The affidavit for a search warrant in a 78 count white collar case from the Virgin Islands was held by the District Court to be so infused with reckless information that it suppressed the search, effectively ending the government’s case. On appeal, the Third Circuit independently reviewed the evidence and concluded that the affiant officer earnestly tried to corroborate information from other governmental sources and provide the best possible information he could. Therefore, the officer was not reckless under Franks. The government argued, without success, as quoted below, that the product of the search could prove the affiant correct, but the court could not accept that argument because it would justify the search based on evidence never presented to the Magistrate Judge, and the “tail would wag the dog.” United States v. Yusuf, United States v. Yusuf, (3d Cir. August 24, 2006):
Finally, a review of the record reveals a reasonably plausible explanation for the incorrect information provided by VIBIR [Virgin Islands Bureau of Internal Revenue] at the time that Agent Petri submitted the affidavit to the magistrate judge: that United had underreported its gross receipts to VIBIR for 1998 through 2000. Our review demonstrates that Petri undertook his investigation with some skepticism, but that he and his fellow agents were assured at every possible investigatory avenue that the records provided by VIBIR were accurate. Agent Petri and his fellow officers did not simply “go through the motions,” but diligently pressed VIBIR to ensure that the information was correct. Agent Petri testified at the Franks hearing that he attempted to disprove the validity of the figures provided by VIBIR. (App. 557.) After being assured repeatedly by VIBIR that the information was accurate, Agent Petri was left with the eminently plausible conclusion at that point in the investigation that United had underreported its gross receipts returns. That this information later turned out to be incorrect because of VIBIR’s internal mistakes is not determinative, as we focus our analysis under Franks on whether a reasonable officer in Agent Petri’s position would have had an obvious reason at the time he submitted the affidavit to doubt the accuracy of the information. No such reason existed in this case.
. . .
n11 Defendants argue, and the District Court agreed, that Agent Petri omitted material information in the affidavit: namely, that he did not inform the magistrate judge that he was uncomfortable with the discrepancies in the data. We disagree. Agent Petri’s purported omission consists of his alleged subjective misgivings regarding the quality of the information he received from VIBIR. A review of the affidavit reveals, however, that Agent Petri did not omit any material information in the affidavit, as paragraph 23 contains the discrepancy between the income tax filings and the gross receipts. Our cases dealing with purported material omissions have not recognized that an agent is required to set forth his subjective misgivings regarding information in the affidavit; rather, those decisions have focused on whether the agent recklessly omitted objective information that is material to the magistrate judge’s determination of probable cause. See Wilson v. Russo, 212 F.3d 781, 791 (3d Cir. 2000) (omitting fact that eyewitness spotted defendant in a different location while a crime was ongoing); Sherwood v. Mulvihill, 113 F.3d 396 (3d Cir. 1997) (omitting fact that officer directed third-party to make drug purchase); United States v. Frost, 999 F.2d 737, 743-44 (3d Cir. 1993) (omitting fact that drug dog was not “alerted” to alleged courier’s suitcase).
The court added interesting language about the purpose of the Franks doctrine about reformulating PC with additional information derived from the search:
The disconcerting part of our analysis of the District Court’s decision is that the ultimate determination of whether the assertions in paragraphs 23 and 24 were made with reckless disregard for the truth is inconsequential. The reformulated affidavit clearly establishes probable cause to authorize the search warrants. n12 Even if this Court were to strike paragraphs 23 and 24 from the affidavit, there are sufficient factual allegations of money laundering to support a finding of probable cause to search the three Plaza Extra supermarkets for corporate business records.
n12 We note that it would be improper to reformulate the affidavit with the “correct” gross receipts figures reported in United’s 1998 through 2000 Virgin Islands tax returns to show a $7.16 million difference between what was reported on United’s Virgin islands gross receipts returns and what was reported on its 1998 through 2000 U.S. corporate income tax returns. The Government contends that information allegedly indicating that United had underreported its gross income by $7.16 million would have established probable cause to issue the warrants. Defendants, in contrast, assert that it would be improper to reformulate the affidavit with the “corrected” figures because the Government would not be deterred by its own misconduct.
We agree with defendants. The purpose of Franks and its progeny is to deter law enforcement personnel from including recklessly false information in affidavits of probable cause. If an agent provides recklessly false information, the government should not get the benefit of the fortuitous circumstance that evidence obtained as a result of the defective search warrant would have been sufficient to establish probable cause had it been contained in the original affidavit. The Government’s argument assumes that the tail can wag the dog, i.e., that we can consider the corrected information. This argument is flawed, however, because the magistrate judge is limited to the facts submitted in the affidavit in making a determination of probable cause. United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Indeed, in reviewing whether the magistrate had a “substantial basis” to issue the warrant, we are limited to reviewing the affidavit and cannot “consider information from 28 other portions of the record.” Id.; see also United States v. Button, 653 F.2d 319, 326 n.8 (8th Cir. 1981). If we were to “correct” the affidavit as suggested by the Government, we would not only be infusing extraneous information into the probable cause determination, but we would also allow the Government to receive the benefit of its misconduct. See Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (explaining that the purpose of the exclusionary rule is to ensure that “the prosecution is not put in a better position than it would have been in if no illegality had transpired”); see also Baldwin v. Placer County, 418 F.3d 966, 971 (9th Cir. 2005) (holding that a reformulated affidavit must be based upon information already contained in the warrant); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.4(c) (4th ed. 2004) (stating that an affidavit that contains knowing falsehoods “should not be open to rehabilitation by a process of substituting for the affiant’s lies other information which is really the truth from which he deliberately departed”). That result is not endorsed by Franks, which requires courts to “set to one side” the affirmative misstatements and determine whether the remaining information in the affidavit supports a finding of probable cause. 438 U.S. at 155; see also Baldwin, 418 F.3d at 971.
Additional information may be incorporated into an affidavit only if we determine that a government agent made a material omission. The reason for the distinction between omissions and misrepresentations is that an omission cannot be excised; rather, the omitted information is introduced into the affidavit in order to determine whether the omission was material. See Sherwood, 113 F.3d at 400. See also 2 LaFave, supra, § 4.4(c) (noting that the outcome in Franks challenges may turn on whether the defect is a material omission or a misstatement). Because the alleged misconduct in this case focuses on misstatements by a government agent, rather than omissions, we will not reformulate the affidavit with the “corrected” gross tax receipts information.
