E.D.Mich.: Omission of CI’s prior inconsistent statement didn’t require Franks hearing

The fact that more detail could have been included, including prior inconsistent statements of informants, that doesn’t make a search warrant affidavit false or misleading for Franks purposes because it wouldn’t change outcome. United States v. Davis, 2016 U.S. Dist. LEXIS 86981 (E.D.Mich. July 6, 2016)*:

The question, however, is whether Defendant has made a substantial preliminary showing that Agent Dervish deliberately omitted the prior versions with the intent to mislead. The Court concludes that Defendant has failed to make this showing. While it is clear that a more complete affidavit should have included M-1’s prior inconsistent statements, the mere fact that they were omitted is not sufficient to make a substantial preliminary showing that the facts were deliberately omitted with an intent to mislead. If Agent Dervish credited M-1’s more recent statement, rather than her earlier story—as would not have been unreasonable under these facts—that belief would explain the decision to include the later version in the affidavit. No showing has been made that the earlier statements were deliberately omitted with a deliberate intent to mislead. Defendant therefore fails to meet this requirement to warrant a Franks hearing.

Furthermore, neither the false statements nor the allegedly improperly omitted statements were necessary to the finding of probable cause. The inclusion of statements in an affidavit later determined to be false does not require a Franks hearing unless the false statements were critical to the finding of probable cause. “[I]f, when material that is subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Franks, 438 U.S. at 171-72. In the case of omitted statements, the inquiry is whether “a finding of probable cause would not be supported by the affidavit if the omitted material were considered to be a part of it.” Fowler, 535 F.3d at 415.