“It is a violation of the Fourth Amendment for an arrest warrant affiant to ‘knowingly, or with reckless disregard for the truth,’ include false statements in the affidavit.” Id. (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). Similarly, it is a Fourth Amendment violation to “knowingly or recklessly omit from the affidavit information which, if included, would have vitiated probable cause.” Id. (citing Stewart v. Donges, 915 F.2d 572, 581-83 (10th Cir. 1990)). If an arrest warrant affidavit contains false statements, “the existence of probable cause is determined by setting aside the false information and reviewing the remaining contents of the affidavit.” Id. Where information has been omitted from an affidavit, we determine the existence of probable cause “‘by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have6We describe the district court’s findings as “implicit” because the district court granted summary judgment with little explanation, see supra n.1, stating that it granted the motions for the reasons set forth in defendants’ memoranda, which is not a part of the record on appeal. - 13 - given rise to probable cause for the warrant.’” Id. (quoting Stewart, 915 F.2d at 582 n.13).
Posted on: Mon, 29 Dec 2014 01:42:01 +0000
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