W.D.Wash.: No exclusion where alleged misconduct was not flagrant

Here, there was the intervening circumstance of an arrest warrant. There was also probable cause. United States v. Howell, 2025 U.S. Dist. LEXIS 10557 (W.D. Wash. Jan. 21, 2025)*:

Officers should not be caught between a Franks hearing for untruthfulness, see infra Part II(C), and a rule that punishes too much truth. Instead, the neutral magistrate serves an independent and important check. They are capable of evaluating probable cause on the submissions of the government, including when asked to rely on certain information and not other information. Cf. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (“A magistrate’s determination of probable cause should be paid great deference by reviewing courts.”) SA Kimmel did not inevitably taint the warrant by telling the magistrate the truth. The magistrate could still have refused the warrant but, as discussed above, they found sufficient probable cause in the preexisting information. This Court does not find otherwise.

In summary, SA Kimmel viewed four digital images that came in with a Cybertip. Soon thereafter, he realized he should have a warrant and obtained one. This permitted him to view and describe the four images in the affidavit for a second warrant. “[T]hese errors in judgment hardly rise to a purposeful or flagrant violation of [Howell’s] Fourth Amendment rights.” Strieff, 579 U.S. at 241. Therefore, the officer’s misconduct was not flagrant.

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