                          UNITED STATES COURT OF APPEALS
                                      Tenth Circuit
                           Byron White United States Courthouse
                                    1823 Stout Street
                                 Denver, Colorado 80294
                                     (303) 844-3157
Patrick J. Fisher, Jr.                                                        Elisabeth A. Shumaker
Clerk                                                                         Chief Deputy Clerk

                                        December 30, 1997


       TO: ALL RECIPIENTS OF THE CAPTIONED OPINION

       RE: 96-2290, United States v. Keiran Kennedy
           Filed on December 3, 1997


               Please be advised of the following correction to the captioned decision:

              On page 2, first paragraph of the “Background” section, second sentence,
       line six, there exists a typographical error. The sentence refers to the point of
       departure as “from Flagstaff, New Mexico, to Chicago, Illinois; . . . .” The
       correct location for departure should read “from Flagstaff, Arizona, to Chicago,
       Illinois; . . . .”

               Please make the appropriate correction to your copy of the opinion.

                                                     Very truly yours,

                                                     Patrick Fisher, Clerk


                                                     Keith Nelson
                                                     Deputy Clerk
                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                  PUBLISH
                                                                        DEC 3 1997
                  UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,

 v.                                                  No. 96-2290

 KEIRAN GEORGE KENNEDY,

       Defendant-Appellee.


                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-94-534-JP)


Robert D. Kimball, Assistant United States Attorney, Albuquerque, New Mexico
(John J. Kelly, United States Attorney, with him on the brief), for Plaintiff-
Appellant.

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg,
LLP, Albuquerque, New Mexico, for Defendant-Appellee.


Before ANDERSON, EBEL, and LUCERO, Circuit Judges.


EBEL, Circuit Judge.


      Law enforcement officers seized over fifty pounds of marijuana from two

suitcases carried by Defendant-Appellee Kieran George Kennedy after obtaining a
search warrant based in part on a narcotics canine alert. Kennedy was indicted

for possession with intent to distribute marijuana. The affidavit supporting the

warrant described the drug dog as trained and certified to detect narcotics.

However, the drug dog's handler had not maintained proper records of the dog's

reliability nor conducted periodic field training as instructed by the agency that

had certified the dog. Kennedy moved to suppress the marijuana, claiming that

the failure to mention the handler's poor record keeping and field training in the

affidavit constituted a reckless omission of a material fact sufficient to invalidate

the warrant. The district court agreed and granted Kennedy's motion, relying on

Franks v. Delaware, 438 U.S. 154 (1978). The government now appeals. We

have jurisdiction under 18 U.S.C. § 3731. We reverse.

                                  BACKGROUND

      On August 18, 1994, a confidential source contacted Drug Enforcement

Administration Special Agent Kevin J. Small ("Small"), stationed in Albuquerque,

New Mexico, regarding Kennedy's behavior. The source reported the following

information: a man traveling under the name of Kennedy purchased a one-way

sleeper car roomette ticket with a credit card the morning of departure from

Flagstaff, Arizona, to Chicago, Illinois; the man spoke with a British or

Australian accent; the man had at least two suitcases, one of which was large and

gray; after purchasing the ticket, the man stayed in his parked car, avoided contact


                                         -2-
with other passengers, and moved directly from his car to the train when it pulled

in to the station for its brief stop. Most passengers wait in the station or on the

train platform and mingle with other passengers. A law enforcement officer

subsequently advised Small that Kennedy had left a rented car behind in Amtrak's

Flagstaff parking lot and used a cellular phone for his reservation's callback

number.

      Based on this information, Small met the train when it arrived in

Albuquerque later in the afternoon, accompanied by Albuquerque Police

Detective Pat Castillo ("Castillo"). The attendant for defendant's sleeping car

confirmed that a man fitting Kennedy's description had boarded the train in

Flagstaff with a large suitcase stored in the sleeping car's common luggage area.

The attendant identified a large gray American Tourister suitcase in the luggage

area as Kennedy's bag. Small sniffed the bag. He noticed that the suitcase had a

strong lemon scent that he believed to be consistent with deodorants or other

substances used to mask the smell of narcotics. Castillo confirmed this

observation.

      Small called for Albuquerque Police Detective Rob Lujan ("Lujan"), the

certified dog handler for the Albuquerque Police Department, and his dog Bobo.

