CA10: SW affidavit was detailed, and Franks challenge targeted def’s being in pen during conspiracy; not shown reckless under Franks and GFE applies

Officers obtained a search warrant for defendant’s house for evidence of drug dealing for his being involved with a gang for years. The affidavit was detailed except that it only suggested defendant’s and another’s incarceration for eight years in the course of the conspiracy without explicitly stating it, other than that defendant had been arrested with a substantial quantity of drugs, and that was the allusion to pen time. Defendant made a Franks challenge, and it fails. First, the affidavit is not bare bones. Second, the affidavit referred to keeping money on the prison books of incarcerated co-conspirators. At worst, this was a negligent oversight. The Leon “generous standard” is satisfied, and the search warrant is not suppressed. United States v. Ingram, 2017 U.S. App. LEXIS 26325 (10th Cir. Dec. 22, 2017):

Here, Ingram can’t overcome even the first hurdle, the presumption of validity. Rather than hide Ingram’s eight-year incarceration, Detective McRorie’s affidavit suggested that Ingram had served time. According to the affidavit, police had arrested Ingram on drug charges four times between 1998 and 2005 (just over nine years before the warrant’s execution). Though the affidavit didn’t provide charging or sentencing information about these incidents, the amounts of drugs and guns seized augured prison time. Further, the affidavit expressly described the gang’s ability to “thrive” despite the incarceration of its members, by contributing money to incarcerated members’ inmate trust accounts and bonding members out of jail. At worst, Detective McRorie might have acted negligently by not specifying the dates of Ingram’s incarceration. At best, the affidavit read as a whole shows the conclusory nature of Ingram’s assertion. Either way, Ingram can’t show the kind of deliberate or reckless falsity that would entitle him to relief under Franks.

But even if Detective McRorie had acted with deliberate or reckless disregard for the truth in omitting Ingram’s and his alleged co-conspirators’ periods of incarceration, the omission wasn’t material. Nothing in the affidavit suggests that Ingram was on the streets when in fact he was in prison or that he was in prison when in fact he was on the streets. Instead, the bulk of the drug-trafficking described in the affidavit happened in 2014, when Ingram was, by his own admission, out of prison. Thus, even if Detective McRorie had included Ingram’s and his co-conspirators’ incarceration periods in the affidavit, it wouldn’t have undermined the Oklahoma County District Court’s probable-cause finding. Herrera, 782 F.3d at 575; cf. Stewart, 915 F.2d at 581-83 (concluding that a detective’s failure to disclose that the victim had recanted his accusation and admitted to an insurance scam was “highly material” because “the affidavit would not support probable cause if it were modified so as to include that exculpatory evidence”).

Accordingly, we conclude that the state-court judge’s probable-cause determination wasn’t based on a deliberate or reckless omission by Detective McRorie, so we decline to apply Franks to defeat the Leon good-faith exception. Instead, we affirm the district court’s refusal to grant Ingram a Franks hearing.