W.D.Va.: Def satisfies burden to get a Franks hearing by showing material omissions

Defendant satisfies his burden to get a Franks hearing by showing material omissions from the affidavit. United States v. Anderson, 2019 U.S. Dist. LEXIS 122131 (W.D. Va. July 23, 2019):

Considering the principle that reckless disregard may be shown if there is “evidence that a police officer ‘failed to inform the judicial officer of facts [he] knew would negate probable cause,'” Detective Bridges’ omission of the first CI’s offense—when that CI was thereafter terminated from the investigation of Anderson—and consequent omission of any information about the second CI, who ostensibly served as a replacement, is potentially material. Id. (quoting Miller v. Prince George’s Cty., 475 F.3d 621, 627 (4th Cir. 2007)). In Lull, the Fourth Circuit noted the omission from the search warrant application that the CI who conducted the controlled buy had committed theft during the buy and was subsequently arrested. The affidavit also did not include any information about the informant’s reliability or previous experience working as a CI. Id. at 112-13. After the district court held a Franks hearing, it denied the defendant’s motion to suppress. The Fourth Circuit reversed, highlighting that the Sheriff’s Office had discharged the CI who committed theft, that the investigator who submitted the search warrant application knew of the CI’s crime, and that the CI’s theft had an “obvious impact” on “any assessment of his reliability.” Id. at 116. The court found that this omitted information was directly relevant to the magistrate’s probable cause determination, particularly because of the importance of the CI’s reliability in making this determination and because the affidavit did not include any other information about the CI’s credibility or experience as an informant. Id. at 117. While the facts are slightly different here, looking to Lull, the affidavit’s exclusion of any credibility information regarding the second CI, as well as the omission about the first CI’s possession of narcotics, points to reckless disregard on the part of the affiant.

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