation, and thus required
    the exercise of considered legal judgment. McConney itself
    likewise concluded that de novo review applies to a
    determination regarding the existence of exigent
    circumstances, because resolution of the question “requires us
    to consider abstract legal doctrines, to weigh underlying
    policy considerations, and to balance competing legal
    interests”—a process that “necessarily involves us in an
    inquiry that goes beyond the historical facts.” 
    Id. at 1205
    .
    Crucially for our purposes, the en banc Ninth Circuit
    was at pains to point out that there are exceptions to the
    “general predominance of factors favoring de novo review.”
    
    Id. at 1203
    . Relevant here is the court’s explanation that
    some mixed questions involve a “strictly factual test,” such
    that once the test is stated no legal reasoning is necessary to
    the resolution of the issue. 
    Id.
     The considerations related to
    legal correctness and the development of precedent thus carry
    diminished weight. At the same time, the factual nature of the
    determination favors the trial court’s experience and first-
    hand observation of testimony and other evidence. The
    primary example of this sort of mixed question put forth by
    the McConney court was state of mind, with specific reference
    to Pullman-Standard’s discussion of “actual motive” under
    12
    Title VII of the Civil Rights Act of 1964. The Pullman-
    Standard Court distinguished “actual motive” from “some
    legal concept of discriminatory intent,” and concluded that the
    former is a “pure question of fact” to be reviewed for clear
    error. 
    456 U.S. at 289, 290
    .6
    6
    The second mixed question identified by the Ninth Circuit as
    being subject to clear error review was whether established facts
    constitute negligence: Because adjudication of negligence requires
    applying “the data of practical human experience” in order to
    determine the meaning of reasonableness under prevailing
    community standards, “the trial court’s findings of fact effectively
    determine [the appellate court’s] legal conclusions.” McConney, 
    728 F.2d at 1204
     (citations omitted). On this point the court noted its
    disagreement with some other circuits, 
    id.
     at 1204 n.11 (citing Great
    Atl. & Pac. Tea Co. v. Brasileiro, 
    159 F.2d 661
    , 665 (2d Cir.
    1947)), and indeed it appeared at one time that this Court might have
    been one of those with which the Ninth Circuit disagreed. See
    Universal Minerals, Inc. v. C. A. Hughes & Co., 
    669 F.2d 98
    , 102 (3d
    Cir. 1981) (“An ultimate fact is usually expressed in the language of
    a standard enunciated by case-law rule or by statute, e.g., an actor’s
    conduct was negligent . . . .”) (citation omitted). We have now,
    however, repeatedly reaffirmed that “[a] finding of negligence is, as
    a general rule, considered a finding of fact reviewable by an appellate
    court under the clearly erroneous standard.” Travelers Indem. Co.
    v. Ewing, Cole, Erdman & Eubank, 
    711 F.2d 14
    , 17 (3d Cir. 1983)
    (citing Sun Oil Co. v. Humble Oil & Ref.Co., 
    431 F.2d 1119
     (3d Cir.
    1970); Wright & Miller, Federal Practice and Procedure § 2590 (1st
    ed. 1971 & Supp. 1983)); En Hui Huang v. Att’y Gen., 
    620 F.3d 372
    ,
    385 (3d Cir. 2010). Our jurisprudence on this question falls neatly in
    line with the Ninth Circuit’s account.
    13
    Applying this functional analysis, our task in this case
    is to ask whether recklessness under Franks is an “essentially
    factual” question about an officer’s state of mind. Pullman-
    Standard, 
    456 U.S. at 288
    . If so, the principles of judicial
    administration favor deferential review of the District Court’s
    conclusions. In this Circuit, the rule is that “[a]n assertion is
    made with reckless disregard when ‘viewing all the evidence,
    the affiant must have entertained serious doubts as to the truth
    of his statements or had obvious reasons to doubt the accuracy
    of the information he reported.’” Wilson v. Russo, 
    212 F.3d 781
    , 788 (3d Cir. 2000) (citations omitted). This definition
    provides two distinct ways in which conduct can be found
    reckless: either the affiant actually entertained serious doubts;
    or obvious reasons existed for him to do so, such that the
    finder of fact can infer a subjectively reckless state of mind.
    Neither prong involves the application of legal reasoning or
    judgment. The judge is not asked to construe a statute’s text
    or to assess its purpose in order to ascertain whether an
    affiant’s actions are covered. The test simply asks the court to
    discern whether “serious doubts” or “obvious reasons”
    existed. The answer to each of those questions is a matter of
    fact. Serious doubts exist or they do not; a reason for doubt
    exists or it does not and is obvious or is not. If either question
    posed in Wilson is answered affirmatively, nothing further
    need be asked before the officer is found reckless. Thus the
    Franks recklessness determination is an “essentially factual”
    inquiry. 7
    7
    Two related observations warrant mention. First, under
    Franks the more egregiously impermissible state of mind is
    “knowingly and intentionally.” 
    438 U.S. at 155
    . This Court has not
    developed any technical legal definition of this phrase, which is
    14
    Analysis of the specific considerations underlying the
    Miller-McConney framework confirms this conclusion. First,
    ascertaining the existence of “serious doubts” is likely to turn
    in substantial part on observations of the demeanor during the
    Franks hearing of (inter alia) the allegedly reckless officer
    himself. The trial judge is better positioned than the judges on
    an appellate panel to evaluate an officer’s honesty when he
    testifies, “No, Your Honor, I didn’t entertain serious doubts
    about the accuracy of that statement I made under oath.”
    Similarly, what is obvious in a given case will frequently
    depend on background circumstances and facts about the
    community, of which a trial judge is more apt to be aware
