D.Mont.: A helpful summary of how to look at a potential Franks challenge

United States v. Howard, 2024 U.S. Dist. LEXIS 101989 (D. Mont. June 7, 2024):

The limited right of criminal defendants to challenge false statements in a warrant affidavit under Franks also allows criminal defendants to “challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead.” United States v. Stanert, 762 F.2d 775, 780-81 (9th Cir. 1985). To warrant a Franks hearing for an alleged material omission, the defendant must first make a “substantial preliminary showing that the affidavit contained a misleading omission and that the omission resulted from a deliberate or reckless disregard for the truth” and, second, must demonstrate “that had there been no omission, the affidavit would have been insufficient to establish probable cause.” United States v. Kyllo, 37 F.3d 526, 529 (9th Cir. 1994). Omissions are material only when the omitted facts “cast doubt on the existence of probable cause.” United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992).

A defendant does not need to show clear proof of deliberate or reckless omissions. United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir. 1982). However, the offer of proof showing intentionality or recklessness must be “substantial.” Franks, 438 U.S. 155-56. “Allegations of negligence or innocent mistake are insufficient” to qualify for an evidentiary hearing. Id. at 171. Furthermore, “if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Id. at 171-72.

Underlying the Court’s analysis is the well-settled rule that “[i]n doubtful cases, preference should be given to the validity of the warrant.” United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987) (quoting United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986)) (alteration in original). This deference extends to the affidavit underlying the warrant, for the “inquiry [of whether a defendant has made a substantial preliminary showing of deliberate or reckless falsity] begins with a presumption that an affidavit in support of a search warrant is valid.” United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004) (citing Franks, 438 U.S. at 171).

Howard alleges the affidavit contained false information and omitted certain facts. (Doc. 50-1 at 11). Thus, Howard must show that the affidavit, scrubbed of the false statements and supplemented by the alleged omissions, would be insufficient to support a finding of probable cause. See Stanert, 762 F.2d at 782. Probable cause exists if the affidavit provides a substantial basis for believing that criminal activity might have been occurring at the place to be searched. See United States v. Martinez-Garcia, 397 F.3d 1205, 1216 (9th Cir. 2005). “Probable cause requires a fair probability, but not a certainty, that a search would yield evidence of crime.” Id. at 1217 (citing Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).