CA11: Affiant’s not putting what he thought from CI was false didn’t violate Franks

The officer declined to put the CI’s inconsistent statements in that he thought were false. This didn’t violate Franks, and there was probable cause anyway. United States v. King, 2018 U.S. App. LEXIS 30122 (11th Cir. Oct. 25, 2018):

The District Court correctly ruled that Mr. King failed to make the required showing. The record includes no evidence that Lt. Smith intentionally or recklessly produced a misleading affidavit in support of his application for a search warrant. At the time he wrote the affidavit, Lt. Smith had heard from a number of witnesses, including Mr. Davis, that Mr. King threatened Mr. Wiggins’s life over the last few months. It matters not that Lt. Smith did not include exactly when each of those threats was made. See Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir. 1997) (“Omissions that are … insignificant and immaterial[] will not invalidate a warrant.”).

Neither is there evidence supporting Mr. King’s contention that Lt. Smith recklessly omitted Mr. Davis’s earlier, inconsistent statements from the affidavit. Based on Mr. Davis’s answers, Lt. Smith thought Mr. Davis initially provided inconsistent statements out of fear of retaliation by Mr. King. He therefore allowed Mrs. Davis to speak with Mr. Davis to assuage any fears Mr. Davis might have had about answering truthfully. Afterwards, Lt. Smith included in his affidavit only the information he thought accurate. He testified that he omitted Mr. Davis’s earlier inconsistent narratives from the affidavit because he thought they were false. He further testified he did not suggest Mr. Davis implicate Mr. King in the murder. At most, Lt. Smith “kind of alluded” to the possibility Mr. Davis was not being entirely truthful because he was afraid of Mr. King. He did so because Mrs. Davis had already informed Lt. Smith her husband was afraid of Mr. King and would withhold the truth based on that fear. The District Court found Lt. Smith credible. In contrast, Mr. King’s argument that Lt. Smith purposefully manipulated his interview with Mr. Davis to implicate Mr. King is speculative at best. On this record, the District Court did not err when it denied Mr. King’s motion to suppress.

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