    than an appellate panel. Recklessness determinations are also
    likely to be highly fact-dependent, and thus to carry little
    precedential value: decisions will typically turn on what a
    particular officer did and either knew or should have known.
    Review of such determinations does not warrant substantial
    expenditure of appellate resources, because the answers to the
    questions presented will not be of much use in future cases
    analogous to Pullman-Standard’s “actual intent” inquiry. See 
    456 U.S. at
    289–90. As in Pullman-Standard, a district court’s
    conclusion regarding the knowing and intentional character of an
    affiant’s actions is a factual finding reviewable only for clear error.
    It would be incongruous to treat recklessness differently, given that
    it is just another prong of the same test.
    Second, in order to obtain a Franks hearing a defendant is
    required to establish his “allegation of perjury or reckless disregard
    . . . by a preponderance of the evidence.” Franks, 
    438 U.S. at 156
    .
    Facts, not legal rulings, are determined in accordance with the
    preponderance standard, and once found they are reviewed for clear
    error. See, e.g., United States v. Grier, 
    475 F.3d 556
    , 561 (3d Cir.
    2006) (en banc).
    15
    with different fact patterns. The overarching goals of judicial
    administration thus favor affording deference to the trial
    court’s findings.
    One potential objection requires an answer. In Miller,
    the Supreme Court specifically cited “proof of actual malice
    in First Amendment libel cases” as one instance where “the
    relevant legal principle can be given meaning only through its
    application to the particular circumstances of a case,” so that
    de novo review is appropriate. 
    474 U.S. at 114
    . Because the
    courts have derived the Franks recklessness standard from
    First Amendment actual malice cases,8 one might contend that
    de novo review should apply here as well.
    The response to this argument begins with the
    observation that “actual malice” is merely a term of art that
    encompasses several different culpable states of mind; the
    inquiry is just as factual in nature as the assessment of “actual
    motive” in Pullman-Standard. Ticking off the elements
    requires no legal judgment. The Supreme Court said as much
    in the case that is the ultimate source of Wilson’s recklessness
    standard: “The defendant in a defamation action brought by a
    8
    The genealogy is as follows: Wilson cited United States v.
    Clapp, 
    46 F.3d 795
    , 801 & n.6 (8th Cir. 1995); Clapp cited United
    States v. Dorfman, 
    542 F. Supp. 345
    , 369 (N.D. Ill. 1982), aff’d sub
    nom. United States v. Williams, 
    737 F.2d 594
     (7th Cir. 1984), cert.
    denied, 
    470 U.S. 1003
     (1985); and Dorfman cited United States v.
    Davis, 
    617 F.2d 677
    , 694 (D.C. Cir. 1979). Davis imported into the
    Fourth Amendment context the Supreme Court’s First Amendment
    reckless-disregard jurisprudence, as articulated in St. Amant v.
    Thompson, 
    390 U.S. 727
     (1968).
    16
    public official cannot, however, automatically insure a
    favorable verdict by testifying that he published with a belief
    that the statements were true. The finder of fact must
    determine whether the publication was indeed made in good
    faith.” St. Amant v. Thompson, 
    390 U.S. 727
    , 732 (1968)
    (emphasis added). Good faith determinations under the First
    Amendment (and hence under the Fourth) are rendered, in the
    first instance, by the finder of fact. They are thus, necessarily,
    “essentially factual” in nature.
    Why, then, is the First Amendment actual malice
    question subject to close appellate scrutiny? The answer lies
    in its importance to the preservation of an enumerated
    constitutional right. The Miller Court’s observation that
    actual malice is subject to de novo review was grounded in a
    citation to Bose Corp. v. Consumers Union, 
    466 U.S. 485
    , 503
    (1984). In Bose, the Court relied heavily on statements in
    case law to the effect that in cases in which constitutional
    values—specifically, First Amendment values—are at stake,
    the appellate courts play a special role in “mak[ing] sure that
    [the actual malice rule] is correctly applied.” 
    Id. at 502
    . The
    constitutional nature of the right being protected made the
    difference in the Court’s decision to review an assessment of
    state of mind—ordinarily a factual issue—de novo.
    But, an objector might respond, although this case does
    not deal with the First Amendment, it does involve the Fourth.
    Is that not enough? The answer is “No,” for in fact there is no
    constitutional right at stake here: the exclusionary rule is
    merely a “judicially created remedy designed to safeguard
    Fourth Amendment rights generally through its deterrent
    effect.” United States v. Calandra, 
    414 U.S. 338
    , 348 (1974).
    17
    In contrast, Bose involved the personal right to speak freely.
    Thus, “[t]he requirement of independent appellate review
    reiterated in New York Times Co. v. Sullivan is a rule of
    federal constitutional law,” adopted as part and parcel of the
    Court’s protection of both individual acts of speech and the
    entire marketplace of ideas. Bose, 
    466 U.S. at
    510–11.
    Whereas a libel judgment entered in the absence of actual
    malice works a First Amendment wrong, admission at trial of
    “fruits of a past unlawful search or seizure ‘[works] no new
    Fourth Amendment wrong.’ The wrong condemned by the
    Amendment is ‘fully accomplished’ by the unlawful search or
    seizure itself . . . .” United States v. Leon, 
    468 U.S. 897
    , 906
    (1984) (quoting Calandra, 
    414 U.S. at 354
    ). Moreover, the
    Supreme Court has “repeatedly rejected the argument that
    exclusion is a necessary consequence of a Fourth Amendment
    violation.” Herring v. United States, 
    129 S. Ct. 695
    , 700
    (2009) (citing Leon, 
    468 U.S. at
    905–06; Pa. Bd. of Prob. &
    Parole v. Scott, 
    524 U.S. 357
    , 363 (1998); Arizona v. Evans,
    
