United States v. Kendall Thrift ( 2018 )


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  •                            NOT FOR PUBLICATION                            FILED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
    2                                    17-10019
    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.
    3                                      17-10019
    AFFIRMED.
    4   17-10019
    

Document Info

Docket Number: 17-10019

Filed Date: 7/5/2018

Precedential Status: Non-Precedential

Modified Date: 7/5/2018