W.D.Va.: Omitted information was critical to PC finding; Franks challenge succeeds on recklessness and materiality

Defendant’s Franks challenges succeeds. Enough information was omitted from the affidavit for search warrant that the USMJ would not get a clear picture of what was really going on. And, it was material to the finding of probable cause. Motion to suppress granted. United States v. Anderson, 2020 U.S. Dist. LEXIS 8082 (W.D. Va. Jan. 17, 2020):

Detective Bridges purportedly attempted to corroborate CI-2’s report by writing that he “conducted multiple controlled purchases from Harold Anderson” at the same address. To be sure, “[i]n cases in which the police similarly omitted one of these facts, courts have upheld the warrants despite the omission … when there were detailed statements by the informants, significant corroboration by the police, or other indicators regarding the informant’s reliability ….” Simmons, 771 F. Supp. 2d at 918; see also United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996) (“[I]n evaluating whether an informant’s tip establishes probable cause, the degree to which the report is corroborated is an important consideration.”). However, statements of corroboration made in support of the search warrant application are insufficient where the affidavit contains “no affirmative allegation that the agent spoke with personal knowledge [or] any sources for the agent’s conclusion.” Gates, 462 U.S. at 276. Here, there is no indication in the affidavit of the sources of Detective Bridges’ corroborating statement. In fact, the affidavit suggests, misleadingly, that Detective Bridges himself identified Anderson as the seller. At the Franks hearing, however, Detective Bridges clarified that CI-1 conducted the first two controlled buys. After correcting the affidavit to include that information, and having found that the magistrate did not have sufficient information to evaluate CI-1’s credibility, the affidavit does not support a finding of probable cause.

Detective Bridges could have included facts regarding reliable sources for the corroborating information. For example, the government made much of audio and visual recordings from the first two controlled buys. Such information would support Detective Bridges’ assertion that Anderson was the seller during the earlier purchases. Like in Lull, however, the affidavit did not include any of that information, and the court cannot consider it now.

Ultimately, there is too much information missing from the affidavit for a magistrate to obtain a clear picture of the facts necessary for a probable cause determination. The story in the affidavit simply is not accurate, and while Detective Bridges’ testimony indicates that he could have corroborated the facts provided by CI-1 or CI-2, he failed to do so in his affidavit. Having removed from consideration the information provided exclusively by CI-1 and CI-2, the affidavit does not provide an adequate basis for identifying Anderson as the seller during the PC buy or prior controlled buys, negating probable cause. Detective Bridges may have been able to identify Anderson’s house based on his ongoing investigation, but he cannot confirm that Anderson was the seller in this instance so as to establish the likelihood that evidence of drug transactions remained in the home—a key link to the probable cause determination.