CA5: On totality of affidavit, Franks challenge fails because officer’s error in affidavit was negligent and not reckless

The officer interviewed the Spanish speaking informant and prepared an affidavit with the gist of the conversation. The officer’s Spanish skills were limited, and he overstated the CI’s prior information. On the totality, the officer’s statement was merely negligent and not reckless. “We have frequently noted that a statement or omission’s materiality, or lack thereof, has bearing on whether the affiant was reckless.” “Our cases confirm that the plausibility of the affiant’s proffered interpretation weighs in favor of mere negligence and against recklessness.” United States v. Ortega, 2018 U.S. App. LEXIS 1089 (5th Cir. Jan. 17, 2018) (unpublished, but still a clear exposition of comparison of reckless v. negligence and materiality under Franks):

We have frequently noted that a statement or omission’s materiality, or lack thereof, has bearing on whether the affiant was reckless. See Tomblin, 46 F.3d at 1377 (declining to find that an omission was intentional or reckless “because the balance of the information submitted in the affidavits is more than sufficient on its own to establish probable cause”); United States v. Namer, 680 F.2d 1088, 1094 (5th Cir. 1982) (noting that “the analytical concepts of materiality and recklessness are often bound together”); United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980) (holding that the omitted facts “were not so central as to warrant the inference that [the affiant’s] actions were reckless”); see also United States v. Patterson, Nos. 16-1357, 16-1702, 2017 WL 6349262, at *4-5 (1st Cir. Dec. 13, 2017) (holding that the affiant’s misstatement was not done intentionally because an accurate statement would still have provided “ample” basis for issuance of a warrant). Put simply, the less damaging the whole truth is to the affiant, the weaker the inference that the affiant made a statement or omission with reckless disregard for the truth.

That said, we are cautious not to rely solely on this factor. The fact that Parkinson could have written a wholly truthful and sufficient affidavit cannot, by itself, defeat Ortega’s Franks challenge. See Davis, 714 F.2d at 899. In fact, Parkinson’s failure to disclose facts underlying conclusory statements in his affidavit is a factor favoring recklessness, though not a dispositive one. See United States v. Alvarez, 127 F.3d 372, 374-75 (5th Cir. 1997). After all, “it is the magistrate,” and not the police, “who must determine independently whether there is probable cause.” Franks, 438 U.S. at 165. It may have been eminently reasonable for Parkinson to infer that Jacinto was accurately translating the informant’s message. But the Fourth Amendment requires that “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948).

The factor we find most important in this case that weighs against finding recklessness is the plausibility of Parkinson’s understanding of his affidavit. As we previously noted, the most natural reading of the affidavit is that Parkinson and the informant directly conversed, without a translator or a language barrier. That said, Parkinson’s proffered reading is not so obviously false that it amounts to a reckless disregard for the truth. Franks itself is instructive. There, the affiant swore that he contacted two witnesses and “did have personal conversation with both.” Franks, 438 U.S. at 157. The defendant proffered testimony from both witnesses, who said they were never personally interviewed by the affiant but might have talked to a different officer. Id. at 158. There, it would have been obviously false to say that the officer had a “personal conversation” with a witness with whom he had never spoken. Here on the other hand, it is a slight stretch but not totally baseless for Parkinson to say he “receive[d] information” when he was present while it was conveyed, understood some of it, and had the rest translated to him.

Our cases confirm that the plausibility of the affiant’s proffered interpretation weighs in favor of mere negligence and against recklessness. In Alvarez, the affiant swore that he had received information that the defendant had produced a video tape showing a minor “engaging in sexual conduct.” 127 F.3d at 373. This statement was false. Id. at 374. What the affiant really had was information that a minor exposed her breasts on the tape. Id. at 373. Exposing breasts fell outside of Texas’s definition of “sexual conduct,” which, in relevant part, included “lewd exhibition of the genitals.” Id. at 373-74. At the suppression hearing, the affiant testified that he believed breasts were genitals. Id. at 374. We refused to chalk this basic misunderstanding of human anatomy up to mere negligence and instead held that the statement was made with reckless disregard for the truth. Id. at 375. In Namer, the affidavit stated that a high-level officer of a state agency had “classified” the financial instruments the defendant dealt in as securities. 680 F.2d at 1092. In fact, the state agency had no procedure for classifying financial instruments as securities, and the officer had only given a qualified opinion. Id. We observed that the term “classified” carries weight, connoting an “authoritative result of ordered procedures and methodologies, and not an ad hoc and qualified oral opinion of a single agency employee.” Id. at 1094. We held that the wide gap between the affidavit’s plain meaning and the affiants’ intended meaning, the importance of the misrepresentation for “conferring an aura of legitimacy” on what amounted to a novel legal theory, and other circumstantial factors-such as the experience and sophistication of the affiant and a lack of exigent circumstances-all conclusively favored recklessness. Id.

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