C. The Search Warrant for Tutt’s House Contained Material Omissions, Which Rose to the Level of Reckless Indifference to the Truth
General Rules. The Fourth Amendment offers the strictest protection for a person’s home. See Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”) (internal quotation marks omitted). To search a home, officers must have a warrant based on probable cause, and whenever “the Fourth Amendment demands a factual showing sufficient to comprise probable cause, the obvious assumption is that there will be a truthful showing.” Franks v. Delaware, 438 U.S. 154, 164-65 (1978) (internal quotations and citation omitted) (emphasis in original). Understandably, “[t]his does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.” Id. at 165. But the reason for requiring the officers to “set forth the particular, truthful facts in a warrant affidavit is to allow the magistrate to make an independent evaluation of the matter.” Id. And this duty “extends to providing facts concerning the reliability of the information and the credibility of its source and to avoiding ‘deliberately or reckless[ly] false statement[s].’” Winfrey v. San Jacinto Cnty, No. 11-20555, 2012 WL 3062159, *8 (5th Cir. July 27, 2012) (slip op.) (unpublished) (quoting Franks, 438 U.S. at 165).
“A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citing United States v. Guerrero–Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). A motion to suppress should be granted “where a Fourth Amendment violation has been substantial and deliberate.” United States v. Symmank, 397 F. App’x 991, 993-94 (5th Cir. 2010) (quoting Franks v. Delaware, 438 U.S. 154, 156–57 (1978)). An exception to the general exclusionary rule is that “evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is admissible, even though the affidavit on which the warrant was based was insufficient to establish probable cause.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
“To bar the application of the good-faith exception based on an affiant’s intentional falsity or reckless disregard for the truth, a defendant must establish the falsity or reckless disregard by a preponderance of the evidence.” United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002) (citing Franks v. Delaware, 438 U.S. 154, 156-57 (1978)); see also Symmank, 397 F. App’x at 993-94
(“[T]he good faith exception is inapplicable if, for instance, the issuing judge was misled by information in an affidavit that the affiant knew or should have known was false except for his reckless disregard of the truth.”).
Although affidavits underlying a warrant carry a presumption of validity, defendants can challenge them in a Franks hearing. See Franks, 438 U.S. at 171. To establish the need for a Franks evidentiary hearing, the defendant’s “attack must [include] allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Id. at 155–56 (noting that innocent or negligent errors in the presented affidavit are insufficient). Courts consider the following factors when determining whether the error was intentionally made or merely due to innocent or negligent conduct:
the materiality of the misrepresentation, whether exigency or haste preceded the affidavit, the officer’s level of training and experience, whether the officer consulted with an attorney, and whether the officer disclosed the fact underlying any conclusory statements in the affidavit.
United States v. Abdullah, 2007 WL 4334106, at *2 (S.D. Tex. Dec.7, 2007) (citing United States v. Gallegos, 239 Fed. Appx. 890, at 895 (5th Cir. 2007); United States v. Alvarez, 127 F.3d 372, 375 (5th Cir. 1997); United States v. Namer, 680 F.2d 1088, 1094 (5th Cir.1982)). “[A] fact-finder may infer reckless disregard from circumstances evincing `obvious reasons to doubt the veracity’ of the allegations.” DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990); United States v. Tomblin, 46 F.3d 1369, 1376 (5th Cir. 1995) (noting that a reckless disregard for the truth exists when reasons to doubt the veracity of the information are obvious). Winfrey v. San Jacinto County. The warrant requirement of the Fourth Amendment mandates that the affidavit “set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Franks, 438 U.S. at 164–65.