This one has me a little stumped:

Defendant has made a motion for a Franks hearing to contest the validity of a search warrant, suggesting that the affiant officer has made materially false representations in the affidavit. I am willing to conceed that defendant has made the necessary showings to get us to a hearing.

Here is the issue. Affidavit asserts that the affiant officer "observed an established and credible confidential informant purchase crack cocaine from the suspect." Affiant says that he observed this on two different dates.

No other facts are alleged. Pretty bare bones but I think it is all right...the problem is:

The offense report says that the officer set up the buys...searched informant, gave him money, wired the informant...saw him go into the crack house...searched informant afterwards...took possession of the crack...took statement from the informant.

The second incident is identical.

The long and short of this is that my officer has abbrevated the two transactions signficantly and to a point where the question is: Does "I observed a sale" mean the same thing as "I set a sale up and observed everything other than the actual hand to hand transaction." Is this descrepency equate to a knowing false statement???

Is this worth a fight because with out this part of the affidavit...I have nothing but a dismissal...any thoughts on this would be much appreciated...Fred in Hempstead

It seems like the Franks claim is that the officer left out MORE facts showing PC. That sounds like a poor complaint.

First, this isn't the kind of mistake that Franks gets at. The kind of culpable mental state that Franks requires is an intent to deceive the magistrate who issued the warrant. Janecka v. State, 937 S.W.2d 456, 463 (Tex. Crim. App. 1996) (per curiam); Darby v. State, 145 S.W.3d 714, 722 (Tex.App. -- Fort Worth 2004, pet. ref�d) (agreeing with Fifth Circuit and Texas appeals courts who have held that �when a defendant seeks to suppress evidence lawfully obtained by a warrant, based on an alleged omission in the affidavit supporting the warrant, he must establish by a preponderance of the evidence that the omission was made knowingly, intentionally, or with reckless disregard for the truth in an attempt to mislead the magistrate�)

An officer�s failure to properly express himself in the affidavit is not a basis for relief under Franks. See, e.g., United States v. Pennington, 287 F.3d 739, 743 (8th Cir. 2002) (in light of officer�s testimony that his definition of �residence� included box trailer, there was nothing false in affidavit�s statement that officer saw informant leave residence); Ramsey, 545 S.E.2d at 857; see also Hinjosa v. State, 4 S.W.3d 240, 247-48 (Tex. Crim. App. 1999) (mistakes in affidavit about HOW probable cause was obtained at most establish negligence) (emphasis added); McClellan, 165 F.3d at 545.

Second, even if the officer messed up, the proper response from the courts should be to ADD the omitted facts and then ask whether PC is defeated.

"the reviewing court must determine whether the omitted material, if added to the affidavit, would have defeated probable cause, and (2) the reviewing court must find that the omission resulted from intentional or reckless police conduct that amounts to deception."
Pilieci v. State, --- So.2d ----, 2008 WL 942042 at *8 (Fla.App. 2 Dist. April 9, 2008) (quoting Johnson v. State, 660 So.2d 648, 655-56 (Fla. 1995)).

The addition of even more facts showing PC could never help your defendant.

Finally, there might be some question about whether Texas even allows Franks claims based upon omissions. Massey v. State, 933 S.W.2d 141, 145 n.3 (Tex. Crim. App. 1996); see also Wayne LaFave et al., 2 Criminal Procedure � 3.4(c) at 128 n.45 (2d ed 1999) (noting that extension of Franks to omissions requires �special care�). That's probably a weak argument.

David...thanks for taking the time to clue me into a few things I had not thought of. I am working my way through cases you cite and I think they will be very helpful.

When the defense lawyer got wind of the fact that I was not going to role over on this one he immediately filed a Motion to Disclose Confidential Informant Identity. He has alleged that without that information he will not have the opportunity to establish the fact that the police officer "lied" on the affidavit. He alleges that because the affidavit and the offense report contridict each other then "...the officer is facing potential criminal liablity either for perjery or for tampering with a government decument." How is that for a scare tactic???

I guess the argument is that the defense feels that in any case where the officer receives information from a CI, then the identity must be reveiled when there is an allegation that the officer is not being truthful on an affidavit.

Don't seem right to me....but I sure appreciate your help..

Fred Edwards, Hempstead, Texas

First, defendants haven't had much luck in trying to invoke Franks to thwart TEX. R. EVID. 508. Washington v. State, No. 05-95-01121-CR, 1997 WL 83790 at *5 (Tex.App. -- Dallas February 28, 1997) ("Other Texas courts have rejected this argument. See, e.g., Ashorn, 802 S.W.2d at 891-92; Lopez, 760 S.W.2d at 773; Thompson v. State, 741 S.W.2d 229, 231 (Tex.App.-Fort Worth 1987), pet. ref'd, 763 S.W.2d 430 (Tex.Crim.App.1989). In Thompson, the Fort Worth Court of Appeals reasoned that if it accepted appellant's argument �the identity of the informant would necessarily have to be disclosed in every case.� Id. at 231. Instead, each court applied rule 508(c)(3) as written. Those courts refused to reverse the trial courts' decisions not to reveal the informants' identities because those appellate records contained no evidence indicating that the police officers, at the time they prepared their affidavits, did not believe the informants to be reliable and credible. See Ashorn, 802 S.W.2d at 892; Lopez, 760 S.W.2d at 774; Thompson, 760 S.W.2d at 231."). Admittedly, those cases were about claims that the C.I. lied.

Second, if the officer admits that his affidavit failed to include more facts, then the C.I. wouldn't seem to be able to add anything. You should look at Judge Cochran�s Rules of Evidence Handbook. Your defendant�s claim looks like a prohibited "fishing expedition" to me. See Cochran's Texas Rules of Evidence Handbook at 476 (5th ed. 2003) (citing Pickel v. United States, 746 F.2d 176, 181 (3d Cir. 1984))

[This message was edited by david curl on 05-07-08 at .]

I think David nailed this.
I recently wrote a brief addressing Franks. I'd be happy to send it along if you're interested in it.
It's still pending the COA, but the cases might be helpful.

RK...please send it f.edwards@wallercotx.com thanks in advance