FL1: “to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the … judge … into signing the warrant”

The trial court erred in granting suppression based on a Franks motion because the defendant did not properly support his motion by showing intentional omissions designed to mislead the issuing magistrate. Extraneous or marginal information doesn’t need to be in a search warrant application, and leaving it out is not misleading. State v. Petroni, 123 So. 3d 62 (Fla. 1st DCA 2013):

Franks, however, did not concern omissions made to a judge in an attempt to influence the judge’s action; it was limited to deceptive falsehoods and misstatements. The Florida Supreme Court considered the “fundamentally … different problem” of omissions in affidavits in Johnson. As applied to omissions, defendants must show: (i) the omitted material, if added, would have eviscerated probable cause, and (ii) “intentional or reckless police conduct that amounts to deception.” Johnson, 660 So. 2d at 656. Absent a preliminary showing of both the deception prong and the materiality prong, the court should summarily deny a Franks motion. Id.

Omissions, the court points out, may be wholly reasonable, “in the sense that they exclude material [that] police in good faith believed to be marginal, extraneous, or cumulative. Such an exclusion is a valid and necessary part of the warrant process.” Id. Additionally, parties “reasonably may disagree as to the import and effect of the large amount of information that necessarily will be omitted in the warrant process, since police routinely collect far more information than goes into the affidavit.” Id. (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.4(b) (2d ed. 1987 & Supp. 1995)); see also id. (quoting with approval United States v. Colkley, 899 F.2d 297 (4th Cir. 1990)).

In short, to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the issuing judge or magistrate into signing the warrant; that is, an allegation the affiant had information she knew should be included in the affidavit and failed to include it either intentionally or recklessly with the idea the omission would then sway the issuing judge or magistrate in her favor. See id. at 655-56.

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As a determinative matter, Petroni did not show, allege, or argue the omissions or the false statement amounted to deceptive behavior on the part of the police intended to sway the judge. Johnson demands a showing of this misconduct—without it, the court is not even required to hold an evidentiary hearing. Johnson, 660 So. 2d at 656. Instead, the trial court focused on the materiality prong and how, with Petroni’s additions, there was a substantial possibility the issuing judge would not have found probable cause. Essentially, whether the officers intended any misconduct to sway the issuing judge was ignored. Petroni’s failure in this respect is fatal to his Franks claim.