Franks Omissions Clarified: Omission of a Named Cooperating Witness’s “Crime of Dishonesty” and Prior Deception Does Not Defeat Probable Cause When Detailed, Self-Inculpatory, and Corroborated Information Supports a Warrant

Introduction

In United States v. Francis, No. 24-1386 (1st Cir. Mar. 24, 2025), the First Circuit affirmed the denial of a motion to suppress evidence seized from a car under a warrant supported largely by a named cooperating witness’s post-arrest statements. The decision addresses two recurring Fourth Amendment issues: (1) what suffices to establish probable cause when a warrant relies on a cooperating witness (CW), and (2) when omissions in a warrant affidavit rise to the level of a Franks v. Delaware violation warranting suppression.

The panel (Judges Montecalvo, Lynch, and Kayatta; opinion by Judge Lynch) held that the affidavit established probable cause under the totality of the circumstances and that the agent’s omission of the CW’s prior conviction for falsifying physical evidence and certain police observations about the CW’s deception during earlier stops did not constitute intentional or reckless omissions under Franks. Even if included, the omitted information would not have vitiated probable cause.

Parties and posture:

Appellee: United States
Appellant: Michael Francis, a Gangster Disciples member on state parole, who pleaded guilty to possession with intent to distribute cocaine while reserving his right to appeal denial of suppression.
Procedural history: District of New Hampshire denied suppression after a Franks hearing; the First Circuit affirmed.

Summary of the Opinion

Probable cause: The court held the affidavit established probable cause to search Francis’s car. The CW was named; he made Mirandized, self-inculpatory statements; provided detailed drug-transaction information (sources, quantities, locations, vehicle description, firearm placement); and law enforcement corroborated multiple details (supplier’s arrest, vehicle, address, gang association, locations).
Franks omissions:
- No intentional or reckless omission: The agent’s failure to disclose the CW’s prior conviction for falsifying physical evidence and officers’ comments that the CW was deceptive at earlier stops did not amount to intentional or reckless omissions.
- No materiality: Even if the omitted facts were included, the affidavit would still demonstrate probable cause.
Corroboration of “innocent” details: The panel reiterated that corroboration of innocent details can support probable cause when considered in the totality.
Good-faith exception: Not reached; probable cause existed on the face of the affidavit.

Factual Background

The CW, arrested on warrants tied to two prior traffic stops yielding large quantities of drugs, admitted to possessing and intending to distribute those drugs. He identified his initial supplier (Ryan Call, a Gangster Disciples member), relayed Call’s arrest, and said Francis (also a member) replaced Call and supplied the CW with drugs thereafter. The CW described price, quantities, transaction locations near Francis’s residence, Francis’s vehicle (a newer white Honda Accord with distinctive rims and plates), and Francis’s habit of keeping a pistol between the driver’s seat and center console.

Law enforcement corroborated the CW’s details (Call’s membership and incarceration; Francis’s vehicle details and residence locale). On September 1, 2021, MPD surveilled Francis, seized his car pursuant to a warrant issued August 25, 2021, and found a kilogram of cocaine, two phones, $10,000 in cash, a holster, and a bandana. Francis was indicted, including under 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii).

The Franks issues focused on two omissions: (1) the CW’s prior state conviction for falsifying physical evidence—a felony often categorized as involving dishonesty—and (2) two officers’ notes in prior stop reports describing the CW as deceptive or untruthful at the scene.

Legal Framework and Standards

Probable cause: Exists where, under the totality of the circumstances, there is a fair probability that evidence of a crime will be found in the place to be searched; this is a practical, common-sense standard and “not a high bar.”
Deference to warrant: Affidavits are presumptively valid; absent reckless omission or intentional falsehood, reviewing courts defer to the magistrate’s determination.
Franks challenges based on omissions: The defendant must show by a preponderance (i) intentional or reckless omission designed to mislead, and (ii) materiality—if included, the affidavit would not establish probable cause.
Appellate review: Probable cause determinations are reviewed de novo as to legal sufficiency; credibility findings and factual determinations from a Franks hearing are reviewed for clear error with special deference.