Small had worked with Bobo on ten to fifteen prior occasions. Bobo made an

alert every time Small had worked with the dog, but two of those alerts turned out


                                          -3-
to be false--no seizable amounts of contraband were found. Once Lujan and Bobo

arrived, Small had them check the sleeping car's common luggage area. Bobo

alerted to Kennedy's gray bag. 1

      Small then knocked on the door of Kennedy's roomette and announced that

he was a law enforcement officer. Kennedy, who spoke with a British accent,

opened the door and agreed to speak with Small. Small taped the conversation.

Kennedy identified himself, confirmed that he boarded in Flagstaff, and stated

that he was bound for New York by way of Chicago and then to London by air.

When Small asked Kennedy if he had any baggage, Kennedy said that he had been

given a large gray suitcase stored in the baggage compartment to "drop" to

someone who would meet him on the train. Kennedy said that a man named Will

(he did not remember the last name) had given him the bag. Kennedy denied

knowledge of the contents of the bag, said it was not his, and added that he had

not packed the bag. Kennedy also told Small that Will had given him a second,

smaller bag, and pointed out one of the bags in his room.


      1
         During oral argument, Kennedy's counsel stated that Small touched the
bag when inspecting it on the train before Bobo alerted to the luggage. Counsel
suggested that Bobo might have keyed off of Small's smell on the bag rather than
alerting to the odor of marijuana. Although such evidence might be relevant in
evaluating the reliability of the dog, the evidence in the record is inconclusive on
this point. Bobo had not alerted to bags that Small had touched on several prior
occasions, and the district court did not make any finding of fact that Small
touched the bag in this case. As a result, we assume for the purpose of review
that Small did not touch the suitcase prior to Bobo's alert.

                                        -4-
      Small arrested Kennedy and removed the bags from the train. Bobo then

alerted to the smaller bag that had been seized from Kennedy's roomette. Small

prepared a search warrant application for the bags, mentioning Bobo's alert to the

suitcase and reciting Kennedy's story about his role as "courier" for the bags. The

relevant portion of the search warrant application read as follows:

      Affiant requested Albuquerque Police Detective Rob Lujan and his canine
      "BOBO" to check the common luggage area of car 430. "BOBO" checked
      the luggage in the luggage area and he alerted to the gray large American
      Tourister hardsided suitcase. "BOBO" is a certified narcotics canine with
      the Albuquerque Police Department and is trained to alert to the odors
      associated with marijuana, Heroin, Cocaine, and/or Methamphetamine.

(emphasis added). 2


      2
          The search warrant application in its entirety read as follows:

      On August 18, 1994 affiant was at the Amtrak Train Station in
      Albuquerque, New Mexico when Amtrak Train number 4 arrived from Los
      Angeles, CA. An Amtrak Train Attendant identified a grey [sic] large
      American Tourister hardsided suitcase sitting in the common luggage area
      as a suitcase belonging to George Kennedy in room B of car 430.

      Affiant requested Albuquerque Police Detective Rob Lujan and his canine
      "BOBO" to check the common luggage area of car 430. "BOBO" checked
      the luggage in the luggage area and he alerted to the gray large American
      Tourister hardsided suitcase. "BOBO" is a certified narcotics canine with
      the Albuquerque Police Department and is trained to alert to the odors
      associated with marijuana, Heroin, Cocaine, and/or Methamphetamine.

      Affiant went to room B of car 430 and knocked on the door. The person later
      later [sic] identified as George KENNEDY asked who it was. Affiant stated he
      was with the police department. KENNEDY opened the curtain and affiant
      showed KENNEDY his Drug Enforcement Administration credentials and stated
      he was a police officer and asked if he could talk to him. KENNEDY unlocked
                                                                        (continued...)

                                         -5-
      Based on Small's affidavit, a magistrate judge issued the warrant. The

large gray bag contained more than thirty pounds of marijuana, and the smaller

bag held twenty pounds of marijuana for a combined total in excess of 58 pounds.

Small also found $5,000 in cash in Kennedy's personal belongings. Kennedy was

indicted for knowing possession with intent to distribute less than 50 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(D).

      2
          (...continued)
      the door and agreed to talk to the affiant.

