Thompson v. State

Kyle Thompson v. State, No. 0198, September Term 2019. Opinion by Wells, J. SEARCHES AND SEIZURES – WARRANTS – FRANKS HEARINGS Appellant, Kyle Thompson, challenged the validity of a search warrant obtained for his home claiming that an investigating officer misled the issuing judge in obtaining the warrant. Police requested the warrant based on information they received from a confidential source that Thompson recently abused one daughter and was likely to abuse her again within days. After his arrest for child abuse and related charges, Thompson requested a Franks hearing to test the validity of the claims made by the investigating officer seeking the search warrant.

SEARCHES AND SEIZURES – WARRANTS – FRANKS HEARINGS – MANDATORY MOTIONS -- WAIVER The Court of Special Appeals held that Thompson’s request for a Franks hearing was not timely filed under Maryland Rule 4-252, it being a mandatory motion that must be filed “within 30 days of the entry of the appearance of a defendant’s first attorney. The later appearance of other counsel does not revive the 30–day period in which to file such a motion.” Allen v. State, 91 Md. App. 775, 780 (1992). Here, where Thompson’s first counsel did not request a Franks hearing within 30 days of the entry of appearance that delay acted as a waiver, even though subsequent counsel made a later request. SEARCHES AND SEIZURES – WARRANTS – FRANKS HEARINGS – MANDATORY MOTIONS -- WAIVER Subsequent counsel’s request for a Franks hearing based on a claim that discovery revealed the need to challenge the search warrant was not timely as Maryland Rule 4-252(b) requires that in such cases the request must be made within five days of acquiring the information in discovery.

Here, the request for a Franks hearing was made almost a month after this deadline. SEARCHES AND SEIZURES – WARRANTS – FRANKS HEARINGS – DEFENDANT’S BURDEN Despite our conclusion that Thompson waived his right to a Franks hearing, because the issues he presents are significant, we consider the merits of Thompson’s claims. The burden on the defendant in requesting a Franks hearing is “a substantial preliminary showing,” not a preponderance of evidence. The latter is the burden to be applied within the Franks hearing itself, where a defendant is permitted to go beyond the four corners of the warrant and cross-examine the affiant to prove he or she made a materially misleading statement or omission.

SEARCHES AND SEIZURES – WARRANTS – FRANKS HEARINGS – DEFENDANT’S BURDEN If considered, we conclude that Thompson did not meet his burden of preliminarily showing that the investigating officer misled the issuing judge by using intentional falsehoods or by statements that recklessly disregarded the truth. Further, we conclude that even if the challenged statements in the affidavit were excised, the court nonetheless had probable cause to issue the search warrant. SEARCHES AND SEIZURES – WARRANTS – PROBABLE CAUSE - SUFFICIENCY Our examination of the probable cause basis for the search warrant reveals that the information the confidential informant provided the police was reliable in that it could be corroborated by other competent evidence. Further, there was a sufficient nexus between the information obtained from the confidential informant and the house that was searched.

Circuit Court for Montgomery County Case No. 131547(Criminal) REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0198 September Term, 2019 _____________________________________ KYLE THOMPSON v. STATE OF MARYLAND _____________________________________ Leahy, Wells, Sharer, J. Frederick (Senior Judge, Specially Assigned) JJ. _____________________________________ Opinion by Wells, J. _____________________________________ Filed: April 7, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-09-09 11:36-04:00 Suzanne C. Johnson, Clerk Appellant, Kyle Thompson, appeals from the Circuit Court for Montgomery County’s denial of his motion for a Franks hearing and its denial of his challenge to the sufficiency of a search warrant. The court found Thompson had failed to make the required showing that the affiant-police officer made false statements that led a judge to find probable cause to issue a search warrant for Thompson’s house. Thompson’s appeal presents two questions for our review, which we reproduce verbatim: 1. Whether the court below erred when it denied Thompson’s request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), regarding the veracity of the affiant’s statements contained in the search warrant affidavit? 2.

Whether the court below erred when it denied Thompson’s challenge to the sufficiency of the March 17, 2017, search warrant for his residence? For the reasons discuss below, we answer each question in the negative and affirm the judgment of the circuit court. BACKGROUND A. Police Receive Information from a Confidential Informant and Prepare a Search Warrant Affidavit On the evening of March 16, 2017, the Special Victims Investigation Division of the Montgomery County Police, Maryland Police Department (“MCPD”) received a case involving the alleged sexual assault of a minor. The FBI emailed Sergeant Monique Tompkins (“Sgt.

Tompkins”) details of a conversation that the FBI had with a confidential informant (“C.I.”) on March 15.1 Those details alleged, among other things, that a few 1 The record indicates the C.I. was previously unknown to law enforcement. Although she asked that her name remain private, she provided police with her name, days prior Thompson showed the C.I. videos of him sexually assaulting his four-year-old daughter (“Child 1”)2. That evening, MCPD detectives made four phone calls to the C.I.: First, a thirty- two (32) minute, recorded phone call from the desk of Michelle Sears of Montgomery County Child Protection Services (“CPS”) (located in the same building as MCPD) joined by Detective Avelar (“Det. Avelar”) who is supervised by Sgt.

