E.D.Tenn.: Omissions in Franks claims carry a higher burden

“Because defendant’s [Franks] claim relates to an alleged omission, he bears a heavy burden, as a Franks hearing is rarely merited in the case of an omission of exculpatory information. See Graham, 275 F.3d at 506. The Court does not find that the circumstances here warrant a Franks hearing. The affidavit merely states that defendant and Turner ‘discussed plans to have pounds of meth shipped to addresses in the Eastern District of Tennessee’ …. The affidavit does not say that the methamphetamine was shipped to defendant or that defendant would sell the methamphetamine. Instead, the affidavit correctly summarizes the extent of defendant’s involvement—he discussed with Turner plans to have pounds of methamphetamine shipped to the Eastern District of Tennessee. That the affidavit omitted information about a third individual’s involvement in this incident does not merit a Franks hearing, as such information would not have been particularly relevant to the determination of whether probable cause existed to search defendant’s residence for evidence of drug trafficking. Ultimately, the affiant’s summary of defendant’s involvement in this discussion is not ‘false’ and the affiant’s omission of Hounshell’s involvement does not warrant a Franks hearing.” United States v. Stewart, 2021 U.S. Dist. LEXIS 91592 (E.D. Tenn. May 13, 2021).

The affiant had good reason to believe that the CI was wrong about an important detail, and the USMJ would certainly want accurate information. Nevertheless, removing that fact from the affidavit does not undermine the probable cause as a whole. United States v. Searcy, 2021 U.S. Dist. LEXIS 91314 (W.D. Pa. May 13, 2021).