      After a short conversation about KENNEDY's travel affiant inquired if he had
      any luggage. KENNEDY stated he had "a case that somebody wanted him to
      drop." KENNEDY stated that a person was going to meet him on the train and
      he would give that person the suitcase. KENNEDY stated the suitcase was a big
      gray suitcase and it was downstairs and he did not have the key to it. KENNEDY
      added that he had another suitcase in his room that he was also supposed to give
      the the [sic] person on the train and the persons [sic] name was "WILL". The
      second suitcase KENNEDY pointed out in his room was a teal colored softsided
      American Tourister suitcase.

      Affiant pursuant to the narcotics canine alert to the gray hardsided suitcase in the
      common luggage area and the statement by KENNEDY regarding the second
      suitcase also being given to a person named "WILL" affiant [sic] arrested
      KENNEDY. Affiant seized both suitcases [sic] Affiant had Det. Lujan and his
      canine "BOBO" check the teal colored suitcase after it was seized. "BOBO"
      alerted to the teal colored soft-sided American Tourister suitcase.

      Det. Lujan andAPD [sic] Detective William Greigo transported the two (2)
      suitcases to the Albuquerque District Office of the Drug Enforcement
      Administration. Both suitcases have been in the affiants [sic] possession since
      that time.

      Affiant knows the above personally or was told it by Det. Lujan.

      Affiant respectfully request [sic] a Federal Search Warrant be issued for the two
      suitcases because there is probable cause to believe that they contain
      drugs/narcotics in violation of 21 USC 841.

                                           -6-
      Seeking to suppress the seized contraband, Kennedy initiated discovery

proceedings regarding Bobo's training and history in the hope of showing that

Bobo was so unreliable that the warrant should be invalidated. 3 The discovery

process revealed that Bobo and Lujan had been trained as a team and certified by

Global Training Academy ("Global") in San Antonio, Texas, in November, 1993.

Bobo received a 96% success rating from Global. Global's manual instructed

Lujan to keep proper records of Bobo's activities and periodically field train Bobo

to ensure Bobo's continued reliability. Global's continued assurance of Bobo's

accuracy depended on Lujan following these instructions. 4 Over time, if not

properly monitored, a dog may fall out of its trained behavior and begin

responding to a handler's cues rather than to actual detection of a narcotic odor.

A drug dog will lose its effectiveness in the field and may revert to old, bad




      3
        This is at least the second reported case involving the suppression of
evidence seized as a result of an alert by Bobo. See United States v. Florez, 871
F. Supp. 1411 (D.N.M. 1994) (suppressing evidence obtained as a result of a
search warrant predicated on an alert by Bobo).
      4
         Global's training manual reminded a dog handler that "you are the key to
the success of [Global's] training and to the continued success of your dog once
you leave [Global]. If you fail to provide the proficiency training needed to
maintain the dog's proficiency, and your's, then our efforts have been wasted . . . .
The credibility and ability to conduct effective training is only as good as the
records you maintain on your dog." Global did not, however, condition its
certification on a handler's compliance with these directives, and the record does
not indicate any procedure by which a dog's certification may be revoked if
subsequent field training and record keeping is not maintained.

                                        -7-
habits if not continually trained. Accurate record keeping is essential to insure

the dog's reliability until the dog is recertified.

       Lujan, however, ignored Global's directives. Lujan did not keep records of

Bobo's field work. Lujan also field trained Bobo only sporadically, contrary to

Global's instructions. The available records revealed that Bobo alerted 56 times

from the November, 1993, certification up until August 18, 1994, the date of the

incident in question. 5 He accurately alerted in 40 of those cases and falsely

alerted in the remaining 16 (a 71.4% success rate). 6 Bobo was recertified by

Global in September, 1994, one month after his alert to Kennedy's luggage, with a

success rate of 96%.

       Kennedy moved to suppress the marijuana seized from the bags. Kennedy

argued that Lujan's failure to follow Global's instructions impermissibly tainted

the magistrate judge's probable cause determination by fatally undermining the

claim in the affidavit that Bobo was a trained and certified narcotics canine. The

district court initially denied Kennedy's motion, although the court did find that

Lujan had been reckless in failing to mention to Small his poor record-keeping

       5
        Since Lujan did not keep accurate records, it is impossible to say with
any degree of precision how many times Bobo had alerted since November, 1993.
       6
         A false alert occurs when no seizable amounts of contraband are located
during a search. However, a false alert does not mean necessarily that the dog
alerted without detecting any odor of narcotics. Dogs are capable of detecting
narcotics residue that may appear on money or clothing that has come in contact
with drugs, even though no seizable quantity has been found.

