PD-0712-20 10/21/2020
“Does intentionally misdescribing an untested confidential informant as an ‘anonymous source’ in a probable cause affidavit cause the informant’s uncorroborated incriminating information to be excised pursuant to Franks?”
In an affidavit for a search warrant for Diaz’s cell phones, the executing officer incorrectly referred to information as having been provided by an anonymous source when, in fact, the person was a confidential DEA informant (CI). Diaz moved to suppress, arguing that the magistrate could not have found probable cause. The trial court denied the motion. It concluded that the manner in which information is obtained from a CI is not material to probable cause if the information is essentially true.
Diaz appealed, complaining that the affidavit misrepresented the source of the information that led to the State’s investigation of Diaz. The intentional, knowing, or reckless misrepresentation of material facts constituted a violation of Franks v. Delaware. 438 U.S. 154 (1978). Further, under Franks, if the false statements are excised, the affidavit fails to establish probable cause. The court upheld the trial court’s ruling. It recognized that the officer who executed the affidavit had a legitimate explanation for the inaccurate anonymous-source identification. Though he had been a CI for the DEA, he could only get paid for the information through a Crime Stopper’s fund so, after first acting as a CI, he called in the information as an anonymous source. Next, it determined that, regardless of the source’s identity, the crucial information about Diaz and the crime were essentially true and independently corroborated.
The dissent faulted the majority for failing to address the distinction between a citizen informant and a CI. The former is considered inherently reliable, while the latter is not and therefore requires proof of a successful track record. The misrepresentation was reckless and material. Here, there was no evidence of the CI’s record and, contrary to the majority, evidence of later corroboration cannot cure the deficiencies in the original affidavit.
Diaz argues that the majority’s application of Janecka v. State, 937 S.W.dd 456 (Tex. Crim. App. 1996), is erroneous. Janecka held that mislabeling a known-citizen informant as unknown to obscure identity for the source’s safety is not the type of misrepresentation that violates the Fourth Amendment. Here, however, the misidentification added to the source’s credibility. Moreover, in Janecka, the purpose was safety, not to conceal fraud on Crime Stopper’s by failing to link the CI with the DEA. Finally, relying on the dissent, Diaz argues that subsequent corroboration does not cure the misrepresentation.
