E.D.Wis.: There were false statements in the boilerplate, but they weren’t material

The USMJ determined that defendant made his burden of showing material falsity in the boilerplate information in the affidavit for search warrant and granted a Franks hearing. In a really long opinion, the USDJ agrees with the falsity but finds it wasn’t material to the probable cause showing and overrules the R&R. United States v. Cloyd, 2020 U.S. Dist. LEXIS 26962 (E.D. Wis. Feb. 18, 2020) (one can’t help but think that maybe the hearing would have been easier in the long run):

The defendant’s evidence does support a conclusion that Malafa relied heavily on boilerplate that didn’t always fit the circumstances of each separate search. It does support a conclusion that Malafa was imprecise, if not loose, in implying that certain pieces of information supported certain conclusions. It supports a conclusion that Malafa was not consistent in the way he related information in search warrant affidavits versus police reports. Defense counsel did a lot of legwork, scrutinized Malafa’s words in detail and found these problems. But the court cannot conclude that the problems the defense has identified add up to a substantial showing supporting a Franks hearing.

The court has presumed that the 8th Street affidavit was valid, has confined its review to the defendant’s evidence and has considered whether that evidence makes a substantial preliminary showing that Malafa made materially false or misleading statements or omissions and whether he made them knowingly or recklessly. The court concludes that the defendant has not made the requisite substantial preliminary showing. The court finds that Judge Jones committed clear error in concluding otherwise. Because the court finds that none of Malafa’s statements were materially false or misleading, it need not determine whether absent the allegedly false or misleading statements, the 8th Street affidavit would have supported a finding of probable cause.