                                           -8-
and training habits and that the omission of those facts from the affidavit was

significant. However, the court did not find that Lujan's recklessness tainted

Small's affidavit and thus refused to invalidate the warrant. On Kennedy's motion

to reconsider, however, the district court reversed course, holding that Lujan's

recklessness could be imputed to Small. Consequently, the district court ruled to

suppress the marijuana. The government now appeals pursuant to 18 U.S.C.

§ 3731.

                                   DISCUSSION

      We find that the magistrate judge had sufficient probable cause to issue a

warrant to search Kennedy's luggage. Though Lujan's training and record keeping

were shoddy at best, we conclude that Small did not omit any material facts that

would have altered the magistrate judge's probable cause determination by failing

to mention Lujan's shortcomings. Had Small included all of the information

revealed at the suppression hearing regarding Bobo's reliability and Lujan's

sloppy conduct, a reasonable magistrate judge still would have issued the warrant.

      We review de novo a district court's determination of reasonableness under

the Fourth Amendment. United States v. Hernandez, 93 F.3d 1493, 1498 (10th

Cir. 1996). We review the reasonableness of a warrant to determine "whether the

issuing magistrate . . . had a 'substantial basis' for finding probable cause," giving

"great deference" to the issuing magistrate judge's decision. United States v.


                                         -9-
Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc) (citation omitted). We

review a district court's factual findings in ruling on a suppression motion for

clear error. Hernandez, 93 F.3d at 1498. The government does not contest the

district court's factual findings and we find adequate evidence in the record to

support those findings. Thus, we adopt those findings as true for the purpose of

review. We particularly agree that Lujan's conduct was careless and note that

under different circumstances such carelessness might be sufficient to overturn a

search warrant. However, we do not find that we should invalidate the warrant in

this case.

      The district court based its suppression ruling on the analysis set forth in

Franks v. Delaware, 438 U.S. 154 (1978). Under Franks, a 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 and if the affidavit, purged of its falsities, would not be sufficient to

support a finding of probable cause. Id. at 155-56; see also Stewart v. Donges,

915 F.2d 572, 581-82 (10th Cir. 1990). If the defendant establishes at the

evidentiary hearing by a preponderance of the evidence that the false statement

was included in the affidavit by the affiant "knowingly and intentionally, or with

reckless disregard for the truth," and the false statement was "necessary to the

finding of probable cause," then the Supreme Court has ruled that "the search


                                         - 10 -
warrant must be voided and the fruits of the search excluded to the same extent as

if probable cause was lacking on the face of the affidavit." Franks, 438 U.S. at

155-56; see also Stewart, 915 F.2d at 581. In addition, we have ruled that the

standards of "deliberate falsehood" and "reckless disregard" set forth in Franks

apply "to material omissions, as well as affirmative falsehoods." Stewart, 915

F.2d at 582 (citations omitted).

      Under this line of reasoning, the district court concluded that Lujan's

failure to inform Small of his poor record keeping constituted a reckless omission

of material facts. The district court then imputed Lujan's recklessness to Small

relying on United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) ("A

deliberate or reckless omission [of information incorporated into an affidavit] by

a government official who is not the affiant can be the basis for a Franks

suppression"), and Franks, 438 U.S. at 164 n.6 ("police [can] not insulate one

officer's deliberate misstatements merely by relaying it through an officer/affiant

personally ignorant of its falsity."). Specifically, the district court found that the

following additional information should have been provided in the affidavit: (1)

Although not Bobo's handler, Small had worked with Bobo on 10-15 prior

occasions and Bobo had alerted in two instances where no seizable amounts of

contraband were found; (2) Bobo had been trained and certified by Global during

November, 1993, with a passing rate of 96%; (3) Global mandated that Lujan


                                         - 11 -
keep daily records of Bobo's activities and regularly field train Bobo for the dog

to remain reliable and certified; (4) Lujan did not keep such records and only

sporadically field trained Bobo after the November, 1993 certification; (5) Lujan

believed Bobo was reliable but could not provide "even close to reliable statistics

about Bobo's actual performance." The district court found that had this

information been provided to the magistrate judge, no warrant would have been

issued.

