D.C.Cir.: Omission of robbery victim’s failure to ID def didn’t cut either way in Franks analysis; PC still existed

Omission of a non-identification of defendant as a robber was not material for Franks. “Even viewing the omitted non-identification as a material omission, probable cause for the search did not rise or fall on the identification of Dorman as the robber; rather the link was between the Dodge Charger and the robbery, Dorman and the Charger, and Dorman and 2317 Chester Street … Dorman speculates that law enforcement officers ‘fear[ed]’ inclusion of the sales clerk’s statement ‘would jeopardize a probable cause finding.’ … MPD Detective Scott Brown, who prepared the affidavit, testified that he chose not to include the sales clerk’s statement in his affidavit because ‘it didn’t help the search warrant’ because the sales clerk was uncertain, but it also ‘didn’t hurt the search warrant’ because the clerk said Dorman’s photograph had some resemblance to the robber. … Dorman’s rank speculation is far from the ‘preponderance of the evidence’ required to demonstrate that the officer knowingly or recklessly omitted this statement, much less overcome the district court’s contrary finding on clear error review.” United States v. Dorman, 2017 U.S. App. LEXIS 11159 (D.C. Cir. June 23, 2017).

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