W.D.N.Y.: Franks challenge to search warrant for house fails for lack of material omission

“The charges against Moran arise from an assault that occurred on May 31, 2006, and its alleged relationship to the Hell’s Angels Motorcycle Club, Rochester Charter (‘Hell’s Angels’), a purported enterprise within the meaning of the racketeering statute.” After an alleged beating with a baseball bat, the bat was tossed into a truck. A later search of the truck yielded no DNA off the bat from the assault. Later, a search warrant issued for a residence. The omission from the affidavit of the fact there was no DNA in the truck was not material to the finding of probable cause for the search warrant in a Franks challenge. Taking that whole paragraph out of the affidavit for search warrant, there still is probable cause. United States v. Moran, 2014 U.S. Dist. LEXIS 182088 (W.D.N.Y. January 29, 2014):

To determine whether a misstatement in an affidavit is material, the Court must “set[] aside the falsehoods in the application, … and determine [w]hether the untainted portions [of the application] suffice to support a probable cause … finding.” Rajaratnam, 719 F.3d at 146 (internal quotations and citations omitted). When the alleged defect involves an omission, however, “‘the literal Franks approach [does not] seem[] adequate because, by their nature, omissions cannot be deleted’; therefore ‘[a] better approach … would be to … insert the omitted truths revealed at the suppression hearing.'” Id. (quoting United States v. Ippolito, 774 F.2d 1482, 1487 n.1 (9th Cir. 1985)); see also United States v. Colkley, 899 F.2d at 301 (“[f]or an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause[;] … [o]mitted information that is potentially relevant but not dispositive is not enough to warrant a Franks hearing”). According to the Second Circuit, “[t]he ultimate inquiry is whether, after putting aside erroneous information and [correcting] material omissions, there remains a residue of independent and lawful information sufficient to support [a finding of] probable cause.” Rajaratnam, 719 F.3d at 146 (quoting United States v. Canfield, 212 F.3d at 718).

Having reviewed the evidence in the record, I conclude that a Franks hearing is not warranted. Even assuming that Preisser deliberately or recklessly omitted from his affidavit the results of the truck search, I conclude that the withheld information was not material to this Court’s probable cause finding. See Rajaratnam, 2010 WL 4867402 at *11 (“a Franks hearing is required only if the government’s misstatements were necessary to [the issuing judge’s] decision to authorize the [warrant] [;] … [the inquiry] is, after setting aside the government’s misstatements and adding what it omitted from the affidavit, does the Court find that the affidavit set forth minimally adequate facts to establish probable cause”).

Although CW-1, as an alleged participant in the assault at Spenders Bar, provided substantial information implicating Moran in the assault, I conclude that there was sufficient independent information recounted in the affidavit that both implicated Moran in the assault and established that he was likely a member of the Hell’s Angels to establish probable cause for the warrant, even in the absence of the information provided by CW-1. Stated another way, even if Preisser had included the results of the execution of the truck warrant in his affidavit in support of the 15 Algonquin Terrace warrant, and even if this Court had concluded that such information rendered CW-1’s information wholly unreliable, sufficient probable cause still existed to justify the issuance of the search warrant.