91 Va. Cir. 326
Charlottesville Cir. Ct.2015Background
- On Oct. 22, 2014 a detective swore an affidavit alleging Source A made a cocaine purchase within 72 hours from 544 Cleveland Ave., Apt. B; affidavit relied solely on Source A and a field test of the substance.
- Source A was described as reliable based on 21 prior controlled buys and two prior arrests resulting from his tips; affidavit did not disclose other corroboration (surveillance, recordings, witnesses).
- The night before the warrant, Source A participated in a controlled buy; pre- and post-buy searches of his person and car occurred. Officers recovered the purchased substance and money, but also found three empty baggies (one with residue) in different car locations.
- Source A admitted to using cocaine and to having purchased drugs three days earlier outside police supervision; detectives learned of the baggies and admissions but did not include that information in the affidavit presented to the magistrate.
- Defendants moved to suppress items seized in the subsequent search (gun, drugs, money, scales) arguing the affidavit was misleading by omission as to Source A’s reliability, and thus lacked probable cause; the court held a Franks hearing and conducted evidentiary findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affidavit omitted material info about Source A that made it misleading | Omitted facts about Source A’s misconduct (possession of baggies, use, unauthorized buys) were material and would have undermined magistrate’s reliance | Omission was not intentional and was immaterial; magistrate still could rely on prior buys and field test | Court: omission was reckless (not intentionally deceitful) and material; affidavit was misleading |
| Whether omission constituted recklessness under Franks | Omission of adverse, contemporaneous facts about the same buy was reckless because detectives knew the info and it bore on credibility | Commonwealth argued detective need "know" omission would defeat probable cause and that prosecutor’s knowledge cured failure to inform magistrate | Court: recklessness shown — detective knew or should have known significance; reporting to prosecutor did not substitute for informing magistrate |
| Whether including omitted facts, the affidavit would still support probable cause | Plaintiff: with omitted facts included, Source A’s credibility collapses and no independent corroboration exists, so probable cause fails | Defendant/Commonwealth: prior controlled buys and field test suffice to support probable cause even allowing for omissions | Court: with omitted facts included, no probable cause — Source A was sole source and his credibility was destroyed |
| Remedy for misleading affidavit | Suppress evidence obtained under the warrant as fruit of unlawful search | Commonwealth contended suppression unnecessary because omission nonmaterial or other corroboration exists | Court: granted suppression; evidence excluded and Commonwealth may appeal or retry without suppressed items |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (affidavit omissions or false statements made intentionally or recklessly require a hearing and, if material, warrant suppression)
- Aguilar v. Texas, 378 U.S. 108 (1964) (informant-based affidavits must show underlying circumstances and basis for credibility)
- United States v. Colkley, 899 F.2d 297 (4th Cir. 1990) (apply totality of circumstances and test affidavit with omitted info to determine probable cause)
- Miller v. Prince George’s County, Md., 475 F.3d 621 (4th Cir. 2007) (discusses "reckless disregard" and awareness of probable falsity in Franks context)