Deliberately omitting material evidence from search warrant affidavit means no good faith

Stephen J. Atherton won in State v. Gohring, No. 108,498 (Kan. App. May 31, 2013), affirming Judge Wheeler's suppression order in a Lyon County drug prosecution.  The district court suppressed evidence after it found that officers had deliberately omitted material evidence from the affidavit is support of a search warrant.  The COA reviewed the fact-intensive case and determined that evidence supported Judge Wheeler's finding.  The COA also upheld Judge Wheeler's finding that the omissions were material:

Here, the judge who invalidated the search warrant in granting Gohring's motion to suppress is the same judge who issued the search warrant in the first place. On the record, the judge stated that he would have discounted most of the information from Adams if the omitted information—specifically that Adams was recently released from prison, that he said he would do whatever it took to stay out of jail, and that he was drunk during many of the crimes and had no real information to provide—had been included in the affidavit. Thus, the district court found the omissions material and concluded that it would not have issued the warrant if it had had the information. Here, Davis' own testimony is an admission that there was no information in the affidavit to establish that Adams was a reliable source, which is required when the informant is a participant in the crime. Davis testified that he verified with other officers that Gohring was the boyfriend of a woman who lives at the address listed in the search warrant and included that information in the affidavit. But Davis admitted he never saw Gohring at the address and made no attempt to determine whether any of the stolen property was at the address.

Finally, the COA agreed that the good-faith exception could not apply because deliberately omitting material evidence is the same as misleading a judge with false information.  As a result, the COA affirmed the suppression order.

[Update: the state filed a PR on June 28, 2013.]

[Further update: the KSC denied the state's PR and the mandate issued on October 29, 2013.]