{"id":8080,"date":"2012-12-12T18:30:14","date_gmt":"2012-12-12T18:22:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-12-12T18:22:37","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8080","title":{"rendered":"N.D.Ohio: It’s hard to show an omission of disputed fact shows a Franks<\/em> violation; remainder here showed PC"},"content":{"rendered":"

Defendant failed to show that omission of disputed facts from the affidavit for the search warrant constituted a Franks violation. What was there showed probable cause, and including what was omitted wouldn\u2019t have changed anything. United States v. Miller, 2012 U.S. Dist. LEXIS 174509 (N.D. Ohio December 10, 2012):<\/p>\n

While “false information” can include material omissions, 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.” United States v. Fowler, 535 F.3d 408, 415 (6th Cir. 2008) (“Allegations of material omission are held to a higher standard because of the ‘potential for endless rounds of Franks hearings’ due to potentially ‘endless conjecture about investigative leads, fragments of information, or other matter[s] that might, if included, have rebounded to defendant’s benefit.'” (quoting United States v. Martin, 920 F.2d 393, 398 (6th Cir. 1990)). The Sixth Circuit has reiterated that “except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and that omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts.” Mays v. City of Dayton, 134 F.3d 809, 816 (6th Cir. 1998) (emphasis in original). Thus, “an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information.” United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).<\/p><\/blockquote>\n

P.S.: Defendant’s street name in the indictment is “Jesus Penis.”<\/p>\n","protected":false},"excerpt":{"rendered":"

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