CA2: Omissions from affidavit were material and denied QI

District court’s denial of qualified immunity affirmed. Omissions from the affidavit for the search warrant were material to the finding of probable cause. Pourkavoos v. Town of Avon, 2020 U.S. App. LEXIS 28183 (2d Cir. Sept. 3, 2020):

Espinoza’s conduct does not meet even that low bar. No competent officer would have crafted, as Espinoza did, a statement of medical reasons for which the three women visited Pourkavoos that excluded mention of almost all such issues that appeared remotely related to the procedures about which the women complained. No competent officer would have “improperly included his subjective beliefs,” as the District Court observed that Espinoza did based on “discrepancies between the patients’ recorded statements and their written statements as recited in the warrant application.” App’x 124. We find that the record amply supports the District Court’s conclusion that the information received by Espinoza failed to show that Pourkavoos’s actions were inappropriate, and that Espinoza omitted most of the information that tended to explain Pourkavoos’s actions from the Applications. No competent officer would do that, nor should any officer be excused for doing so. No reasonably competent officer could have concluded, based on the facts shown by this record to have been known to Espinoza, that probable cause existed. We therefore see no legal error in the District Court’s decision to deny qualified immunity at this early stage of the litigation.