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CA3: Made-up conclusion in affidavit for search warrant was material and not in good faith

By John Wesley Hall, Jr.

A made-up conclusion in a search warrant affidavit was material, and false under Franks, and obviously not in good faith, and Herring required exclusion. United States v. Brown, 2011 U.S. App. LEXIS 1059 (3d Cir. January 20, 2011): As we see it, the major flaw identified by the District Court is not negligence in reviewing the evidence but rather Smith’s conclusion “that non-existent evidence actually existed, and, more importantly, [his decision to take] the affirmative step of purposely incorporating the non-existent evidence into the affidavit.” 647 F. Supp 2d at 513. The existence of contradictory evidence highlighted the problem with Smith’s affidavit, but (according to the District Court) Smith’s reckless disregard for the truth occurred when he made up Paragraph 7(c) out of whole cloth...continue to full post

Full post as published by Fourth Amendment on January 23, 2011 (boomark / email).