United States v. Kendall Thrift

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2018
• Docket: 17-10019
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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