Paul S. Osterman v. United States

There is a presumption of validity with respect to the affidavit supporting a search warrant. In Franks v. Delaware, 438 U.S. 154 (1978), this Court recognized that a defendant may overcome this presumption of validity “when the defendant shows by a preponderance of the evidence that (1) the affidavit in support of the warrant contains false statements or misleading omissions, (2) the false statements or omissions were made deliberately or with reckless disregard for the truth, and (3) probable cause would not have existed without the false statements and/or omissions.” United States v. Williams, 718 F.3d 644, 647-48 (7th Cir. 2013) (citing Franks, 438 U.S. at 155- 56). In evaluating whether probable cause would have existed without the false statements and/or omissions, the court “eliminate[s] the alleged false statements,” Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012), and adds in the evidence that had been omitted, Rainsberger v. Benner, 913 F.3d 640, 643 (7th Cir. 2019). The court then determines whether the resulting “hypothetical affidavit” or “corrected affidavit” sets forth probable cause. Id. But there is a circuit split on whether the “hypothetical affidavit” should be supplemented with only the allegedly omitted exculpatory facts or, instead, should be supplemented with allegedly omitted exculpatory facts and any additional inculpatory facts or context that the affiant was aware of but did not include in the original affidavit. 1. In the context of a Franks challenge, when evaluating whether an alleged omission was necessary to a finding of probable cause, may a