CA4: Not every fact an affiant knows needs to go in a SW affidavit for Franks

The omission of some facts didn’t make out a Franks violation. Affiants for search warrants are not required to itemize every fact they know and omission of some, the nonmaterial, doesn’t make out a Franks violation nor undermine the probable cause. United States v. Haas, 2021 U.S. App. LEXIS 2281 (4th Cir. Jan. 27, 2021):

This leaves us with Haas’s first category of omissions: various aspects of Sarah’s criminal history, including her encounter with the Henrico County police. But “[a]n affiant cannot be expected to include in an affidavit every piece of information gathered in the course of an investigation” so the “mere fact” that the agent did not include every piece of information known about Sarah in the affidavits “does not taint the[ir] validity.” Id. at 300-01 (quoting United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987)). Instead, to satisfy Franks’s intentionality prong, law enforcement must have omitted the information to mislead the magistrate judge or in reckless disregard of whether it would be misleading. Tate, 524 F.3d at 455; Colkley, 899 F.2d at 301. An officer acts with reckless disregard when she fails to inform the magistrate of facts she subjectively knew would negate probable cause. Miller v. Prince George’s Cnty., 475 F.3d 621, 627 (4th Cir. 2007). And the mere fact that information was omitted from an affidavit cannot alone show recklessness or intentionality. United States v. Shorter, 328 F.3d 167, 171 (4th Cir. 2003).

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