Whether Franks applies to material omissions, and whether probable cause is vitiated for a particular offense where the omitted information is exculpatory evidence related to that offense

QUESTIONS PRESENTED After Petitioner's criminal sexual misconduct conviction was reversed because of a Ginther hearing in which his counsel Becket Jones was founded guilty of ineffective assistance of counsel for not consulting with an expert in the field of suggestibility and false memory. Expert at hearing testified too victim was coerced to testify falsely at preliminary examination and | trial. . : . Expert testified “the mother stated one thing and the victim stated another, which mean both can’t be right”. Or did any statement go with initial police report from officer Veltman or from the doctor exam, or from Higby police report requesting for warrant. Federal District Court for Western Michigan imposed absolute immunity for all defendant and . dismissed Petitioner’s claims of Intentional Malicious Persecution by using Fabricated Evidence and reports, False Arrest, gathering other to collaborate with the fabricated police report, (Westfall, Gurhurst, CPS Lady) to receive probable cause. Petitioner relied on Buckley v Fitzsimmons 509 U.S. 259 (1993) and Cousin v Small 325 F.3d 627 : (5" Cir. 2003), both of which require a “functional approach” under which absolute immunity | applies to conduct that Is “intimately associated with the judicial phase of the criminal process” that includes “initiating a prosecution and in presenting the State’s.” Buckley 509 U.S. at 270 ‘ (quoting limber v Pachtman 424 U.S. 409, 430-31. Petitioner Nevertheless deemed the conduct to be “investigative” and not subject to absolute immunity without probable cause. Pursuant to Frank v Delaware 438 U.S. 154 (1978), the Fouth Amendment is violated where law enforcement intentionally or recklessly includes false | 4 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. Detective Higby and her collaborators violated Police Misconduct: Law and Litigation § 2:12 Duty to investigate. Cortez v McCauley 478 F.3d 1108 (10° Cir. 2007), Wilson v Morgan 477 F.3d 326, 67 Fed. R. Serv. 3d 283, 2007 FED App. 0050P (6 Cir. 2007), Kuehl v Burtis 173 F.3d 646 (8*" Cir. 1999), Searcey v Dean 139 S.Ct. 1291 203 L. Ed. 2d 414 (2019), Provience v City of Detroit 529 Fed. Appx. 661 (6"" Cir. 2013), stoot v. City of Everett 582 F.3d 910 (9"° Cir. 2009), Gardenhire v Schubert, 205 F.3d 303, 318, 2000 FED App. 0075P (6" Cir. 2013) and Spiegel v Cortese 196 F.3d 717 (7*" Cir. 1999). . The questions presented, “all of which are matters of first impression, are.” 1. Whether Franks applies to material omissions, and assuming 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. 2. Whether, Detective Higby had probable cause to request for arrest warrant after collecting all evidence or did Detective Higby fabricate her police report to bolster non. ts ; i existing evidence intended for use at the criminal preliminary exam, and at trial, to support her fabricated probable cause. 3. Does the absolute immunity that applies to prosecutors for conduct under the “functional approach” embraced in Malley v Briggs, 457 U.S. 335 (1986) extend to law enforcement officers : performing investigative conduct while requesting for arrest warrant for criminal charge. 4. Whether Detective Higby and prosecutor Stein violates Petitioner's Fourth A