D.N.H.: Omission of information on credibility of informant did not affect PC determination

Court is troubled by officer’s omission of the named informant’s conviction for falsifying prescriptions but weighed against the detail of his report, the omission did not affect the probable cause determination. But, the court doesn’t like how it has to decide the case, so it chides the officer’s omission. United States v. Tanguay, 907 F. Supp. 2d 165 (D. N.H. 2012):

Because the application for the warrant to search Tanguay’s computer demonstrates probable cause that it contained child pornography, even when clarified by the facts that Lieutenant Nolet intentionally or recklessly omitted, Tanguay’s motion to suppress the evidence allegedly found during that search must be denied. As a result of this ruling, Lieutenant Nolet’s intentional or reckless conduct in withholding Wiggin’s felony falsification conviction from the magistrate will go “unpunished” in the sense that it will have no effect on Tanguay’s prosecution here. The same can be said of her strained efforts to defend that decision through her affidavit to, and testimony before, this court.

But Franks simply does not authorize the use of the exclusionary rule as a deterrent for even intentional misstatements or omissions in a warrant application, unless it was those misstatements that created (or, in the case of omissions, preserved) probable cause. Indeed, prior to Franks, lower courts had held that “‘[t]he fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.'” 2 LaFave, supra, § 4.4(c), at 549-50 (quoting United States v. Carmichael, 489 F.2d 983, 989 (7th Cir. 1973) and citing additional cases). Franks has been criticized for the Court’s failure to “acknowledge[] the existence of this body of authority,” let alone “explain[] in some detail the reasons which justify a rejection of it,” id. at 550, and a case of this nature lends a measure of support to such criticism. But criticism is one thing, and controlling law is another.

Under that controlling law, the evidence seized through the search warrant cannot be excluded unless the facts that Lieutenant Nolet intentionally or recklessly omitted would have negated probable cause for the search. They would not have, so Tanguay’s motion to suppress must be DENIED.