M.D.Ala.: Summary of the law of Franks

The Franks claim here fails because, while the affidavit was not perfect, it was good enough. Quibbling over the details where the affidavit was prepared in haste did not show that it was recklessly or intentionally false. United States v. Moreland, 2010 U.S. Dist. LEXIS 114618 (M.D. Ala. October 27, 2010), adopting 2010 U.S. Dist. LEXIS 115091 (M.D. Ala. June 25, 2010) (R&R), summarizing Franks law:

Affidavits supporting search warrants are presumed to be valid. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

To prevail on a motion-based on allegations of falsity in the supporting affidavit-to suppress evidence that was seized pursuant to a search warrant, the defendant has the burden of establishing that (1) the affiant made the alleged misrepresentations or omissions knowingly or recklessly and (2) exclusion of the alleged misrepresentations or inclusion of the alleged omissions would result in a lack of probable cause.

United States v. Fussell, 366 Fed. Appx. 102, 2010 WL 546714 (11th Cir. 2010) (No. 09-11555). See also United States v. Phillips, 323 Fed. Appx. 778, 780 (11th Cir. 2009) (No. 08-11502); United States v. Umansky, 291 Fed. Appx. 227 (11th Cir. 2008). “Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Franks, 438 U.S. at 171.

If a defendant demonstrates by a preponderance of the evidence that an affidavit used to procure a search warrant contains intentionally or recklessly false statements and that, without the false statements, the affidavit is insufficient to establish probable cause, the court must void the search warrant and exclude the fruits of the search. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). “[A] warrant affidavit violates the Fourth Amendment when it contains omissions “made intentionally or with a reckless disregard for the accuracy of the affidavit.” Madiwale v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir. 1997) quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Thus, a defendant must establish (1) that information contained in the affidavit was untrue, (2) that inclusion of the untrue information was either deliberate or in “reckless disregard for the truth,” and (3) that the untrue information was an essential element of the probable cause showing relied upon by the judicial officer in issuing the search warrant. See O’Ferrell v. United States, 253 F.3d 1257, 1267 (11th Cir. 2001).

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The court recognizes, and nobody disputes, that the affidavit is not perfect. However, perfection is neither the standard nor the question; the court is bound by the standards set forth in Franks. Moreland has failed to present any objective evidence demonstrating that statements in the affidavit were false. Rather, he argues that the statements were inaccurate. Furthermore, although Moreland takes issue with the implication that the cooperating source had a history with James, he has failed to show by a preponderance of the evidence that the affidavit used to procure the state search warrant contained intentionally or recklessly false statements. At the time the affidavit was presented, the source was cooperating. Finally, the mere fact that more or different corroboration was available is insufficient to make the requisite showing under Franks that statements in the affidavit were untrue. Consequently, because the court concludes that Moreland has not established that the affidavit in support of the search warrant was based on intentionally or recklessly false information, his motion to suppress the items seized from his residence on Carlisle Street should be denied.