United States v. Allen Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

09-3643
_____________

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
_____________

Argued June 21, 2010

Before: SMITH, FISHER, and COWEN, Circuit Judges.

(Filed: January 20, 2011)
Rebecca R. Haywood, Esq. (Argued)
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

_____________

OPINION OF THE COURT
_____________

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

2
United States appeals. We have jurisdiction, 18 U.S.C. §
3731, and will affirm.

I

On the morning of October 1, 2007, two men wearing
distinctive ―Scream‖ masks1 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

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
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.

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.
4
 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
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.
5
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
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
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
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:

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
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
7
government 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

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.‖); 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
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 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.

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
 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
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
10
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
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
11
 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.
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
12
―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 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.,
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

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.

14
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 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
 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
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

16
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
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.

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).

17
 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). 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
18
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.‖).

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

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
19
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 McVerry 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
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

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.

20
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,
would justify invocation of the exclusionary rule regardless of
whether or not police are in possession of evidence giving it
the lie.

21
 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
testifying that he published with a belief that the
statements were true. The finder of fact must
determine whether the publication was indeed
22
 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.

St. Amant, 390 U.S. at 732 (emphasis added).10 The fact that
a statement is a fabrication or a figment of a speaker‘s

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
23
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

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 distillation of the Supreme Court‘s discussion,
rather than as an effort to eliminate several of the approved
grounds for inferring recklessness.

24
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
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
25
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 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
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.

26
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.

27
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