United States v. Kendall Thrift ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10019
Plaintiff-Appellee, D.C. No.
2:14-cr-00308-GEB-1
v.
KENDALL THRIFT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted April 9, 2018
San Francisco, California
Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,**
District Judge.
Appellant Kendall Thrift challenges the district court’s denial of his
motions to suppress evidence obtained through a search warrant, and the district
court’s denial of his request for an evidentiary hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Motions to Suppress. Thrift claims the district court erred in denying
his motions to suppress because the affidavit that supported the warrant did not
provide a substantial basis for the state court judge’s conclusion that there was
probable cause to search Thrift’s residence. In this case, it is a close question
whether the warrant was supported by probable cause. Although a close call, we
need not resolve this issue because even if the warrant lacked probable cause, the
good faith exception to the Fourth Amendment’s exclusionary rule applies in this
case. United States v. Hove, 848 F.2d 137, 139 (9th Cir. 1988) (holding that the
good faith exception applies when “the affidavit was sufficient to ‘create
disagreement among thoughtful and competent judges as to the existence of
probable cause’”) (quoting United States v. Leon, 468 U.S. 897, 926 (1984)).
Since a reasonably well trained police officer could conclude, in good faith, that
there was probable cause to search the residence, Leon, 468 U.S. 923 n.23, all the
evidence seized at the residence was admissible against Thrift. We therefore
affirm the district court’s orders denying Thrift’s motions to suppress. See United
States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986) (noting that when reviewing a
motion to suppress, the court “may affirm on any ground fairly supported by the
record”).
Request for a Franks Hearing. Thrift contends that the district court
erred in denying his request for a Franks hearing because the affidavit that
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supported the warrant purportedly contained false or misleading statements or
omissions. Thrift, however, did not provide any evidence—other than bare
assertions—to support the contention that the false or misleading statements or
omissions were reckless or intentionally misleading. United States v. Perkins,
850 F.3d 1109, 1116 (9th Cir. 2017) (explaining that a defendant prevails at a
Franks hearing only if (1) the affiant intentionally or with reckless disregard for
the truth, included a false or misleading statement or omission in the warrant
application; and (2) without this information included in the warrant application,
there is no longer probable cause). Bare assertions fall short of the preponderance
of the evidence that Franks requires. See United States v. Chavez-Miranda,
306 F.3d 973, 979 (9th Cir. 2002) (“Given the assumption of validity underlying a
supporting affidavit, a party moving for a Franks hearing must submit ‘allegations
of deliberate falsehood or of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof.’” (quoting Franks, 438 U.S. at 154));
see also United States v. Dozier, 844 F.2d 701, 705–06 (9th Cir. 1988) (denying a
Franks hearing when defendant failed to prove that omissions and false statements
were intentional). Because Thrift “failed to offer proof that [the purported false or
misleading statements and] omissions represented deliberate falsehood or a
reckless disregard for the truth,” the district court properly denied Thrift’s motion
for a Franks hearing. Chavez-Miranda, 306 F.3d at 979–80.
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AFFIRMED.
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