D.Idaho: Def’s PC challenge was really a Franks challenge and should be viewed like one

Defendant sought to challenge his search warrant as a lack of probable cause but couched it in terms that sounded like Franks. He needs to make this clear so the government can appropriately respond. United States v. McComas, 2021 U.S. Dist. LEXIS 16617 (D. Idaho Jan. 26, 2021):

To some degree, however, this is an argument of semantics. McComas repeatedly claims this is not a Franks motion because he is not challenging the “veracity” of the information, only the “sufficiency” and that all he is asserting is that Detective Lenz’s omissions call into question the sufficiency of the affidavit and subsequent warrant. The Court understands the difference between these two concepts; however, the bottom line is McComas is, nonetheless, challenging the sufficiency of the affidavit. In other words, “veracity” and “sufficiency” are but different sides of the same coin, at least when the sufficiency argument is based on the idea that information has been withheld. The Ninth Circuit has clearly held that “deliberate or reckless omissions of facts that tend to mislead” are grounds for a Franks hearing. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985). So while he may not be challenging affirmative statements (only omissions) or claiming they were deliberately false (only “flaws”), his arguments still fall under the Franks umbrella.

It seems clear that McComas did not intend his suppression hearing to be a Franks hearing. That said, his arguments regarding Detective Lenz are Franks arguments. Accordingly, the choice is McComas’s to make. He may challenge the affidavit and warrant, but he must do so in the correct manner and allow the Government an opportunity to respond.