Defendant showed enough to get a Franks hearing. United States v. Roman, 2017 U.S. Dist. LEXIS 167167, 2017 WL 4517963 (D. Mass. Oct. 10, 2017). “Following the Franks hearing—which occurred on multiple days spread out between November of 2017 and January of 2018—the court will grant Defendant’s motion to suppress as to the search of his business. The court finds the Government committed a series of easily avoidable errors which, combined with the admittedly high risk of the harm that occurred here, amounted to reckless disregard for the truth. In addition, the court finds that the “reformed’ affidavit fails to establish probable cause to search Defendant’s business. As a result, the warrant to search Defendant’s business ‘must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.’ Franks, 438 U.S. at 156.” United States v. Roman, 2018 U.S. Dist. LEXIS 65274 (D. Mass. Apr. 18, 2018):
In light of these findings, the affidavit involves both two misrepresentations (the false statements attributed to CS) and an omission (the failure to divulge CS’s January 14, 2014 written statement). The court next must decide whether these missteps were made with reckless disregard for the truth. “[T]he Supreme Court in Franks gave no guidance concerning what constitutes a reckless disregard for the truth in fourth amendment cases, except to state that ‘negligence or innocent mistake [is] insufficient.'” Tanguay, 787 F.3d at 52 (quoting United States v. Davis, 617 F.2d 677, 694, 199 U.S. App. D.C. 95 (D.C. Cir. 1979)). Although the First Circuit has provided some additional clarification—for example, explaining that “[r]ecklessness may be inferred from circumstances evincing obvious reasons to doubt the veracity of the allegations,” Arias, 848 F.3d at 511 (quoting Ranney, 298 F.3d at 78)—these statements on their own remain somewhat vague. Recklessness and negligence, though, are established legal concepts outside of the Franks context. Therefore, in addition to the binding language set forth in Franks and its progeny, the court can also look to related case law for guidance.
The court finds Defendant has carried his burden, by a preponderance of the evidence, of demonstrating recklessness. McGrath, Alberti, and (to a lesser extent) Smith committed a number of easily preventable errors—any one of which, on its own, may have only constituted negligence. However, the court finds that the cumulative effect of these errors—especially considering the acknowledged risks of harm flowing therefrom—amounts to recklessness under these circumstances. These errors include, among others: the failure to retain or obtain a copy of CS’s January 14, 2014 written statement for inclusion in the DEA case file, despite the fact that Alberti typed the statement in McGrath’s presence; the failure to inform Smith of CS’s written statement and/or its content—specifically, that CS received the kilograms of cocaine (the seizure of which triggered the Gonzalez investigation) at 712 Boston Road in Springfield; the failure to reference CS’s written statement in any DEA report; and the failure of McGrath and Alberti when reviewing the affidavit to alert to (a) the lack of reference to CS’s written statement (or its content) or (b) the contradictory statement that the four kilogram drug transaction occurred at TWC Auto Body. There were also a number of less egregious errors which, although not determinative, support an inference that the investigation acted with reckless disregard for the truth in general. For example, in the affidavit Smith falsely quoted Defendant as using the word “dry” during a recorded meeting and then highlighted the importance of this misquoted word in the next sentence. Smith (along with McGrath and Alberti) failed to notice and follow up on an FBI report, added to the attachment tab in the DEA case file on February 4, 2014, which made reference to CS’s written statement. The DEA agents also failed to document the information CS provided while cooperating as well as their prior surveillance of CS, TWC Auto Body, and Defendant. Moreover, the decision by the Government to forgo specificity by using a single affidavit to apply for warrants at different locations is inconsistent with the level of care and attention the probable cause standard should generate.
In an analogous context, the First Circuit has explained that “[t]he distinction among such categories as ‘negligence,’ ‘reckless or callous indifference,’ and ‘intentional’ conduct can be elusive. According to general tort principles, however, a central distinction among these categories involves the actor’s degree of certainty that negative consequences will result from his act or omission.” Germany v. Vance, 868 F.2d 9, 18 n.10 (1st Cir. 1989). In this case, the court finds the Government witnesses generally credible; they testified with impressive candor in a forthright way demonstrating respect for the integrity of the judicial process. However, their own testimony also demonstrates their understanding of the high risk of harm associated with the key errors committed here. Each witness acknowledged that a confidential informant’s written statement regarding the location of a drug transaction with a target is a vital piece of evidence and, as such, it is particularly important to maintain or at least accurately summarize it in the case file so other agents would be aware of it. The dysfunctional engagement of FBI and DEA, following CS’s decision to cooperate, is gleaned by the court to have been obviously recognized by the agents—as evidenced through their testimony.