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Click here for the full text of this decision FACTS:After the trial court denied appellant Barbara Davis’ motion to suppress illegally seized evidence, she pled guilty to possession of more than four but less than two hundred grams of a controlled substance and was sentenced to two years of deferred adjudication community supervision. She appealed. HOLDING:Reversed and remanded. The 2nd Court finds the trial judge should have granted Davis’ motion to suppress, due to 1. the search and arrest warrant’s lack of probable cause, based on the totality of the circumstances; and 2. the inclusion of statements in the warrant made with reckless disregard for the truth. The court notes that it is re-issuing its opinion in light of the Court of Criminal Appeals’ June 23 decision in Swearingen v. State, No. 110-03, which held that appellate courts should apply a deferential standard of review when reviewing the propriety of a search with a warrant (in contrast to the standard of review for a warrantless search). The court must look to the totality of the circumstances regarding the information contained in the affidavit, giving great deference to the magistrate’s determination regarding whether the affidavit reflects a “substantial basis” for concluding that a search would uncover evidence of a crime. However, the 2nd Court notes that its review is limited to the four corners of the affidavit to determine probably cause — whether there is a fair probability, not an actual showing, that contraband or evidence of a crime will be found in a particular place in light of the totality of the facts set forth in the affidavit. The officer’s affidavit must provide the magistrate with a substantial basis for concluding that a search would uncover evidence of wrongdoing. The informant’s reliability or basis of knowledge is relevant in determining the value of his assertions. Corroboration of the details of an informant’s tip through independent police investigation can also be relevant in the magistrate’s determination of probable cause. Likewise, the affidavit should set forth the foundation for the officer’s belief in an informant’s credibility and veracity. However, quoting Illinois v. Gates, 462 U.S. 213, 233 (1983), the 2nd Court notes that “a deficiency in one may be compensated . . . by a strong showing as to the other, or by some other indicia of reliability,” all of which are relevant considerations under the totality of the circumstances. In her motion to suppress, the court says Davis argued that Officer Wallace’s affidavit both failed 1. to state sufficient underlying facts to support the confidential informant’s veracity, reliability and basis of knowledge; and 2. to show sufficient independent investigation by the officer to corroborate many of the facts stated by the informant. The court examines several statements in the affidavit and finds the officer did not provide enough support for why he believed them to be true. “The affidavit does not contain any information that would tend to show that this informant’s information is reliable or that the officer undertook an independent investigation sufficiently thorough to compensate for the informant’s lack of history or reliability with this officer or department.” The affidavit also doesn’t state, notes the court, how the informant knew the occupants of the home to be searched and for long he’d known them, what his relationship to them was, and what the occupants’ correct middle names were. Thus, the 2nd Court finds the trial court abused its discretion in failing to grant the motion to suppress. The court then turns to the issue raised regarding the Franks suppression hearing argument. Under Franks v. Delaware, 438 U.S. 154 (1978), a court must void a search warrant affidavit and exclude any evidence obtained pursuant to it if a defendant can establish by a preponderance of the evidence that the affidavit contains a false statement made knowingly or intentionally or with reckless disregard for the truth. Then, setting the false material aside, she must also show that the affidavit’s remaining content is insufficient to establish probable cause. Franks, 483 U.S. at 155-156. The court states that Davis identifies several statements as false, which it finds are in fact either inaccurate or that the officer did not verify them. “This failure to verify shows that Officer Wallace could have known and should have known of the falsity of the information and that he failed to verify the information with reckless disregard for its truth or accuracy.” The court finds that, when the false statements are removed, there is nothing to support a finding of probable cause for the search and the arrest. The court thus finds that the trial court should have granted Davis’ motion to suppress due to the search and arrest warrant’s lack of probable cause and the fact that it contained statements made with reckless disregard for their truth. OPINION:Livingston, J.; Livingston, Dauphinot and Homan, JJ.

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