    514 U.S. 1
    , 13–14 (1995)). The presence or absence of
    recklessness has no bearing on the defendant’s constitutional
    rights, which are violated, if at all, by the execution of a
    warrant obtained through the use of a materially false
    application. The recklessness inquiry goes only to the
    determination whether a particular violation is of a sort that is
    so in need of deterrence that the exclusionary remedy is
    merited. See Herring, 
    129 S. Ct. at 702
     (“To trigger the
    exclusionary rule, police conduct must be sufficiently
    deliberate that exclusion can meaningfully deter it, and
    sufficiently culpable that such deterrence is worth the price
    paid by the justice system.”).
    18
    The considerations that led the Bose Court to engage in
    heightened appellate scrutiny do not come into play in a
    Franks recklessness case, because in such a case the court is
    faced only with a garden-variety factual inquiry that does not
    directly affect anyone’s constitutional rights.9 We therefore
    hold that clear-error review applies to the District Court’s
    finding that Smith acted recklessly.
    III
    Before assessing whether the District Court’s
    conclusion was clearly erroneous, we pause to observe that
    Judge M cVerry correctly explicated this Circuit’s
    recklessness standard. The court properly cited Wilson for the
    proposition that “[a]ssertions are made with a reckless
    disregard for the truth when, after viewing all of the evidence,
    an officer must have entertained serious doubts as to the truth
    9
    To the extent that a Franks case does implicate constitutional
    values, it should be noted that Miller made clear that the presence of
    a constitutional question does not automatically require that a mixed
    question be reviewed de novo. When, for instance, “the issue
    involves the credibility of witnesses and therefore turns largely on an
    evaluation of demeanor, there are compelling and familiar
    justifications for leaving the process of applying law to fact to the
    trial court.” Miller, 
    474 U.S. at 114
    . Thus, “juror bias merits
    treatment as a ‘factual issue’ . . . notwithstanding the intimate
    connection between such determinations and the constitutional
    guarantee of an impartial jury.” 
    Id.
     at 114–15; Edwards & Elliott,
    supra, at § I.D. As we have already observed, the recklessness
    inquiry will frequently involve evaluations of demeanor and
    credibility, which are, like the assessment of juror bias, best suited to
    the competencies of the trial court.
    19
    of what was being asserted or had obvious reasons to doubt
    the accuracy of the information which he was asserting.” 
    647 F. Supp. 2d at
    512 (citing Wilson, 
    212 F.3d at 788
    ).
    Recklessness, the court went on, “is measured by the conduct
    of the investigating officer(s).” 
    Id.
     The government argues
    that the court in fact applied a negligence standard, rather than
    the proper recklessness test, on the basis that its opinion
    “faults Agent Smith, not for including a statement about
    which he ‘must have entertained serious doubts,’ but for not
    having taken investigatory steps that would have led him to
    the truth.” In the government’s view, the District Court’s
    statement that “[t]o have asserted the existence of
    [nonexistent] evidence in the face of readily available access
    to actual evidence to the contrary was a reckless disregard for
    the truth,” id. at 513, gives away the game by implying that
    Smith’s error was his failure to confirm his statement. After
    all, it is clear that, “in general, the failure to investigate fully
    is not evidence of an affiant’s reckless disregard for the
    truth.” United States v. Dale, 
    991 F.2d 819
    , 844 (D.C. Cir.
    1993).
    We read the opinion differently. As we see it, the
    major flaw identified by the District Court is not negligence in
    reviewing the evidence but rather Smith’s conclusion “that
    non-existent evidence actually existed, and, more importantly,
    [his decision to take] the affirmative step of purposely
    incorporating the non-existent evidence into the affidavit.”
    647 F. Supp 2d at 513. The existence of contradictory
    evidence highlighted the problem with Smith’s affidavit, but
    (according to the District Court) Smith’s reckless disregard
    for the truth occurred when he made up Paragraph 7(c) out of
    whole cloth. Such a fabrication, in the District Court’s view,
    20
    would justify invocation of the exclusionary rule regardless of
    whether or not police are in possession of evidence giving it
    the lie.
    We agree with the District Court’s opinion, so