      We agree with the decision of the district court to hold the government

accountable for statements made not only by the affiant but also for statements

made by other government employees which were deliberately or recklessly false

or misleading insofar as such statements were relied upon by the affiant in making

the affidavit. See United States v. Wapnick, 60 F.3d 948, 956 (2nd Cir. 1995),

cert. denied, 116 S. Ct. 2556 (1996); DeLeon, 979 F.2d at 764; United States v.

Calisto, 838 F.2d 711, 714 (3rd Cir. 1988); United States v. Pritchard, 745 F.2d

1112, 1118 (7th Cir. 1984). However, because we conclude that none of the

"omitted" information would have altered the magistrate judge's decision in this

case, we disagree with the district court's ruling invalidating the search warrant.

      As a general rule, a search warrant based on a narcotics canine alert will be

sufficient on its face if the affidavit states that the dog is trained and certified to

detect narcotics. See United States v. Venema, 563 F.2d 1003, 1007 (10th Cir.


                                          - 12 -
1977) (affidavit in support of a search warrant need not describe the drug-

detecting dog's educational background and general qualifications with specificity

to establish probable cause); United States v. Berry, 90 F.3d 148, 153 (6th Cir.)

(search warrant application need not describe the particulars of a dog's training,

reference to dog as a "drug sniffing or drug detecting dog" sufficient to support

probable cause), cert. denied, 117 S. Ct. 497 (1996); United States v. Daniel, 982

F.2d 146, 151 n.7 (5th Cir. 1993) (rejecting argument that an affidavit must show

how reliable a drug-detecting dog has been in the past in order to establish

probable cause); United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980)

(statement that dog graduated from training class and has proven reliable in

detecting drugs on prior occasions sufficient to support probable cause). We

decline to encumber the affidavit process by requiring affiants to include a

complete history of a drug dog's reliability beyond the statement that the dog has

been trained and certified to detect drugs.

      Nevertheless, we agree with the district court that under Franks and Stewart

a court may look behind a search warrant when the affiant intentionally or

recklessly misleads the magistrate judge by making an affirmatively false

statement or omits material information that would alter the magistrate judge's

probable cause determination. This court has commented that "[A] dog alert

might not give probable cause if the particular dog had a poor accuracy record."


                                        - 13 -
United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993); see also United

States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994) (analogizing a dog's alert to

expert testimony under Fed. R. Ev. 702 that may be attacked on credibility

grounds under the district court's discretion to hear evidence about a dog's

training and reliability and expert testimony attacking the canine's performance). 7

      Under Franks and Stewart, a defendant must show that the affidavit either

included affirmatively false statements or omitted material facts. We find that

Kennedy failed to meet either of these burdens in this case. First, we do not find

that Small's affidavit included any affirmatively false statements. The affidavit

stated that Bobo was a "certified narcotics canine . . . trained to alert to the odors

associated with marijuana." Nothing in the record indicates that Bobo had not

been so trained and certified nor is there evidence that Global ever revoked or

withdrew certification of a dog as a result of a dog handler's errors. Notably, the

district court found only that the affidavit recklessly omitted material information,

not that the affidavit contained any affirmative misstatements.




      7
        The court in Diaz suggested that a finding by the trial court that a drug
dog was unreliable would be necessary to show cause for suppressing evidence
seized based on a drug sniff. 25 F.3d at 394. In this case, the district court never
found that Bobo was in fact unreliable; instead the evidence showed that Bobo
had been at least 70% reliable. The district court only found that had all the facts
been known, the magistrate judge would not have found probable cause.

                                         - 14 -
      Second, we turn to whether the affidavit contained material omissions. The

district court found that Lujan's failure to alert Small to his shortcomings in

handling Bobo constituted a reckless omission of a material fact. However, in

order to invalidate a warrant based on a reckless omission, the information

excluded from the affidavit must be material to the magistrate judge's finding of

probable cause. Stewart, 915 F.2d at 582-83. If the magistrate judge would not

have altered his probable cause determination even if he had been presented with

the omitted material, then the warrant should be upheld. Id. We conclude that

none of the information omitted from the affidavit constituted a material fact that

would have altered the magistrate judge's probable cause determination. As a

result, we need not reach the issue of whether Lujan was reckless in withholding

the information from Small.

