The opinion of the court was delivered by: Slomsky, J.
Before the Court is Defendant's Restated Motion Requesting A Franks Hearing (Doc. No. 67) and the Government's Response in Opposition to Defendant's Restated Motion Requesting A Franks Hearing (Doc. No. 58). The Court heard oral argument on the Motion at a hearing held on November 18, 2010. Upon consideration of the arguments presented by both parties in their respective briefs and at the hearing, and also the exhibits entered into evidence by both parties at the hearing,*fn1 the Court will deny Defendant's Restated Motion Requesting A Franks Hearing.
On June 5, 2009, a lone African-American gunman robbed the Lafayette Ambassador Bank in Easton, Pennsylvania. (Doc. No. 57 at 8.) Following an investigation, Detective Joseph Alonzo and other officers of the Easton Police Department prepared a Police Criminal Complaint (the "State Criminal Complaint"), which was supported by an Affidavit of Probable Cause sworn to by Detective Alonzo (the "Alonzo Affidavit"). The Alonzo Affidavit is attached hereto as Appendix A. (Id.) The State Criminal Complaint charged Defendant Markeith John Webb under Pennsylvania state law with robbery in violation of 18 Pa. C. S. § 3701(a)(1)(ii) and with aggravated assault in violation 18 Pa. C. S. § 2702(a)(1). (Id.) The Alonzo Affidavit contained the sworn statement of Detective Alonzo detailing what was discovered during the investigation of the robbery in order to show probable cause that Defendant committed this crime. (See generally Doc. No. 57, Exhibit ("Ex.") A at 21-23.) A Pennsylvania District Justice reviewed the affidavit and issued an arrest warrant. Defendant was arrested on or about June 15, 2009. (Id.)
On or about December 1, 2009, the state charges against Defendant were withdrawn and Defendant was indicted by a federal grand jury on the charge of armed bank robbery in violation of 18 U.S.C. § 2113(d). (Doc. No. 57 ¶ 9; Doc. No. 7.) On November 16, 2010, the grand jury returned a Superceding Indictment, which contains the bank robbery offense and a new Count charging Defendant with a violation of 18 U.S.C. § 924(c)(1). (Doc. No. 59.)
On September 1, 2010, without knowledge of his counsel, Defendant filed pro se a Motion Requesting A Franks hearing (Doc. No. 48). Defendant averred that, although the state charges were withdrawn, the Alonzo Affidavit contained false statements and this Affidavit formed the basis of testimony given to the federal grand jury by F.B.I. Agent Thomas Neeson.
Agent Neeson's testimony led to the issuance of the Indictment and Superceding Indictment.*fn2
On September 27, 2010, on behalf of Defendant, counsel filed the Restated Motion Requesting A Franks Hearing (the "Franks Motion"). On October 1, 2010, the Government filed a response in opposition. (Doc. No. 58.) As noted above, the Court heard oral argument on the Franks Motion at the hearing held on November 18, 2010.
A defendant is entitled to challenge the validity of a warrant where a defendant makes a "substantial preliminary showing" that (1) a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit and (2) the allegedly false statement is necessary for the finding of probable cause. See Franks v. Delaware 438 U.S. 154, 155-56 (1978). This standard applies to both search warrants and arrest warrants. See United States v. Carter, 756 F.2d 310, 313 (3d Cir. 1985). To determine when a "substantial preliminary showing" has been made, "the law requires some basic quantum of evidence to support a defendant's allegations about the falsity of an affidavit." United States v. Christopher, No. 08-23, 2009 WL 903764 at *4 (D. Virgin Islands Mar. 31, 2009). If the Court makes a finding in favor of a defendant then the Fourth Amendment requires that a hearing be held at the defendant's request. Franks, 438 U.S. at 156.
A Franks hearing may also be required upon a "substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading." United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir. 1988) (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985); see United States v. Yusuf, 461 F.3d 374, 383 (3rd Cir. 2006); see also Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000) (holding that Franks applies to material omissions of fact made intentionally or with a reckless disregard for the accuracy of the affidavit). Omissions are made with reckless disregard if the information omitted is the kind of information that a reasonable person would expect a judge to want to know. Russo, 212 F.3d at 788. Negligent or immaterial omissions will not invalidate a warrant. Id.
With respect to a prosecutor's presentation of evidence to a federal grand jury, a prosecutor is not obliged to present every known relevant fact. For example, there is no legal obligation for a prosecutor to present to a grand jury exculpatory evidence in his possession. See United States v. Williams, 504 U.S. 36, 52 (1992) (holding that an indictment may not be dismissed because the government failed to present exculpatory evidence to the grand jury).
If a court grants a Franks hearing and at the hearing, (1) a defendant establishes the allegation of perjury or reckless disregard by a preponderance of the evidence, and (2) with the affidavit's false material set to one side, the remaining content is insufficient to establish probable cause, then the warrant must be voided and the fruits of the search excluded to the same ...