E.D.Mich.: A Franks challenge based on omissions is a higher bar to clear

When a Franks challenge is based on omissions, the bar is higher. Here, defendant didn’t meet it. United States v. McCoy, 2022 U.S. Dist. LEXIS 30230 (E.D.Mich. Feb. 18, 2022):

Defendants do not argue that any of the information presented in the affidavit was strictly untrue. Rather, Defendants argue that the government should have included additional information in the affidavit that it had in its possession. Because Defendants’ Franks argument rests on omissions, rather than affirmative falsehoods, Defendants face a higher bar. See United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) (“[the Sixth Circuit has] repeatedly held that there is a higher bar for obtaining a Franks hearing on the basis of an allegedly material omission as opposed to an allegedly false affirmative statement.”). A defendant is entitled to a Franks hearing based on alleged omissions “if and only if (1) the defendant makes a substantial preliminary showing that the affiant engaged in deliberate falsehood or reckless disregard for the truth in omitting information from the affidavit, and (2) a finding of probable cause would not be supported by the affidavit if the omitted material were considered to be a part of it.” Fowler, 535 F.3d at 415.