      Even if Small had presented to the magistrate judge all of the facts the

district court felt should have been included in his affidavit, a reasonable

magistrate judge still would have found probable cause to issue the search

warrant. A magistrate judge's task in determining whether probable cause exists

to support a search warrant "is simply to make a practical, common-sense decision

whether, given all the facts and circumstances set forth in the affidavit before

him, including the 'veracity' and 'basis of knowledge' of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a


                                         - 15 -
crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238

(1983). The standard for probable cause only requires that the magistrate had a

"'substantial basis for . . . conclud[ing]' that a search would uncover evidence of

wrongdoing." Id. at 236 (quoting Jones v. United States, 362 U.S. 257, 271

(1960)).

       This court has consistently held that probable cause can be based on alerts

by trained dogs. See United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th

Cir. 1994); United States v. Sukiz-Grado, 22 F.3d 1006, 1009 (10th Cir. 1994);

Ludwig, 10 F.3d at 1527. Other courts have reached the same conclusion. See

Berry, 90 F.3d at 153; United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995),

cert. denied, 116 S. Ct. 1284 (1996); United States v. Banks, 3 F.3d 399, 402

(11th Cir. 1993) (per curiam). In United States v. Wood, 915 F. Supp. 1126, 1136

n.2 (D. Kan. 1996), rev'd on other grounds, 106 F.3d 942 (10th Cir. 1997), the

court suggested that "with a canine, the reliability should come from the fact that

the dog is trained and annually certified to perform a physical skill. When the

annual certification process involves actual field testing and grading of the

canine's drug-detection skills . . . the canine's reliability is sufficient for a

probable cause determination absent some circumstance that justifies a more

complete examination of the canine's skill and performance."




                                           - 16 -
      Although Lujan's poor records might justify a further examination of

Bobo's performance in the context of a motion to suppress, the further

investigation actually undertaken by the district court produced evidence that

Bobo in fact consistently performed well enough to support a probable cause

finding. None of the additional information that the district court thought should

have been included in the warrant application would have suggested that Bobo

was unreliable. In fact, the additional information suggested the opposite. The

evidence indicated that Bobo correctly alerted 71% of the time in those instances

where records were kept and that on those occasions where Bobo worked with

Small, the dog had at least an 80% accuracy rate. We find that a 70-80% success

rate meets the liberal standard for probable cause established in Gates.

      Kennedy argues that the magistrate judge would have no real basis on

which to base a probable cause determination because the records that did exist

were inadequate. We disagree. According to Kennedy, Lujan should have

admitted that he did not keep proper records, did not adopt Global's recommended

training regimen, and could not provide "even close to reliable statistics about

Bobo's actual performance." However, Small also would have been able to

inform the magistrate judge that Bobo had an 80% success rate working with

Small and a 71% success rate based on the records that were kept by other




                                        - 17 -
officers. We conclude that this information would not have altered the magistrate

judge's probable cause determination. 8

       Kennedy suggests that if the warrant is upheld on appeal, Lujan will be

rewarded for his carelessness. But, of course, that is not the case. The affidavit

for the search warrant undoubtedly would have been stronger if Lujan had

properly maintained field training and records on Bobo and if Small had been able

to include those facts in the affidavit. We hold only that, even assuming that

Lujan's carelessness had been disclosed in the affidavit, the affidavit would have

been sufficient to establish probable cause, especially given the other facts in the

affidavit such as Kennedy's disavowal of ownership of the bag and his story about

dropping the bag for an unknown third party that supported the magistrate judge's

decision. 9

       We conclude that the district court erred by ruling that Small's failure to

mention Lujan's sloppy record keeping and inadequate field training in the

affidavit constituted the omission of a material fact under Franks and Stewart.

       8
         We express no opinion as to whether or not there may be circumstances
in which record keeping in some form, under some circumstances, may be
relevant as one of the factors to be considered.
       9
         We note that Kennedy likely abandoned any expectation of privacy in the
suitcases required to support his challenge to the search once he disavowed
ownership of the bag. See United States v. Williams, 113 F.3d 1155, 1161-62
(10th Cir. 1997). Nevertheless, because neither party raised the expectation of
privacy issue and because we reverse the district court on other grounds, we do
not address the issue on appeal.

                                          - 18 -
Therefore, we REVERSE the district court's suppression order, and REMAND for

further proceedings consistent with this opinion.




                                       - 19 -
