M.D.Ala.: In Franks, affiant-officer’s law enforcement sources may be challenged, too.

In a Franks analysis, the affiant-officer’s law enforcement sources may be questioned, too. United States v. Ohoro, 724 F. Supp. 2d 1191 (M.D. Ala. July 16, 2010), R&R 2010 U.S. Dist. LEXIS 71933 (M.D. Ala. April 12, 2010):

But in conducting a Franks analysis, the court will “hold the government accountable for statements made not only by the affiant but also for statements made by other government employees which were deliberately or recklessly false or misleading insofar as such statements were relied upon by the affiant in making the affidavit.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997); Hart v. O’Brien, 127 F.3d 424, 449 (5th Cir. 1997) (“A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.”); cf. Franks, 438 U.S. at 171 (“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” (emphasis added)). “[A] different rule would permit government officials deliberately to keep from affiants or the court information material to the determination of probable cause and by such conduct avoid the necessity of a Franks hearing.” United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).

Plaintiff was on parole, and Sprint turned over cellphone records on a demand from the police to locate plaintiff. He sued on the communications privacy statutes, § 1983, and the Fourth Amendment. His parole status permitted the state to look for him without process. There were also exigent circumstances. Sprint is entitled to summary judgment. (The criminal case is still pretrial.) Jayne v. Sprint P.C.S., 2010 U.S. Dist. LEXIS 71508 (E.D. Cal. July 14, 2010).*