Franks v. Delaware – Material Omissions v. Misstatements? In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that a defendant may challenge the validity of a search warrant affidavit and is entitled to an evidentiary hearing if the veracity challenge is supported by a specific offer of proof. The challenge must allege a deliberate falsehood or a reckless disregard for the truth. If the allegations are proven, the warrant is to be examined for a finding of probable cause absent the false statements. Further, Franks noted that “police could not insulate one officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” In Hart v. O’Brien, the Fifth Circuit stated: “The Fourth Amendment places restrictions and qualifications on the actions of the government generally, not merely on affiants. A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.” 127 F.3d 424, 449 (5th Cir. 1997).
While Franks dealt with misstatements, under Fourth amendment law, material omissions are treated essentially similarly to claims of material misstatements. 22 Tex. Jur. 3d Criminal Procedure: Pretrial Proceedings § 330 (“Defendants may also challenge material omissions contained in probable cause affidavits. Where a violation occurs by omission of information, the reviewing court determines if the affidavit still establishes probable cause when the omitted information is included.”); Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990) (“The holding in Franks applies to omissions as well.”); United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980).
In Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990), the court held that the sufficiency of a warrant may be challenged where the affiant knowingly omits material facts from the warrant application. The same procedure as that outlined in Franks must be followed in order to secure an evidentiary hearing. If the omissions of material facts are proven by a preponderance of the evidence, the affidavit is to be examined as though the omitted facts had been included. Id. at 582, n.13. If the omitted information negates probable cause, or “casts doubt” on probable cause, the evidence may be suppressed. United States v. Ippolito, 774 F.2d 1482 (9th Cir. 1985); United States v. Dennis, 625 F.2d 782 (8th Cir. 1980). Once the material misrepresentations of fact are deleted or the material omissions of fact are added to the challenged affidavit, the probable cause analysis must follow the “totality of the circumstances test” set out in Illinois v. Gates, supra. Stewart v. Donges was a §1983 civil rights action where the Court held that failure to disclose in an affidavit that the main complainant had recanted his testimony “would be a reckless omission of a material fact in violation of plaintiff’s clearly established rights because the affidavit would not support probable cause if it were modified so as to include that exculpatory evidence.” 915 F.2d at 583.
In State v. Verde, 432 S.W.3d 475 (Tex. App. – Texarkana 2014, pet. ref’d), a theft of a trailer case, the Texarkana Court of Appeals found that a glaring material omission occurred which was “deliberate and reckless” when the detective omitted that the defendant purchased a stolen trailer eight years ago, that defendant identified the person from whom he bought the trailer, and that defendant showed the detective a bill of sale. The Court found that the adjusted affidavit did not established probable cause.
In Hale v. Fish, 899 F.2d 390, 400 (5th Cir.1990), an Aggravated Kidnapping case, the Fifth Circuit held that “recklessness” may be inferred from omission of facts themselves which are “clearly critical” to a finding of probable cause. Hale at 400. That court found an officer’s failure to mention “information garnered from a number of witnesses which tended to contradict [the officer’s] allegations” to fall into the “clearly critical” category. 899 F.2d at 400. In Hale, the officer withheld from his affidavit that actions taken by alleged kidnappers was done pursuant to an ongoing FBI investigation and that the victim was not being held against his will. Hale at 400. The Court found that the affidavit was insufficient to support a finding of probable cause. Hale at 400.
Some Texas appellate courts, including the Texas Court of Criminal Appeals, have assumed, but not decided, that Franks applies to omissions of fact contained within a probable cause affidavit. Gonzales v. State, 481 S.W.3d 300, 310 (Tex. App. – San Antonio 2015, no pet.) citing, Renteria v. State, 206 S.W.3d 689, 704 (Tex. Crim. App. 2006) (assuming application of Franks to omissions and concluding that even if the information omitted from the affidavit was included, sufficient probable cause existed to issue the search warrant). See also, Ward v. State, No. AP–74,695, 2007 WL 1492080, at **4, 2007 Tex.Crim.App. LEXIS 1835, at **10–11 (Tex. Crim. App. May 23, 2007) (mem. op., not designated for publication) (“Franks requires that the defendant be granted a hearing to present evidence on the issue of whether a misrepresentation was knowingly and falsely made in a probable cause affidavit and whether it was material to the establishment of probable cause, such that any evidence derived from that search warrant should be suppressed. Franks, 438 U.S. at 156. Martin purports to extend that same analysis to the omission of material facts. Martin, 615 F.2d at 328. If a defendant establishes by a preponderance of the evidence that in a probable cause affidavit, first, omissions of fact were made, and second, such omissions were made intentionally or with a reckless disregard for the truth, the warrant will be held invalid if the inclusion of the omitted facts would vitiate probable cause. Ibid. Here, even if the omission of material facts from an affidavit were sufficient to vitiate probable cause, the appellant has not met his burden of showing by a preponderance of the evidence that the omitted facts in this case were material in nature.”). See also, Hackleman v. State, 919 S.W.2d 440, 449 (Tex. App. – Austin 1996, pet. ref’d, untimely filed) (when it is demonstrated that relevant information was recklessly omitted from a warrant application, a defendant must further show the affidavit, if supplemented with the omitted information, would not be sufficient to support a finding of probable cause.).
