D.Mass.: Def satisfied Franks to get a hearing on the statements being intentionally or recklessly false

Defendant satisfied his Franks burden of a substantial preliminary showing of recklessness on the informant’s reliability to get a hearing. The court is persuaded in part because of the weak showing of nexus. Still, however, defendant’s burden at the Franks hearing is high to prove it was intentional or reckless and not just negligent. United States v. Murray, 2020 U.S. Dist. LEXIS 151021 (D. Mass. Aug. 20, 2020):

Accordingly, in light of the affidavit’s weak showing connecting criminal activity to the home, when the material omissions and misrepresentations are added to mix—which further undermine Giedrowicz’s already suspect reliability and further weaken the nexus showing—the court concludes probable cause would be lacking. The court also concludes, in light of the number of alleged material omissions and misrepresentations and their importance to the probable cause determination, that Defendant has raised a sufficient inference of recklessness. See Arias, 848 F.3d at 511; Gifford, 727 F.3d at 98-99.

Defendant still faces a difficult task. He must prove that the misrepresentations or omissions—assuming they occurred—were done either intentionally or with reckless disregard for the truth. If he succeeds in that showing, however, the usual deference accorded the issuing magistrate judge’s decision to approve the warrant would not apply, and the court is prepared to say—at this preliminary stage—that probable cause would be absent for insufficient connection to the house. See Roman, 942 F.3d at 50 (“[W]hile reviewing courts generally afford substantial deference to a magistrate’s determination of probable cause, where ‘[a]llegations of intentional or reckless misstatements or omissions’ are proven true, we owe ‘no deference to a magistrate’s decision’ because this “‘implicate[s] the very truthfulness, not just the sufficiency, of a warrant application.'” (quoting Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005)). Defendant, the court finds, is entitled to attempt to make that showing at a Franks hearing.