    understood. The underlying theory is that, ordinarily, a
    person does not believe something to be true (let alone swear
    in an affidavit that it is “true and correct to the best of my
    knowledge, information, and belief”) without an affirmative
    justification. That justification might come in the form of
    first-hand observation, or from information provided by a
    third party, or from some textual source, but we do not take
    seriously someone who claims that X is true but cannot
    provide any reason for thinking it so. In other words, a
    reasonable person’s default position is to doubt that a
    proposition is true until there are grounds to believe it. The
    absence of sufficient grounding to support an averment
    therefore constitutes an “obvious reason[] for doubt” under
    Wilson, 
    212 F.3d at 788
    , allowing the court to infer that an
    affiant acted with reckless disregard for the truth. Cf., e.g.,
    Beard v. City of Northglenn, 
    24 F.3d 110
    , 116 (10th Cir.
    1994) (observing that a “factfinder may infer reckless
    disregard from circumstances evincing ‘obvious reasons to
    doubt the veracity’ of the allegations”) (quoting United States
    v. Williams, 
    737 F.2d 594
    , 602 (7th Cir. 1984) (quoting St.
    Amant, 
    390 U.S. at 731
    )). The First Amendment case from
    which the reckless disregard standard is drawn makes this
    clear:
    The defendant in a defamation action brought
    by a public official cannot, however,
    automatically insure a favorable verdict by
    21
    testifying that he published with a belief that the
    statements were true. The finder of fact must
    determine whether the publication was indeed
    made in good faith. Professions of good faith
    will be unlikely to prove persuasive, for
    example, where a story is fabricated by the
    defendant, is the product of his imagination, or
    is based wholly on an unverified anonymous
    telephone call. Nor will they be likely to
    prevail when the publisher’s allegations are so
    inherently improbable that only a reckless man
    would have put them in circulation. Likewise,
    recklessness may be found where there are
    obvious reasons to doubt the veracity of the
    informant or the accuracy of his reports.
    22
    St. Amant, 
    390 U.S. at 732
     (emphasis added).10 The fact that
    10
    The St. Amant Court delineated several valid bases for
    inferring that a speaker did not act with good faith, of which “obvious
    reasons [for] doubt” was but one. Wilson and other cases importing
    the St. Amant standard into the Fourth Amendment context have
    folded the other bases into the catch-all “obvious reasons,” so that
    fabrication, being a figment of one’s imagination, having been made
    on the basis of an unverified anonymous tip, and inherent
    improbability should all be understood as subsets of the set of
    possible circumstances that can constitute “obvious reasons to doubt”
    a statement’s veracity. Any of these circumstances is sufficient to
    allow an inference that the affiant acted with reckless disregard for
    the truth.
    This reading of the case law is borne out by a perusal of the
    genealogy outlined in note 8, supra. The language of our test
    (“viewing all the evidence, the affiant must have entertained serious
    doubts as to the truth of his statements or had obvious reasons to
    doubt the accuracy of the information he reported,” Wilson, 
    212 F.3d at 788
    ) is taken from Clapp, 
    46 F.3d at
    801 & n.6; Clapp quoted
    Dorfman, 
    542 F. Supp. at 369
    ; and Dorfman cited Davis, 617 F.2d at
    694. Davis compressed the above block-quotation from St. Amant
    thusly:
    [T]he Court observed that reckless disregard for the
    truth requires a showing that the defendant “in fact
    entertained serious doubts as to the truth of his
    publication.” This subjective test may be met not
    only by showing actual deliberation but also by
    demonstrating that there existed “obvious reasons to
    doubt the veracity of the informant or the accuracy of
    his reports.”
    617 F.2d at 694 (quoting St. Amant, 
    390 U.S. at 731, 732
    ). The D.C.
    Circuit’s summary omits the bulk of the paragraph from which the
    “obvious reasons” language is taken. We understand this move as a
    23
    a statement is a fabrication or a figment of a speaker’s
    imagination is sufficient reason for finding that it was not
    made in good faith—i.e., that it was made with (at least)
    reckless disregard for the truth—even if the speaker testifies
    that he believed the statement to be true. Although the
    District Court did not clearly articulate this epistemological
