CA5: When multiple SW applications were presented together, the others supported a “sparse” one

One affidavit of many involving the multiple search warrants presented at the same time was “sparse” but the issuing magistrate could rely on the totality. Reversed and remanded, however, for a Franks review which the district court declined to do. Mayfield v. Currie, 2020 U.S. App. LEXIS 30347 (5th Cir. Sept. 22, 2020)*:

Officer Currie does not cite any cases holding that, in determining whether an officer would have known that her affidavit failed to establish probable cause, it is appropriate to consider other affidavits and applications submitted to the same judge regarding the same case. But in the context of qualified immunity, it is the plaintiff’s burden to establish that an allegedly violated right was clearly established. See, e.g., Wigginton v. Jones, 964 F.3d 329, 338 (5th Cir. 2020). Plaintiff-Appellees have not met that burden. Indeed, their own Amended Complaint acknowledges that the municipal judge signed the arrest warrant in question “on the basis of the Currie affidavit and the Harrison affidavits,” and references the other warrants submitted by Officer Currie and her colleagues. The district court’s conclusion that Plaintiff-Appellees adequately alleged a Malley wrong was therefore error.

As noted above, however, the independent-intermediary doctrine does not begin and end with Malley. The parties also raised Franks before the district court and on appeal. But the district court did not analyze that issue, perhaps out of reliance on the principle that “a plaintiff cannot hold an officer liable under Franks for intentionally omitting important exculpatory information from a warrant affidavit when the officer has also committed a Malley violation by presenting a facially deficient warrant affidavit to the issuing judge.” See Kohler v. Englade, 470 F.3d 1104, 1113-14 (5th Cir. 2006).

“[I]t is the settled law of our circuit that the district court should have the first opportunity to address all of the issues contained in the appeal.” F.D.I.C. v. Lee, 130 F.3d 1139, 1141 (5th Cir. 1997). We therefore conclude that remand for further consideration of Franks is appropriate.