United States v. Calisto, Samuel J.
1988 WL 6864, 838 F.2d 711 (1988)
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Rule of Law:
A search warrant is not invalid under Franks v. Delaware despite an intentional omission in the supporting affidavit if the omission was not intended to deceive the magistrate about a material fact and the affidavit would still have provided probable cause had the omitted information been included.
Facts:
- An informant told Philadelphia Detective Vivino that Frank Aiello had given a suitcase containing methamphetamine to Samuel Calisto for safekeeping at Calisto's residence.
- To protect his informant's identity, Vivino relayed this information to Agent Dougherty of the Pennsylvania Crime Commission, asking Dougherty not to reveal Vivino as the source but assuring him the informant was reliable.
- To protect his agency's ongoing investigation, Dougherty relayed the tip to DEA Agent Gilbride, stating the source was reliable but not revealing the information came from another officer.
- At Dougherty's request to preserve anonymity, Gilbride told Pennsylvania State Trooper Weniger the information came from a 'confidential source' who had proven reliable in the past, implying the source was his own.
- Trooper Weniger, believing Gilbride's immediate source was the confidential informant, prepared an affidavit for a search warrant stating that Gilbride had received information from a reliable confidential source.
- Law enforcement officers executed the search warrant at Calisto's home and found a suitcase of methamphetamine and firearms in a bedroom.
- After being arrested and invoking his right to remain silent, Calisto was seated nearby as two officers had a conversation.
- One officer, noting both men's and women's clothing in the bedroom where the drugs were found, prompted a second officer to respond in a low voice, 'Well, then we'll have to get an arrest warrant for the daughter,' which Calisto overheard.
- Upon hearing the officers' exchange, Calisto immediately stated, 'Don’t lock my daughter up. She has nothing to do with that stuff. That’s mine. I’m the one you want.'
Procedural Posture:
- Samuel Calisto was charged in U.S. District Court with possession with intent to distribute methamphetamine and unlawful possession of firearms.
- Calisto filed a motion to suppress the physical evidence and his incriminating statements.
- The district court held a suppression hearing and denied the motion as to the drugs, guns, and the first incriminating statement.
- Following a bench trial, Calisto was convicted on all counts.
- Calisto, as the appellant, appealed the judgment of the district court to the U.S. Court of Appeals for the Third Circuit, arguing that the denial of his motion to suppress was an error.
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Issue:
Does an intentional omission of the full chain of police informants from a search warrant affidavit invalidate the warrant under Franks v. Delaware when the omission was not intended to deceive the magistrate about a material fact and the affidavit would have established probable cause even if the omitted information were included?
Opinions:
Majority - Stapleton, J.
No. A search warrant is not invalid when the misleading aspect of an affidavit is an omission of non-material facts and the warrant would have been properly issued if the omitted information had been supplied. The court found that while the affidavit was intentionally misleading about the chain of information—suggesting DEA Agent Gilbride got the tip directly from the original informant rather than third-hand through two other officers—it did not mislead the magistrate about the material facts. The affidavit accurately portrayed the original informant's existence and reliability. The court reasoned that because probable cause would have existed even if the full chain of law enforcement relays had been disclosed, there was no causal connection between the deception and the search. The court also held that Calisto's incriminating statement was not the product of custodial interrogation under Rhode Island v. Innis. The officer's remark about arresting the daughter was not directed at Calisto, was a single, offhand comment made in a low voice, and was not reasonably likely to elicit an incriminating response.
Analysis:
This case refines the application of Franks v. Delaware by introducing a materiality and causation analysis for omissions in a search warrant affidavit. It establishes that not every intentional deception by law enforcement will invalidate a warrant. The key inquiry is whether the deception misled the magistrate about a fact essential to the probable cause determination. This decision gives law enforcement some leeway in protecting sources or investigations, as long as the core facts supporting probable cause are accurately represented and the warrant would have issued even with full disclosure.
