CA5: Franks violation states 4A claim with no qualified immunity

Defendant stated a Fourth Amendment claim for false arrest by a false affidavit for arrest, and the statute of limitations started to run on defendant’s acquittal. A Franks violation generally defeats qualified immunity. Winfrey v. Rogers, 2018 U.S. App. LEXIS 23139 (5th Cir. Aug. 20, 2018), prior appeal, 882 F.3d 187 (5th Cir. 2018):

Furthermore, we agree that a Fourth Amendment claim is cognizable under the facts here. This Court has held that although there is no “freestanding constitutional right to be free from malicious prosecution,” “[t]he initiation of criminal charges without probable cause may set in force events that run afoul of explicit constitutional protection—the Fourth Amendment if the accused is seized and arrested, for example.” Castellano v. Fragozo, 352 F.3d 939, 945, 953 (5th Cir. 2003) (en banc). In Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1998), a plurality of the Supreme Court said that malicious-prosecution claims must be based on the Fourth Amendment, rather than on “the more generalized notion of ‘substantive due process,'” because the Fourth Amendment is the explicit textual source against this type of government behavior. Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). And recently, in Manuel v. City of Joliet, 137 S.Ct. 911, 197 L. Ed. 2d 312 (2017), the Supreme Court considered whether a plaintiff had stated a Fourth Amendment claim when he was arrested and charged with unlawful possession of a controlled substance based upon false reports written by a police officer and an evidence technician. Id. at 915. There, the Court said the plaintiff’s “claim fits the Fourth Amendment, and the Fourth Amendment fits [the plaintiff’s] claim, as hand in glove.” Id. at 917. And it held “that the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process.” Id. at 920.

These cases fully support a finding that the Fourth Amendment is the appropriate constitutional basis for Junior’s claim that he was wrongfully arrested due to the knowing or reckless misstatements and omissions in Johnson’s affidavits. We, therefore, hold that a Fourth Amendment claim is presented, and we will decide the remainder of the issues based upon this legal conclusion.

. . .

Here, we conclude that Junior alleges a clearly established constitutional violation. Under the first prong of Franks, Junior must present evidence that Johnson, through material omissions or otherwise, made “a false statement knowingly and intentionally, or with reckless disregard for the truth.” 438 U.S. at 155. Junior provides evidence that Johnson made false statements in his affidavit by (1) omitting Campbell’s statements that were contradicted by the physical evidence; (2) misstating that Pikett’s drop-trail from Burr’s house to the Winfrey house used Junior’s scent, when the drop-trail actually used Hammond’s scent; and (3) omitting Campbell’s inconsistencies between his statements, that is, between Campbell’s first statement—which was related in the affidavit—that said that Megan and Junior helped Senior to murder Burr and Campbell’s inconsistent later statement that Senior’s cousin was the accomplice. We find that this showing is also sufficient to demonstrate that there is an issue of material fact as to whether Johnson acted intentionally, knowingly, or recklessly, because Junior alleges that Johnson either knew or should have known that these material omissions and false statements could lead to an arrest of Junior without probable cause. In short, the evidence presented is sufficient to support a finding that his conduct was unreasonable in the light of the well-established principle requiring probable cause for the issuance of an arrest warrant.

Yet, we must proceed further to the second prong of Franks in order to resolve whether “the allegedly false statement is necessary to the finding of probable cause,” as required by the Franks analysis. 438 U.S. at 156. To determine whether the false statement was necessary for this finding, Franks requires us to consider the faulty affidavit as if those errors and omissions were removed. We then must examine the “corrected affidavit” and determine whether probable cause for the issuance of the warrant survives the deleted false statements and material omissions. See Franks, 438 U.S. at 156 (saying that courts must excise false statements); United States v. Bankston, 182 F.3d 296, 305-06 (5th Cir. 1999) (applying Franks to omissions and using a corrected affidavit that “contain[ed] the allegedly exculpatory conversation” to determine whether that affidavit would establish probable cause to authorize electronic surveillance), overruled on other grounds by Cleveland v. United States, 531 U.S. 12, 121 S. Ct. 365, 148 L. Ed. 2d 221 (2000). The warrant will be valid only if the corrected affidavit establishes probable cause for Junior’s arrest.