D.Vt.: Def’s misidentification in original affidavit was later corrected and overall survives Franks challenge

There were omissions in the original affidavit for warrant about identification that were later cleared up in a subsequent affidavit for another. On the whole, probable cause remains no matter what. United States v. Mohamud, 2022 U.S. Dist. LEXIS 205560 (D. Vt. Nov. 9, 2022)*:

The question of materiality is closely related. In the case of affirmative false statements, the court “gauge[s] materiality by a process of subtraction.” Awadallah, 349 F.3d at 65. The opposite is true in the case of omission. Then the process is necessarily one of addition meaning that we add the omitted information back into the affidavit to determine whether there is still a basis for the finding of probable cause. In this case, we have an example close at hand in the separate probable cause affidavit filed in support of the state court drug charges. There the detective described the mistaken identity and its correction in detail. This fuller account changes little about the basis for probable cause to search. We learn that the person originally suspected of selling crack cocaine was the wrong brother and that both the detective who witnessed a hand-to-hand transaction and the buyer (who later became a confidential source) made the same mistake. The police soon realized their error and when shown photos of both brothers, the confidential source changed his identification as well.

Adding the information about the mistaken identification to the other evidence offered in support of the warrant does not reduce or compromise the evidence of probable cause to search. Ayub Mohamud remains the person identified by the police in the course of two controlled buys. This basis for the search of his home remains unchanged.

The court denies the motion for a Franks hearing because there has been no sufficient showing of evidence, direct or by inference, of a material omission from the probable cause affidavit or either an intent to deceive the court or reckless conduct. The court also denies the motion to suppress. …

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