For a search warrant to be considered valid it must meet the requirements of the Fourth Amendment. That is, it must be issued "upon probable cause, supported by Oath or affirmation, and particularly describ[e] the place to be searched, and the persons or things to be seized." U.S.C.A. Const. Amend. IV. In order to determine the validity of a search warrant, the court looks to determine whether "the totality of the circumstances in the affidavit would provide a neutral magistrate 'a substantial basis for finding a fair probability that contraband or other evidence of a crime would be found.'" United States v. Hayden, 108 F.3d 341 (10th Cir. 1997) quoting United States v. McCarty, 82 F.3d 943 (10th Cir.1996)). If it does, the search warrant is presumptively valid.
Information Contained in Search Warrant Affidavit Must Be Truthful
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that material information contained in a warrant affidavit must be "truthful." This veracity requirement was derived from the Warrant Clause, which requires a showing of probable cause, supported by oath or affirmation, for the issuance of a warrant. Simply stated, "[W]hen the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing." Id. 438 U.S. at 164-65, 98 S.Ct. at 2680-81 (citations omitted). Therefore, a search warrant affidavit must include all material information including information which casts doubt on the existence of probable cause. United States v. Marin-Buitrago, 734 F.2d 889, 894 (2nd Cir.1984). Moreover, if an affiant intentionally or recklessly chooses to disregard important information or deliberately chooses to close her eyes to discovering such information, a search warrant cannot be sanctioned based on the warrant's facial validity. U.S. v. Morales, 568 F.Supp. 646, 650 (D.C.N.Y.,1983). Instead, the Fourth Amendment demands that a party be permitted to challenge a search warrant affidavit which is valid on its face when it contains deliberate or reckless omissions of fact that tend to mislead. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
Probable Cause is a Commonsense Test
Probable cause to arrest is a simple, commonsense test where an officer must show facts sufficient to lead a reasonable officer to believe that guilt is more than a possibility. The probabilities with which this test relies are not technical: "[T]hey are the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act." State v. Paszek, 50 Wis.2d 619, 625, 184 N.W.2d 836, 840 (1971), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). As such, when determining whether to issue a search warrant, a magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the search warrant affidavit, there is a fair probability that evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To do so, he/she must be made aware of any and all material facts. United States v. Marin-Buitrago, 734 F.2d 889, 894 (2nd Cir.1984). Moreover, it is the neutral issuing magistrate, and not the executing officer, who must determine whether probable cause exists. Marin-Buitrago, 734 F.2d at 894. In fact, an issuing magistrate even retains the power to vacate a warrant when he learns that the facts do not support it. U.S. v. Morales, 568 F.Supp. 646, 649 (D.C.N.Y.1983).
Statements Included in a Search Warrant Affidavit that Are Knowingly False or Asserted with Reckless Disregard for Their Truth Should Be Disregarded
When determining whether a particular warrant is supported by probable cause, a court should disregard material allegations included in the warrant affidavit which are tainted because they were either knowingly false or asserted with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 171-72, 98 S.Ct. 2674, 2676-77, 2684-85, 57 L.Ed.2d 667 (1978); DeLoach v. Bevers, 922 F.2d 618, 621-623 (10th Cir. 1990). Material facts and allegations include those which are material to the magistrate's determination of probable cause. Id
Statements Omitted Which Cast Doubt on Probable Cause Should be Considered
Similarly, when determining whether particular facts omitted from a warrant affidavit or from the issuing judge are material, a court should consider whether those facts would cast doubt on the existence of probable cause. DeLoach, 922 F.2d at 621-623; Marin-Buitrago, 734 F.2d at 895. That is, a court should consider whether the new information could reasonably have affected the judicial officer's decision had it been made known to him. If so, then the new information is material and the warrant may be invalid. Id. See also, U.S. v. Morales, 568 F.Supp. 646 (D.C.N.Y. 1983).
The Duty to Return to the Issuing Judge if Circumstances Change
Even after the issuance of a warrant but before its execution, a police officer has a duty to bring to the attention of the issuing magistrate any change of circumstances based upon additional or corrective information known to government agents, if the new information could have reasonably affected the judicial officer's decision had it been made known to him before issuance of the warrant. Morales, 568 F.Supp. at 649. Thus, when a definite and material change has occurred in the facts underlying the magistrate's determination of probable cause, it is the magistrate, not the executing officers, who must determine whether probable cause still exists and the magistrate must be made aware of any material new or correcting information. Marin-Buitrago at 894.
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