Tuesday, April 28, 2015

Cop Leaving Out Exculpatory Statement in Affidavit Was Not A Franks Violation

Puller v. Baca, 2015 WL 1285283 (3/20/15) (Col.) (Published) - In a ยง 1983 case, the 10th finds probable cause and no Franks violation. There had been a series of assaults by a group of African-American gang members targeting, attacking and robbing intoxicated white men near closing time of downtown bars in Denver. A witness told police about one of these attacks where someone yelled "Get that white boy." A witness said that Mr. Puller was part of this group and accompanied the group to the home of a woman who had used the victim's credit card. In an affidavit seeking a warrant to arrest Mr. Puller for a race-based assault, the officer did not mention that when he asked one witness, who was a little tipsy at the time of the attack, whether Mr. Puller was involved in the fight, she responded: "no, his grandma would kill him." The 10th was uncertain why the officer omitted that statement, but "believed" the omission was at worst negligent. In any event, the statement was not an unequivocal denial of Mr. Puller's presence. And, in any event, even in light of the omitted information, there was enough for probable cause that Mr. Puller was part of the group that approached the victim. Approaching was enough to help intimidate the victim and shield the physical attackers from view. By approaching Mr. Puller was not merely present. He acted affirmatively.