CA3: Made-up conclusion in affidavit for search warrant was material and not in good faith

A made-up conclusion in a search warrant affidavit was material, and false under Franks, and obviously not in good faith, and Herring required exclusion. United States v. Brown, 631 F.3d 638 (3d Cir. 2011):

As we see it, the major flaw identified by the District Court is not negligence in reviewing the evidence but rather Smith’s conclusion “that non-existent evidence actually existed, and, more importantly, [his decision to take] the affirmative step of purposely incorporating the non-existent evidence into the affidavit.” 647 F. Supp 2d at 513. The existence of contradictory evidence highlighted the problem with Smith’s affidavit, but (according to the District Court) Smith’s reckless disregard for the truth occurred when he made up Paragraph 7(c) out of whole cloth. Such a fabrication, in the District Court’s view, would justify invocation of the exclusionary rule regardless of whether or not police are in possession of evidence giving it the lie.

We agree with the District Court’s opinion, so understood. The underlying theory is that, ordinarily, a person does not believe something to be true (let alone swear in an affidavit that it is “true and correct to the best of my knowledge, information, and belief”) without an affirmative justification. That justification might come in the form of first-hand observation, or from information provided by a third party, or from some textual source, but we do not take seriously someone who claims that X is true but cannot provide any reason for thinking it so. In other words, a reasonable person’s default position is to doubt that a proposition is true until there are grounds to believe it. The absence of sufficient grounding to support an averment therefore constitutes an “obvious reason[] for doubt” under Wilson, 212 F.3d at 788, allowing the court to infer that an affiant acted with reckless disregard for the truth. Cf., e.g., Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (observing that a “factfinder may infer reckless disregard from circumstances evincing ‘obvious reasons to doubt the veracity’ of the allegations”) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984) (quoting St. Amant, 390 U.S. at 731)). …

The fact that a statement is a fabrication or a figment of a speaker’s imagination is sufficient reason for finding that it was not made in good faith—i.e., that it was made with (at least) reckless disregard for the truth—even if the speaker testifies that he believed the statement to be true. Although the District Court did not clearly articulate this epistemological conception of recklessness, such a theory lies at the heart of its ruling.