Tenth Circuit Notes Split Re What Standard of Review Applies to a District Court's Refusal to Conduct a Franks Hearing

Per U.S. v. Archuleta, Slip Copy, 2007 WL 779276 (10th Cir. Mar. 16, 2007):

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that affidavits supporting search warrants are presumed to be valid and that a criminal defendant may make a post hoc challenge to a facially sufficient affidavit only in very limited circumstances. Id. at 171-72. "Under Franks, a[n] [evidentiary] hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements[, or material omissions,] and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause." United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir.1997) (citing Franks, 438 U.S. at 155-56); see United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir.2000) (applying the Franks standard to material omissions in affidavit). In other words, "no hearing is required" "if, when material that is the subject of the alleged falsity," "reckless disregard," or material omission "is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause...." Franks, 438 U.S. at 171-72.

The district court in this case refused, after reviewing the affidavit at issue and Archuleta's motion and supporting materials, to conduct an evidentiary hearing. More specifically, the district court concluded that Archuleta failed to establish "that Detective Lane made a false statement in any manner at all, much less, knowingly and intentionally, or with reckless disregard for the truth," and that "even if the Court were to so find, the allegedly false statements [we]re in no way necessary to the finding of probable cause." ROA, Vol. I, Doc. 26 at 9. To date, we have not expressly indicated what standard of review applies to a district court's refusal to conduct a Franks hearing. "[T]he [other] circuits are split as to the proper standard of review" on this issue. United States v. Stewart, 306 F.3d 295, 304 (6th Cir.2002). Some "employ [a] clear error" standard of review. Id.; see United States v. Buchanan, 985 F.2d 1372, 1378 (8th Cir.1993) (employing clear error standard); United States v. Skinner, 972 F.2d 171, 177 (7th Cir.1992) (same); United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990) (same); United States v. One Parcel of Property, 897 F .2d 97, 100 (2d Cir.1990) (same). Others apply a de novo standard of review. Id.; see United States v. Gonzalez, Inc., 412 F.3d 1102, 1110 (9th Cir.2005) (applying de novo standard); United States v. Martin, 332 F.3d 827, 833 (5th Cir.2003) (same). We conclude it is unnecessary to resolve the issue in this case because, for the reasons outlined below, we would affirm the district court's under either standard of review.