CA2: Correcting the alleged false statements in affidavit still leaves PC so officials have QI

Deleting the allegedly false information from the affidavit for search warrant leaving it as a “corrected” affidavit under Franks, there still was a fair probability for probable cause. That there might be other explanations doesn’t undermine probable cause. Therefore, defendants have qualified immunity. Ganek v. Leibowitz, 2017 U.S. App. LEXIS 20226 (2d Cir. Oct. 17, 2017):

In short, the mere possibility that Ganek unwittingly traded on inside information cannot defeat the probable cause to search Ganek’s office that is evident from the totality of the corrected affidavit. See, e.g., Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012) (observing that innocent explanation consistent with facts alleged does not negate probable cause). Nor can Ganek persuasively argue that “the suspected criminal activity of a few [other] employees” was all that “justified an absolute and complete rummaging search of anyone who interacted with them.” Appellee’s Br. 34. As noted, Ganek himself committed the actus reus element of insider trading. When one considers that fact, particularly in light of circumstantial evidence making Ganek’s culpable mens rea fairly probable, the corrected affidavit establishes probable cause to search Ganek’s office for evidence of his own criminal conduct as well as for that of Adondakis and others at LG involved in insider trading.

We reach this conclusion, moreover, as a matter of law because there can be no genuine dispute as to a reasonable judicial officer issuing the challenged search warrant upon review of the corrected affidavit. See Smith v. Edwards, 175 F.3d at 106; Velardi v. Walsh, 40 F.3d at 574; Soares v. Connecticut, 8 F.3d at 920-21. Assuming that such a warrant issuance question might arise where the credibility of certain evidence (e.g., from a source with a motive to lie), or the sufficiency of corroboration (e.g., for an anonymous tip) informs a probable cause determination, see McColley v. Cty. of Rensselaer, 740 F.3d at 824-26, that is not this case. The corrected affidavit cleanly deletes the alleged misrepresentation (that Adondakis disclosed the inside source of information to Ganek) and adds a correction (that Adondakis made no such disclosure). Presented with that corrected affidavit, a reasonable judicial officer who weighed the totality of facts in the corrected affidavit could only find probable cause established. The district court erred in concluding otherwise. See Walczyk v. Rio, 496 F.3d at 158.