A Franks challenge requires an offer of proof, and it cannot be conclusory. United States v. Shaw, 2024 U.S. App. LEXIS 22585 (4th Cir. Sep. 5, 2024):
An allegation of falsity “cannot be conclusory”; instead, it “must rest on affidavits or other evidence … showing that the statements at issue are objectively false.” [United States v. Moody, 931 F.3d 366, 370 (4th Cir. 2019)] Affidavits, which “are normally drafted by nonlawyers in the midst and haste of a criminal investigation,” “must be interpreted in a commonsense manner,” and “[m]ere imprecision does not, by itself, show falsity.” Id. at 372 (internal quotation marks omitted). Even if falsity is established, “[t]he second showing, requiring intentional falsity or reckless disregard for the truth, is just as demanding. An innocent or even negligent mistake by the officer will not suffice.” Id. at 371. To establish recklessness in this context, “the particular affiant must have been subjectively aware that the false statement … would create a risk of misleading the reviewing magistrate judge and nevertheless chose to run that risk.” United States v. Pulley, 987 F.3d 370, 377 (4th Cir. 2021). “And here too, the defendant must provide facts—not mere conclusory allegations.” Moody, 931 F.3d at 371.
“The Franks test also applies when affiants omit material facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (internal quotation marks omitted). “When a defendant relies on an omission, [his] heavy burden is even harder to meet.” United States v. Haas, 986 F.3d 467, 474 (4th Cir. 2021). This is because “the affirmative inclusion of false information in an affidavit is more likely to” invalidate a warrant than an omission, as “[a]n affiant cannot be expected to include in an affidavit every piece of information gathered in the course of an investigation.” Colkley, 899 F.2d at 300-01. In this context, “[a]n officer acts with reckless disregard when []he fails to inform the magistrate of facts []he subjectively knew would negate probable cause. And the mere fact that information was omitted from an affidavit cannot alone show recklessness or intentionality.” Haas, 986 F.3d at 475 (citation omitted).
Regarding the final showing, courts consider the totality of the circumstances to determine whether the false or omitted information was necessary to establish probable cause. See Lull, 824 F.3d at 118; Colkley, 899 F.2d at 301. “A district court may not hold a Franks hearing where, after stripping away the allegedly false statements, the truthful portions of the warrant application would still support probable cause.” Moody, 931 F.3d at 371. And “[o]mitted information that is potentially relevant but not dispositive [of the probable cause determination] is not enough to warrant a Franks hearing.” Colkley, 899 F.2d at 301. This prong of the Franks inquiry serves “to prevent the admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was misled into believing that there existed probable cause.” Moody, 931 F.3d at 371 (internal quotation marks omitted).
If the defendant makes “a substantial preliminary showing” of the three Franks factors, then the district court “must hold a Franks hearing to develop the evidence on the affidavit’s veracity.” Haas, 986 F.3d at 474. And if the defendant establishes these three factors by a preponderance of the evidence at the hearing, “the search warrant must be voided and the fruits of the search excluded.” Franks, 438 U.S. at 156.