Analysis

Precedents Cited and Their Role

Illinois v. Gates, 462 U.S. 213 (1983): Anchors the totality-of-the-circumstances approach. The panel relied on Gates to reaffirm that corroboration of seemingly innocent facts can bolster probable cause because accurate access to innocuous details suggests access to reliable information about criminal activity.
United States v. Tiem Trinh, 665 F.3d 1 (1st Cir. 2011): Provides the First Circuit’s framework for evaluating informant reliability—considering identity, accountability, detail, corroboration, and basis of knowledge. The court used Tiem Trinh to uphold probable cause given the CW’s identification, self-inculpation, detail, and corroboration.
United States v. Gifford, 727 F.3d 92 (1st Cir. 2013): Distinguished. Unlike in Gifford (where the affidavit lacked basis-of-knowledge and relationship context), the Francis affidavit contained rich, first-hand details and corroboration. The court also clarified that recklessness may be inferred only where omitted information is critical to probable cause—something not present here.
United States v. Tanguay, 787 F.3d 44 (1st Cir. 2015): Supplies the Franks omission standard (“designed to mislead” or made in reckless disregard) and confirms that negligent omissions—even of probative information—are insufficient. Also supports the conclusion that including a tipster’s conviction for dishonesty (there, uttering a false prescription) did not defeat probable cause.
United States v. Brown, 500 F.3d 48 (1st Cir. 2007) and United States v. Barnard, 299 F.3d 90 (1st Cir. 2002): Clarify that while a motive to curry favor is relevant, it is not dispositive; reliability may be established by known identity, accountability for falsehoods, detail, and corroboration—features present here.
United States v. Cortez, 108 F.4th 1 (1st Cir. 2024) and United States v. Sheehan, 70 F.4th 36 (1st Cir. 2023): Emphasize that probable cause is a “not a high bar,” reinforcing that the affidavit here met the standard.
United States v. Hicks, 575 F.3d 130 (1st Cir. 2009): Recites the “fair probability” formulation applied by the panel.
United States v. Tzannos, 460 F.3d 128 (1st Cir. 2006), United States v. Guzmán-Batista, 783 F.3d 930 (1st Cir. 2015), and United States v. Henderson, 463 F.3d 27 (1st Cir. 2006): Establish the deferential clear-error review for credibility findings from Franks hearings.
United States v. Ranney, 298 F.3d 74 (1st Cir. 2002): States that to prove reckless falsity, the affiant must have entertained serious doubts about the truth—an evidentiary showing not made here.
United States v. Rumney, 867 F.2d 714 (1st Cir. 1989): Indicates that a witness’s prior denials or self-protective behavior do not automatically undercut credibility once corroborating detail emerges—relevant to the officers’ notes of the CW’s roadside deception.
United States v. Colkley, 899 F.2d 297 (4th Cir. 1990): Cited for the “designed to mislead” standard in omission cases, adopted by the First Circuit in Tanguay.
United States v. Perez, 67 F.3d 1371 (9th Cir. 1995), rev’d en banc on other grounds, 116 F.3d 840 (9th Cir. 1997): Cited for the principle that corroboration of even innocent activity can support probable cause—consistent with Gates and Tiem Trinh.
United States v. Leon, 468 U.S. 897 (1984): The panel did not reach the good-faith exception because it found probable cause on the face of the affidavit; nevertheless, Leon framed the parties’ arguments.

Legal Reasoning

1) Probable Cause Was Shown Under the Totality of the Circumstances

The First Circuit emphasized a practical, common-sense evaluation. Key reliability factors were present:

Identification and accountability: The CW was named, not anonymous. Because he was known to police, he could be held responsible for lies—enhancing reliability.
Self-inculpation and context: The CW provided Mirandized, post-arrest admissions of his own drug crimes and detailed how Francis supplied drugs after the prior supplier’s arrest. Self-inculpatory statements generally carry indicia of reliability.
Firsthand, detailed descriptions: The CW offered specifics of quantities, pricing, transaction locations near Francis’s residence, the make/model/color and distinctive rims of Francis’s car, and even the location of a pistol inside the car.
Independent corroboration: Police corroborated the supplier’s incarceration, gang affiliation of both Call and Francis, vehicle description and plates, and the address location consistent with the reported transaction spots. While these are “innocent” details, corroboration of such details supports the inference that the informant has access to accurate information overall.

In short, the affidavit did not rest on untested rumor. It marshaled multiple, cross-reinforcing indicia of trustworthiness consistent with Gates and Tiem Trinh.

2) The Omitted Facts Did Not Amount to a Franks Violation

Francis argued that omitting the CW’s felony conviction for falsifying physical evidence (a “crime of dishonesty”) and police characterizations of the CW’s prior roadside deception was reckless. The court disagreed for two independent reasons.

First, intent/recklessness: The agent testified that (a) because the CW was named and not an anonymized FBI informant, he did not follow his usual practice of reciting a criminal history; (b) he viewed the CW as credible based on the circumstances and detail; and (c) generalized roadside “deception” is common and did not undercut the later Mirandized, self-inculpatory, detailed statements. The district court credited this testimony, and the First Circuit found nothing internally inconsistent or implausible. Negligent or debatable judgment does not equate to recklessness or an intent to mislead.

Second, materiality: Even if included, the omissions would not have eliminated probable cause. The affidavit’s strength—identity, self-inculpation, detail, and independent corroboration—persisted. The First Circuit’s decision in Tanguay is instructive: adding a tipster’s prior conviction for a dishonesty-type offense (uttering a false prescription) did not defeat probable cause there, and the same result follows here. The CW’s potential motive to curry favor was considered but not dispositive, per Brown and Barnard.