    conception of recklessness, such a theory lies at the heart of
    its ruling.
    This comports with Herring’s holding that, “[t]o
    trigger the exclusionary rule, police conduct must be
    sufficiently deliberate that exclusion can meaningfully deter
    it, and sufficiently culpable that such deterrence is worth the
    price paid by the justice system.” 
    129 S. Ct. at 702
    . The
    invention of baseless averments is plainly the sort of behavior
    that exclusion can be expected to deter: an officer wishing to
    avoid suppression need only look at the evidence before him
    and determine whether it backs up his affidavit, or
    communicate with another officer who has sufficient grounds
    for establishing a belief in the matter in question. He need not
    waste his time on needlessly duplicative fact-checking; all
    that is required is that his belief in the facts to which he
    swears have a sufficient grounding. This is also a brand of
    behavior worth deterring: the idea of a police officer
    fabricating facts or even entire affidavits in order to obtain
    probable cause is quite obviously repugnant to the Fourth
    Amendment. To hold that an officer cannot be found reckless
    unless he actually possesses information contradicting his
    distillation of the Supreme Court’s discussion, rather than as an effort
    to eliminate several of the approved grounds for inferring
    recklessness.
    24
    averment would be to grant license to do just that. Police
    should be expected to collect and review evidence before
    seeking a warrant to invade a citizen’s home and person, and
    should not be permitted to rely on unsubstantiated hunches.
    Accordingly, we hold that a court may properly infer that an
    affiant acted with reckless disregard for the truth where his
    affidavit contains an averment that was without sufficient
    basis at the time he drafted it.
    IV
    As our dissenting colleague emphasizes, Smith
    “believed that the information in the affidavit was accurate at
    the time he drafted it,” and thus did not knowingly make his
    false statement. But that is not the end of the Franks test. 11
    The question here is whether Smith’s statement was made
    with reckless disregard for the truth, or whether he acted only
    negligently. For we are mindful that, “[u]nder Franks,
    negligent police miscommunications in the course of
    acquiring a warrant do not provide a basis to rescind a warrant
    and render a search or arrest invalid.” Herring, 
    129 S. Ct. at 703
    . Had Smith merely negligently misheard Lash, or had
    Lash negligently misspoken, Herring would control. Because
    11
    For this reason, our colleague’s observation, that “[i]t is
    actually implausible to surmise that [Smith] would have acted in such
    an unreasonable and even surprising manner given that the correct
    facts would have been more than sufficient to establish probable
    cause,” is a red herring. The question before us is not knowledge or
    intent, to which motive or lack thereof would be relevant, but
    whether Smith entertained serious doubts or had obvious reasons to
    do so.
    25
    an affidavit that is only negligently false is not subject to
    excision under Franks, evidence collected under the auspices
    of a warrant supported by such an affidavit would not be
    subject to suppression.
    In the case now before us, the District Court was on sound
    footing when it concluded that Smith’s false assertion was not
    a result of merely negligent miscommunication. Smith did
    not claim that Lash specifically told him that witnesses saw
    the two vehicles meet up, and Lash testified that he did not
    tell Smith that he saw the vehicles meet. Smith’s false
    averment had no basis in any of the materials with which he
    had been presented. He had no reason to believe that the
    statement in question was true. At the suppression hearing, he
    was unable to come up with any explanation of the origin of
    the false claim that multiple witnesses had observed the Jetta
    meeting up with the getaway van and then driving away. He
    essentially acknowledged that he had conjured Paragraph 7(c)
    out of thin air. Contra the dissent’s assertion, Smith did not
    merely fail to corroborate his averment; he failed ever to
    develop any basis for it in the first place. Because the total
    lack of an evidentiary basis for making an averment can
    constitute an obvious reason for doubting that averment’s
    veracity, the District Court did not clearly err in finding that
    Smith’s conduct rose beyond the level of negligence, to the
    point of recklessness. We will affirm the suppression order.
    26
