N.O.Okla.: Defendant proved Franks violation for falsity and reckless disregard for the truth

Defendant succeeds in a Franks challenge to a search warrant for a grow operation. The officer said that defendant was recently moved to the property and the electric usage doubled. In fact, the defendant moved in after the doubling first occurred. Rewriting the affidavit to show the importance of the missing information, probable cause is completely undermined. United States v. Morgan, 2011 U.S. Dist. LEXIS 27694 (N.D. Okla. March 16, 2011): This example demonstrates that, with the omitted information included, the statement regarding the doubled electrical usage is wholly irrelevant and incapable of serving as evidence of Defendant's alleged illegal activity. The statement cannot corroborate Ray's statement because Defendant could not have been the cause of the increased electrical usage since he moved in two months after the increase occurred. Without the corroboration provided by the invalidated statement, probable cause to search 1525 East 45th Place is vitiated. The omitted statement is therefore material to the finding of probable cause under Stewart and Franks. . . . Similarly, this Court holds that because of the highly relevant nature of when Defendant moved into the home, the omission in this case was at least made in reckless disregard of the truth. Deputy Ramsey testified that he was, and remains, unaware of when Defendant moved into 1525 East 45th Place, and that he assumed the July 2009-July 2010 time frame for the purported doubling of electrical usage provided by his informant was relevant to Defendant. … Deputy Ramsey knew that the doubling of electrical usage was critical to the probable cause analysis, as he admitted that he would not have sought a search warrant without that information. … Nevertheless, Deputy Ramsey testified that he remained ignorant of Defendant's actual relocation date, despite the fact that he knew from Gordan Ray's testimony that Defendant had moved relatively recently. This Court finds that, under the circumstances described in the hearings, Deputy Ramsey proceeded with reckless disregard for the truth when he submitted a warrant affidavit omitting the date on which Defendant moved into the residence to be searched. The information was "clearly critical" under the standard set forth in Jacobs because a material element of the affidavit would have been undermined by its inclusion and probable cause would not have existed otherwise. Defendant has therefore proven by a preponderance of the evidence that the omission was made with reckless disregard to the truth. Furthermore, as previously discussed, such omission was material to the finding of probable cause. Therefore, Franks requires that the search warrant be voided and the fruits of the search excluded. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

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