United States v. Allen Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

09-3643

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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

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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

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OPINION OF THE COURT

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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