    United States v. Brown, No. 09-3643, dissenting.
    COWEN, Circuit Judge.
    Because the record does not support the District
    Court’s determination that Smith acted with reckless
    disregard for the truth when he incorporated paragraph 7(c)
    into the warrant affidavit, I respectfully dissent.
    As the majority correctly notes, we have previously
    explained that “[a]n assertion is made with reckless disregard
    when viewing all the evidence, the affiant must have
    entertained serious doubts as to the truth of his statements or
    had obvious reasons to doubt the accuracy of the information
    he reported.” Wilson v. Russo, 
    212 F.3d 781
    , 788 (3d Cir.
    2000) (internal quotation marks and citation omitted). The
    majority also properly characterizes the recklessness inquiry
    as a subjective test, with the ultimate focus remaining on
    whether a finder of fact can either directly find or “infer a
    subjectively reckless state of mind.” (Maj. Op. at 11.) “In
    applying the reckless disregard test to assertions, we have
    borrowed from the free speech arena and equated reckless
    disregard for the truth with a ‘high degree of awareness of the
    statements’ probable falsity.’” Wilson, 
    212 F.3d at 788
    (citation omitted).
    The majority concludes that the District Court’s
    recklessness determination was proper because, in its view,
    the record supports the District Court’s finding that Smith
    “made up Paragraph 7(c) out of whole cloth.” (Maj. Op. at
    17.) According to the majority, “[t]he fact that a statement is
    a fabrication or a figment of a speaker’s imagination is
    sufficient reason for finding that it was not made in good
    1
    faith—i.e., that it was made with (at least) reckless disregard
    for the truth—even if the speaker testifies that he believed the
    statement to be true.” (Id. at 18-19.) While this statement of
    law is not incorrect in the abstract, the District Court in this
    case never specifically found that Smith had “fabricated” the
    disputed evidence or cut it “out of whole cloth.”
    The District Court’s decision holds that Smith acted
    with reckless disregard for the truth because he failed to take
    any steps to verify his understanding of the evidence, which
    was based solely on his telephone conversations with Lash; in
    the District Court’s view, for Smith “[t]o have asserted the
    existence of [non-existent] evidence in the face of readily
    available access to actual evidence to the contrary was a
    reckless disregard for the truth.” United States v. Brown, 
    647 F. Supp. 2d 503
    , 513 (W.D. Pa. 2009). But as even the
    majority acknowledges, suppression is not warranted when an
    officer negligently includes a false assertion in a warrant
    affidavit, and the failure to conduct a full investigation does
    not constitute evidence of recklessness. See, e.g., Franks v.
    Delaware, 
    438 U.S. 154
    , 171 (1978) (“[A]llegations of
    negligence or innocent mistake are insufficient” to warrant
    suppression); see also Herring v. United States, 
    129 S. Ct. 695
    , 703 (2009) (“Under Franks, negligent police
    miscommunications in the course of acquiring a warrant do
    not provide a basis to rescind a warrant and render a search or
    arrest invalid.”); United States v. Hammett, 
    236 F.3d 1054
    ,
    1058-59 (9th Cir. 2001) (holding that misstatement in warrant
    affidavit was not made with reckless disregard for the truth
    because it was highly probable that there was a
    miscommunication between the investigating officer and the
    officer who drafted the affidavit); United States v. Dale, 
    991 F.2d 819
    , 844 (D.C. Cir. 1994) (“[I]n general, the failure to
    2
    investigate fully is not evidence of an affiant’s reckless
    disregard for the truth.”).
    Returning to the majority’s “fabrication” theory, such a
    characterization has no real basis in the record (and, to the
    extent the District Court’s decision could be construed as
    making any “fabrication” finding, such a finding would be
    clearly erroneous at least in the absence of any adverse
    credibility determination against Smith himself).            For
    instance, although Smith ultimately acknowledged at the
    hearing that “Trooper Lash never told [him] that the Jetta met
    up with the school van,” (App. 241), he also repeatedly
    testified that he had previously believed that the information
    in the affidavit was accurate at the time he drafted it. More
    significantly, he indicated that (in the words of the District
    Court itself) “[h]e based his statements in the affidavit on
    discussions which he had previously had with Trooper Lash.”
    
