4th Cir. reverses on a Franks issue

The defendant succeeding in making his “substantial preliminary showing” under Franks that the officer omitted significant facts from the affidavit that undermined the probable cause because of an apparently illegal entry into the curtilage to gain the information that made it into the application for the search warrant. United States v. Tate, 524 F.3d 449 (4th Cir. 2008):

Tate’s showing reduces to the claim that in order for Agent Manners to have investigated Tate’s trash, which provided the essential basis for demonstrating probable cause, Agent Manners would have had to jump the fence which enclosed Tate’s backyard, trespass on Tate’s property, and search trash that was stored in a container that had not been abandoned for pickup. He supports these claims with the following proffered facts: (1) the trash investigation took place, according to Agent Manners, on a Thursday; (2) the trash was not to be picked up until the following Saturday; (3) on non-trash-pick-up days, the practice followed at Tate’s residence was to store trash in a trash container near the rear steps of the house which was not accessible from public areas without trespassing; (4) the backyard of Tate’s residence, in which the trash container was kept on non-trash-pick-up days, was fenced with a gate that was always locked; (5) Agent Manners stated in a similar affidavit to obtain a search warrant offered in another case two months earlier that he had seized “two trash bags easily accessible from the rear yard” and that the trash bags were found in “a typical location for trash pickups and consistent to the location of neighbors”; (6) in the affidavit in this case, the language was similar but did not include the last clause that the bags were found in “a typical location for trash pickups and consistent to the location of neighbors”; and (7) the result of Agent Manners’ trash search was necessary to a showing of probable cause in this case.

If Tate is correct about his proffered facts, Agent Manners did not omit only insignificant details of the trash investigation. He omitted important facts and circumstances that, if true, were essential to the constitutionality of the trash investigation. The proffered facts tend to show that Agent Manners may have violated Tate’s reasonable expectation of privacy because the trash was not out at the curb for collection on the date of Agent Manners’ search but rather in a container near the rear steps of the home. Also, based on Agent Manners’ affidavit from another case involving a trash search, where he described the trash as being at the typical location for pickup, Agent Manners may have deliberately omitted that language from his affidavit in this case. Tate argues that the inclusion of the statement in the previous affidavit that the trash was found in “a typical location for trash pickups and consistent to the location of neighbors” reveals that Agent Manners knew the requirements for a trash search and therefore that his omission of this information from the current affidavit, when coupled with the evidence that the trash was likely not out at the curb for pickup at the relevant time, indicates an intentional and knowing falsehood on the part of Agent Manners that was designed to mislead the issuing judge.

Although it is certainly true that the trash bags at issue here may in fact have been in a location consistent with their having been abandoned for collection or that Agent Manners may not have included the more descriptive sentence he used in the earlier affidavit out of an exercise of caution resulting from not knowing the “typical location” for trash collection in the area, Tate’s evidence at this stage is sufficient to constitute a “substantial preliminary showing” of a deceptive omission, as required by Franks. 438 U.S. at 155 (emphasis added). (emphasis added)