CA9: Virtual knowing Franks violation leads to suppression of immigration search before BIA

Petitioner established that the warrant for employment records sought by the Maricopa County Sheriff’s Office was based on knowingly material omissions and thus qualified as an egregious violation of the Fourth Amendment for an immigration proceeding. Frimmel Mgmt. v. United States, 2018 U.S. App. LEXIS 20806 (9th Cir. July 26, 2018):

b. The Fourth Amendment Violation Was Egregious because MCSO Acted Unreasonably

The Government also concedes that MCSO’s conduct was an egregious Fourth Amendment violation. As stated above, “a Fourth Amendment violation is egregious if evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable officer should [have known] is in violation of the Constitution.” Lopez-Rodriguez, 536 F.3d at 1018 (citation, quotation marks, and emphasis omitted).

Under Franks, a police officer who recklessly disregards the truth or knowingly includes false material information in, or omits material information from, a search warrant affidavit “cannot be said to have acted in an objectively reasonable manner.” Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir. 1991) (quoting Olson v. Tyler, 771 F.2d 277, 281 (7th Cir. 1985)), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002). In other words, if an officer recklessly omits or falsifies material information, the officer has acted unreasonably and thus the officer’s actions are sufficient to qualify as egregious conduct under Adamson.

As discussed above, MCSO made several reckless material omissions or distortions in the affidavits. “Because the [Franks] principle was firmly established at the time [the MCSO detectives obtained the warrant and searched Uncle Sam’s restaurants and the home of Bret Frimmel], we conclude that a reasonable officer should have known that both the seizure of [employment records] and the unlawful entry into [Uncle Sam’s and Bret Frimmel’s home] violated the Constitution.” Orhorhaghe, 38 F.3d at 503. We therefore hold that MCSO’s “Fourth Amendment violations were egregious.” Id.