E.D.La.: Omitted informant information needs to be dispositive to undermine PC

More information could probably be included in all search warrant affidavits, but that doesn’t make them misleading for omissions. The omissions must be “dispositive” of probable cause, not just cast a little doubt on it. United States v. Wijetunge, 2015 U.S. Dist. LEXIS 115530 (E.D.La. August 31, 2015):

First, the only arguable affirmative misrepresentation that defendants articulate is the affidavit’s reference to cooperating defendant one as a defendant. The government concedes that the individual referred to as cooperating defendant one has not been charged for his alleged role in the conspiracy. While cooperating defendant one is not, strictly speaking, a defendant in any case, defendants in this case have not made a substantial showing that describing him as such was intentionally or recklessly misleading. Describing cooperating defendant one as a defendant instead of an informant is a distinction with little, if any, material difference. Defendants have also not demonstrated how such information was provided with the intent to mislead the U.S. Magistrate Judge. Furthermore, the affidavit forthrightly states which cooperating defendants pleaded guilty to charges and cooperating defendant one is specifically not included in that group.

Second, with respect to purported omissions of information relevant to the reliability of the cooperating defendants in general, and cooperating defendant one in particular, the affidavit certainly could have included more information. For example, the cooperating defendants could have been described individually, and a prior conviction of cooperating defendant one or the benefit he received for his cooperation could have been disclosed. Such information would have been relevant to the Magistrate’s determination of probable cause. However, the test is not only whether the omitted information is relevant, but whether it is “dispositive, so that if the omitted fact were included, there would not be probable cause.” Davis, 226 F.3d at 351 (emphasis added); see also Arispe, 328 F. Appx. at 907 (“Unless the defendant makes a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate, the Fourth Amendment provides no basis for a subsequent attack on the affidavit’s integrity.”) (quoting United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995)).