E.D.Ky.: “Franks hearings are not like lollipops at the bank—you do not get one just because you ask.”

Defendant does not get a Franks hearing on omitted information because every affidavit omits something. More is required in the preliminary showing that just something was omitted. United States v. Polly, 2010 U.S. Dist. LEXIS 108661 (E.D. Ky. October 8, 2010)*:

Franks hearings are not like lollipops at the bank—you do not get one just because you ask. Search warrant affidavits are presumptively valid. Franks v. Delaware, 438 U.S. 154, 172 (1978). Nevertheless, police officers may not intentionally or recklessly lie in their affidavits or omit material information in order to gin-up probable cause where it might not otherwise exist. Criminal defendants may challenge search warrant affidavits on these grounds, but the right to mount such a challenge is not automatic. Before the Court will grant the defendant an opportunity to challenge the affidavit in an evidentiary hearing, the defendant must pass an initial hurdle. This hurdle is particularly high where, as here, the defendant does not allege that the officer affirmatively lied in his affidavit, but rather that the officer omitted important information. After all, every affidavit omits some facts—that is an inherent part of the exercise of reducing real-world events to paper. Because “an allegation of omission potentially opens officers to endless conjecture about investigative leads, fragments of information, or other matters that might, if included, have redounded to the defendant’s benefit,” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997), the defendant must make a particularly strong preliminary showing before the Court will open the door to a Franks hearing. He must show that the affiant “engaged in ‘deliberate falsehood’ or ‘reckless disregard for the truth’ in omitting information from the affidavit” and that, if the omitted information had been included, probable cause would no longer exist. Id.