    647 F. Supp. 2d at 508
    . The District Court never specifically
    made a credibility finding against Smith or otherwise rejected
    any of his sworn testimony.
    Accordingly, it is incorrect to assert that Smith had no
    basis or reason whatsoever for believing that the information
    included in the affidavit was true at the time the affidavit was
    drafted. He relied at that point in time on what he had
    remembered (and perhaps had inferred) from his prior
    conversations with Lash. As it turns out, he was wrong and
    acted negligently when he should have read the reports of
    Lash. However, Smith clearly did not irrationally “believe
    something to be true (let alone swear in an affidavit that it is
    ‘true and correct to the best of my knowledge, information,
    and belief’) without an affirmative justification.” (Maj. Op. at
    17.) It is actually implausible to surmise that he would have
    3
    acted in such an unreasonable and even surprising manner
    given that the correct facts would have been more than
    sufficient to establish probable cause.1 See Illinois v. Gates,
    
    462 U.S. 213
    , 236-37 (1983) (explaining that “so long as the
    magistrate had a substantial basis for concluding that a search
    would uncover evidence of wrongdoing, the Fourth
    Amendment requires no more”) (internal quotation marks and
    citation omitted). In particular, several witnesses saw a silver
    car parked where the van was later discovered, and one of
    those witnesses—who specifically identified the car as a
    Volkswagen Jetta—saw it again at 9:25 a.m. traveling away
    from the vicinity of the parked van.
    I would reverse the order of the District Court and,
    accordingly, respectfully dissent.
    1
    I make this point in the limited context of assessing Smith’s
    state of mind at the time the affidavit was drafted.
    4
    

