W.D.Tenn.: Def succeeds in a Franks challenge

Something we don’t see hardly ever: The omitted information was material to probable cause and the affiant omitted it thinking it didn’t matter. But it did. And the good faith exception doesn’t apply here. United States v. Pettigrew, 2024 U.S. Dist. LEXIS 207943 (W.D. Tenn. Nov. 15, 2024):

  1. Intent to Mislead

The evidence demonstrates that SA Williams omitted critical information with the purpose of misleading the issuing judge, though the Court finds no evidence of malice or ill-will in these actions. Rather, the omissions appear to stem from an overzealous attempt to secure the warrant during what SA Williams testified was an extended day and night operation …, perhaps driven by a sincere but misguided belief that certain details were not material to probable cause.

SA Williams, drawing on twenty-six years of law enforcement experience, certainly understands the critical role that source credibility and operations control play in establishing probable cause. … He testified that he understands that operational integrity is paramount—that searching a source, their vehicle, and noting additional stops have a significant impact on the investigation. … The Court, like the Magistrate Judge, interprets his testimony to mean that he understands a controlled buy must be genuinely controlled. …

Against this backdrop of experience and knowledge, several critical omissions stand out. The Confidential Source (“CS”) referenced in the affidavit was untested and had never previously worked as a confidential source. … Moreover, Mr. Huey, described in the affidavit as an “unwitting party,” was, in fact, the original target of the investigation. … Additionally, the CS and Mr. Huey made an extended stop at Mr. Huey’s grandmother’s residence, where Mr. Huey went inside for an extended period. … And Mr. Huey was not searched before entering Defendant’s residence and, therefore, could have already possessed methamphetamine. …

While SA Williams’ judgment was flawed in this instance, his distinguished record of service suggests this was an isolated lapse rather than reflective of his typical practice or professional character. … Nevertheless, the Court must conclude that the omission of such significant details, which directly affected the issuing judge’s ability to assess source credibility and operational integrity, evinces an intent to present a stronger case for probable cause than actually existed. See United States v. Cican, 63 F. App’x 832, 837 (6th Cir. 2003) (“A fact finder may infer reckless disregard from circumstances evincing obvious reasons to doubt the veracity of the allegations.”).

The characterization of Mr. Huey as an “unwitting party” when he was, in fact, the original target of the investigation, coupled with the omission of unmonitored stops at his grandmother’s residence where he could have obtained methamphetamine, particularly indicates an intention to mislead the issuing judge about the reliability of the information and the integrity of the controlled operation.

The Magistrate Judge found that SA Williams had “obvious reasons to doubt the accuracy of the information contained” in the affidavit and that his omissions amount to a reckless disregard of the truth. … While the Magistrate Judge applied the reckless disregard standard, the Court, applying the higher standard, concludes that these omissions were made with the intent to mislead the issuing judge. See Hale v. Kart, 396 F.3d 721, 727 (6th Cir. 2005) (suggesting that strong material omissions could provide evidence of an intention to mislead).

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