See also the following Texas appellate courts which have applied the Franks analysis to material omissions: Gonzales v. State, 481 S.W.3d 300, 309–10 (Tex. App. – San Antonio 2015, no pet.); Dromgoole v. State, 470 S.W.3d 204, 216 (Tex. App. – Houston [1st Dist.] 2015, pet. ref’d); Williams v. State, 01-14-00165-CR, 2015 WL 1135715, at *6 (Tex. App. – Houston [1st Dist.] Mar. 12, 2015, pet. ref’d); State v. Verde, 432 S.W.3d 475, 483–84 (Tex. App.–Texarkana 2014, pet. ref’d); Lamarre v. State, No. 04–11–00618–CR, 2013 WL 781778, at *5 (Tex.App.–San Antonio Mar. 1, 2013, pet. ref’d) (not designated for publication); Lehi Barlow Jeffs v. State, No. 03–10–00272–CR, 2012 WL 601846, at **9–10, 2012 Tex.App. LEXIS 1487, at **26–27 (Tex.App.-Austin Feb. 24, 2012, pet. ref’d) (mem. op., not designated for publication); Emack v. State, 354 S.W.3d 828, 838–39 (Tex.App.–Austin 2011, no pet.) (assuming without deciding that Franks applies to omissions in an affidavit and holding that the appellant did not show the officer omitted material facts from the affidavit either deliberately or with a reckless disregard for the truth); Martin v. State, No. 2–08–128–CR, 2009 WL 2414294, 2009 Tex.App. LEXIS 6141 (Tex.App.-Fort Worth Aug. 6, 2009, no pet.) (mem. op., not designated for publication); Volk v. State, Nos. 01–07–00265–CR, 01–07–00266–CR, 01–07–00326–CR, 2008 WL 2854166, 2008 Tex.App. LEXIS 5574 (Tex.App.-Houston [1st Dist.] July 24, 2008, pet. ref’d) (mem. op., not designated for publication); Sandefer v. State, Nos. 12–04–00013–CR, 12–04–00014–CR, 12–04–00015–CR, 12–04–00016–CR, 2005 WL 1903314, 2005 Tex.App. LEXIS 6301 (Tex.App.-Tyler Aug. 10, 2005, no pet.) (mem. op., not designated for publication); Darby v. State, 145 S.W.3d 714, 722 (Tex.App.–Fort Worth 2004, pet. ref’d); Blake v. State, 125 S.W.3d 717, 723–24 (Tex.App.–Houston [1st Dist.] 2003, no pet.); Edwards v. State, 2000 WL 1048520 at **5 (Tex.App. — Dallas Jul 31, 2000) (NO. 05-98-00974-CR), pet. ref’d (Oct 25, 2000); Four Thousand One Hundred Eighty-Two Dollars in United States Currency v. State, 944 S.W.2d 24 (Tex.App. — Texarkana 1997); Perry v. State, 1994 WL 52499 at **2 (Tex.App. — Hous. [1 Dist.] 1994); Bernard v. State, 807 S.W.2d 359, 367 (Tex.App. — Hous. (14 Dist.) 1991 no pet.); Bosquez v. State, 792 S.W.2d 550, 551 (Tex.App.–El Paso 1990, pet. ref’d); Heitman v. State, 789 S.W.2d 607, 610 (Tex.App.–Dallas 1990, pet. ref d); Melton v. State, 750 S.W.2d 281, 284 (Tex.App.–Houston [14th Dist.] 1988, no pet.). Unpublished cases are not cited for precedential authority, but only to illustrate the historical usage of “material omissions” in the context of Franks analysis in Texas caselaw.