Document Info

Docket Number: 09-3643

Citation Numbers: 631 F.3d 638, 2011 U.S. App. LEXIS 1059, 2011 WL 167052

Judges: Smith, Fisher, Cowen

Filed Date: 1/20/2011

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (36)

United States v. Osama Awadallah , 2 A.L.R. Fed. 2d 705 ( 2003 )

united-states-v-david-m-dale-united-states-of-america-v-michelle , 991 F.2d 819 ( 1993 )

United States v. Charles Lester Vanness , 85 F.3d 661 ( 1996 )

United States v. Brown , 647 F. Supp. 2d 503 ( 2009 )

Herring v. United States , 129 S. Ct. 695 ( 2009 )

united-states-v-eric-lamar-falls-united-states-of-america-v-gregory , 34 F.3d 674 ( 1994 )

United States v. Dorfman , 542 F. Supp. 345 ( 1982 )

United States v. Danny Lee Kyllo , 190 F.3d 1041 ( 1999 )

The Travelers Indemnity Co., a Connecticut Corporation v. ... , 711 F.2d 14 ( 1983 )

Franks v. Delaware , 98 S. Ct. 2674 ( 1978 )

Kyllo v. United States , 121 S. Ct. 2038 ( 2001 )

Miller v. Fenton , 106 S. Ct. 445 ( 1985 )

United States v. Looney , 532 F.3d 392 ( 2008 )

herschel-beard-iii-and-carol-goslin-v-the-city-of-northglenn-colorado-a , 24 F.3d 110 ( 1994 )

united-states-v-reginald-shantez-rice-jose-alberto-jimenez-huerta-german , 478 F.3d 704 ( 2007 )

United States v. Leon , 104 S. Ct. 3405 ( 1984 )

No. 98-5283 , 212 F.3d 781 ( 2000 )

Great Atlantic & Pacific Tea Co. v. Brasileiro , 159 F.2d 661 ( 1947 )

Petition of Sun Oil Company, as Owner of Tank Ship Atlantic ... , 431 F.2d 1119 ( 1970 )

Helvering v. Tex-Penn Oil Co. , 57 S. Ct. 569 ( 1937 )

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