3) Corroboration of “Innocent” Details Counts

The panel reaffirmed that corroboration of seemingly innocuous facts (vehicle, address vicinity, associates’ arrest status) can legitimately bolster probable cause. Gates and Tiem Trinh teach that accurate knowledge of everyday details often signals reliable access to the larger picture, including criminal conduct.

4) Distinguishing Gifford

Gifford does not aid the defense. There, the affidavit failed to establish the informant’s basis of knowledge or the affiant’s relationship with the informant; here, by contrast, the CW’s firsthand knowledge, self-incrimination, naming, and corroboration made the affidavit “absolutely solid,” as the district court put it. Moreover, unlike in Gifford, the omitted facts were not “critical” to probable cause, so recklessness could not be inferred.

Impact

For Law Enforcement and Affiants

Named CWs versus anonymous informants: When a CW is identified by name and makes Mirandized, self-inculpatory, detailed statements that are corroborated, an affiant’s omission of the CW’s criminal history—including a “crime of dishonesty”—will not necessarily be deemed reckless or material under Franks.
Drafting practice: While including criminal history can be prudent, this decision underscores that the constitution does not require exhaustive impeachment material in a warrant affidavit. Focus on detailed, firsthand observation and independent corroboration.
Corroboration strategy: Do not discount corroboration of “innocent” details; such corroboration is legally meaningful in the probable-cause calculus.

For Defense Counsel

Franks burden remains steep: To prevail on an omissions theory, defense must marshal evidence that the affiant knew the omitted fact was significant and either designed the omission to mislead or recklessly disregarded that risk—and that inclusion would negate probable cause.
“Crime of dishonesty” is not dispositive: A CW’s dishonesty-type conviction, standing alone, will rarely carry materiality where other reliability factors (identity, self-inculpation, detail, corroboration) are strong.
Target “critical” omissions: Gifford remains a viable path where the omitted fact is central to the probable cause finding; otherwise, courts are unlikely to infer recklessness.

For Magistrate Judges and Trial Courts

Totality analysis affirmed: The First Circuit reinforces deference to magistrate determinations where affidavits demonstrate layered reliability, even if corroboration is of innocuous facts.
Credibility determinations: Appellate courts will afford substantial deference to district courts’ credibility findings in Franks hearings absent objective contradiction or internal implausibility.

Complex Concepts Simplified

Probable cause: Not proof beyond a reasonable doubt, not even a preponderance. It asks only whether there is a fair probability that evidence will be found in the place searched, considering the whole picture.
Franks hearing (omissions version): A defendant can challenge a warrant by showing the affiant intentionally or recklessly omitted facts designed to mislead the magistrate, and that including those facts would have defeated probable cause. Negligence is insufficient.
Cooperating witness versus confidential informant: A CW is typically a known person (often post-arrest) who provides information; a confidential informant is usually an anonymized source. Courts often treat named sources as more reliable because they can be held accountable for lies.
Corroboration of “innocent” facts: Police confirmation of neutral details (car make, address, associates’ arrest) can bolster reliability because it shows the source has accurate access to the subjects’ world, making the criminal allegations more plausible.
Standard of review: Appellate courts review probable cause determinations for legal sufficiency but defer to magistrates absent recklessness. They review Franks hearing credibility findings for clear error, giving special deference to the trial court’s witness assessments.
Leon good-faith exception: Even if a warrant lacks probable cause, evidence may still be admissible if officers reasonably relied on the warrant. The First Circuit did not reach Leon here because it found probable cause on the face of the affidavit.

Key Takeaways

A named, Mirandized, self-inculpatory, detailed account by a CW, corroborated by police—even if only on “innocent” points—can readily establish probable cause to search a vehicle.
Omitting a CW’s “crime of dishonesty” conviction and prior roadside “deception” observations did not constitute a reckless Franks omission and, even if included, would not have defeated probable cause.
Gifford remains a cautionary example: Recklessness may be inferred only when the omission is critical to probable cause. That was not the case here.
The First Circuit’s decision strengthens a pragmatic approach to warrant affidavits and maintains a high bar for suppression based on affidavit omissions.

Conclusion

United States v. Francis reinforces settled Fourth Amendment principles while providing a clear, practical application to a common scenario: warrants supported by a post-arrest cooperating witness. The court’s message is twofold. First, probable cause is a commonsense, low-threshold standard that can be satisfied by a named CW’s detailed, self-inculpatory account corroborated on neutral details. Second, Franks remains a narrow avenue; omissions must be intentional or reckless and material. A CW’s prior “crime of dishonesty” and earlier roadside deception, without more, are neither automatically disqualifying nor necessarily material when balanced against robust indicia of reliability. The ruling offers meaningful guidance to agents drafting affidavits, magistrates assessing warrants, and defense counsel evaluating the viability of Franks challenges in the First Circuit.