Whether Franks applies to material omissions and whether probable cause is vitiated and the entire affidavit and search warrant are invalid if omitted exculpatory evidence negates probable cause for a class of offenses

QUESTIONS PRESENTED Pursuant to Franks v. Delaware, 488 U.S. 154 (1978), the Fourth Amendment is violated where law enforcement intentionally or recklessly includes false information or misrepresentations in an affidavit for a search warrant and probable cause is vitiated when the false information or misrepresentations are excised from the affidavit. This Court, however, did not specifically address whether Franks applies to evidence that is material to probable cause which is recklessly or intentionally omitted from a search warrant affidavit. The questions presented, all of which are matters of first impression, are: 1. Whether Franks applies to material omissions, and assuming arguendo that the customary practice of lower courts that apply that rule is correct: a. Whether probable cause is vitiated for a particular offense where the omitted information is exculpatory evidence related to that offense. b. Whether, after material omissions based on exculpatory evidence for one class of offenses are considered and probable cause is negated for that class of offenses, the entire affidavit and search warrant are invalid under Franks and suppression is warranted. ii QUESTIONS PRESENTED — Continued 2. Does the clear error standard of review apply to the question of whether evidence omitted from an affidavit for search warrant is material since that determination is based on a trial court’s factual findings, and whether an appellate court exceeds its authority when it applies de novo review instead. 3. Whether the government waives the issue of materiality when it concedes that information should have been included in a search warrant affidavit, and if so, does an appellate court violate the party presentation doctrine when its decision focuses entirely on an issue that has been waived.