E.D.N.C.: Omission of details doesn’t mean officer is trying to mislead under Franks

Omission of information from an officer-created affidavit for a search warrant does not mean that the officer was trying to mislead for Franks purposes. It is expected that some details will be left out, and that’s normal. United States v. Marion, 2012 U.S. Dist. LEXIS 94931 (E.D. N.C. June 5, 2012):

Indeed, the Fourth Circuit has recognized that an affidavit drafted by non-lawyers submitted in support of a search warrant application “cannot be expected to include … every piece of information gathered in the course of an investigation.” Tate, 524 F.3d at 455 (quoting Colkley, 899 F.2d at 300). Moreover, “because every piece of information cannot be expected to be included, the very process of selecting facts to include for the demonstration of probable cause must also be a deliberate process of omitting pieces of information. Certainly, such intentional omissions do not satisfy the requirement of Franks.” fd. at 455; Colkley, 899 F.2d at 300-01 (a showing of intentional omission is not enough to merit a Franks hearing; rather, a defendant must show the omission was designed to mislead or was made with reckless disregard whether it had a misleading effect); see Clenney, 631 F.3d at 664 (merely identifying factual omissions from warrant affidavit not sufficient). Likewise, the information omitted from the warrant affidavit must be material. See Colkley, 899 F.2d at 301 (“[T]o be material under Franks, an omission must do more than potentially affect the probable cause determination; it must be ‘necessary to the finding of probable cause”‘) (quoting Franks, 438 U.S. at 156). “Omitted information that is potentially relevant but not dispositive [of probable cause] is not enough to warrant a Franks hearing.” Id.