Omission of exculpatory information is far less likely to be a Franks issue because (1) it doesn’t often matter and (2) it would lead to endless forays into what is exculpatory. Defendant fails to make a Franks preliminary showing. United States v. Schank, 2018 U.S. Dist. LEXIS 97275 (E.D. Ky. June 11, 2018):
Generally, Franks does not apply to “the omission of disputed facts,” except “in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit.” Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998). Thus, “[a]lthough material omissions are not immune from inquiry under Franks … an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmative includes false information.” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997) (citing United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990)). “This is so because an allegation of omission ‘potentially opens officers to endless conjecture about investigative leads, fragments of information, or other matter that might, if included, have redounded to defendant’s benefit.'” Id.