Tompkins; second, a five- minute unrecorded call from Sears’ desk to the C.I.; third, a seven-minute unrecorded phone call from the desk of Det. Avelar to the C.I.; and finally, another five-minute unrecorded phone call from Det. Avelar’s desk to the C.I. In discovery, a prosecutor admitted to the defense that while Sgt. Tompkins was not present for the first and main interview, she was present for at least one of the shorter, unrecorded phone calls placed from Det.

Avelar’s desk. Between the second and third phone call, Sears printed a 2015 CPS report that appeared to detail sexual assault allegations by Victim A (Child 1’s older half-sister) against Thompson. address, phone number, and employer. Thus, she is more aptly described as a “confidential” rather than “anonymous” source. 2 For clarity in reviewing this opinion alongside the record, we adopt the same pseudonyms used in the record: “Victim A” refers to the nine-year old daughter of Thompson’s ex-girlfriend, whom the warrant affidavit alleged Thompson sexually assaulted years prior; “Child 1” refers to Thompson’s four-year-old daughter, who is also the younger half-sister of Victim A. -2- Following these phone calls, Det. Avelar drafted an application for a search warrant and e-mailed it to Sgt.

Tompkins at 1:40AM on March 17, 2017. Part of the investigation summary provided: On March 16, 2017, the writer interviewed the anonymous source. *** The source further stated that Thompson had previously sexually abused [Child 1’s] older sister [Victim A] a few years back; [Victim A] was approximately 9 years old when he sexually abused her. The writer conducted a check with Child Protective Services and other police agencies and was able to corroborate the information given by the source regarding [Victim A]. The writer found a sexual abuse report from Baltimore County Police from October 2015.

The report stated [Victim A] was sexually abused by her mother’s boyfriend “Kyle.” [Victim A’s] mother lied to the Police and Child Protective Services of not knowing his full name and where about (sic). [Victim A] disclosed the abuse happened when her and her mother went to “Kyle’s house” located on Ballinger Terrace, Burtonsville, MD. Thompson stated the abuse[] happened in a wooded area near his [house] in Montgomery County, Maryland. The next day, March 17, 2017, while Det. Avelar went to Baltimore County to review forensic interviews of Victim A’s allegations, Sgt.

Tompkins was in the MCPD office revising the search warrant affidavit. Later that day, Sgt. Tompkins appeared before Judge Ronald Rubin with the revised search warrant application, now containing her signature rather than Det. Avelar’s.

The quoted part of the investigative summary, with revisions emphasized, now read as follows: On March 16, 2017, the writer interviewed the anonymous source. -3- *** The source further stated that Thompson had previously sexually abused [Child 1’s] older sister [Victim A] a few years prior. [Victim A] was approximately 9 years old when he sexually abused her. The writer conducted a check with Child Protective Services and other police agencies and could corroborate the information given by the source regarding [Victim A]. The writer found a sexual abuse report from Baltimore County Police from October 9, 2015. The report stated [Victim A] was sexually abused by her mother’s boyfriend “Kyle.” Anonymous source related that [Victim A’s] mother lied to the Police and Child Protective Services, relating that she did not know the suspect’s full name and whereabouts.

Anonymous source stated that [Victim A] disclosed that the abuse happened when her and her mother went to “Kyle’s house” located at 14215 Ballinger Terrace, Burtonsville, MD. Thompson stated to the anonymous source the above abuse happened in a wooded area near his house in Montgomery County, Maryland. (emphasis added). Notably, even this final affidavit signed by Sgt.

Tompkins read under the “OATH” section, “Detective Melvin Avelar, personally appeared before me…” Judge Rubin signed the search warrant. B. MCPD Obtains a Search Warrant, Seizes Evidence, and the State Charges Thompson With the search warrant in hand, the police searched Thompson’s home. The police recovered videos of sexual assaults as described by the C.I. On April 13, 2017 a grand jury for the Circuit Court of Montgomery County returned an indictment charging Thompson with 78 counts of sexual abuse of a minor and related sex offenses based primarily on the videos obtained in the search of Thompson’s home. -4- Thompson’s first attorney entered his line of appearance on April 17, 2017. On June 30, 2017, counsel filed a Motion to Suppress Evidence and a Motion to Suppress a Custodial Statement.

Thompson withdrew those motions without prejudice on January 11, 2018 and agreed with the State that unless the case was resolved via a plea agreement the State would consent to a hearing on those motions. On May 24, 2018, another attorney entered a line of appearance on behalf of Thompson, and on June 6, 2018 the court granted Thompson’s motion to strike his first attorney’s appearance. During this time, a parallel federal case commenced in the United States District Court for the District of Maryland. Thompson was represented by the same attorneys.

C. Thompson’s Request for a Franks Hearing is Denied On July 23, 2018, Thompson filed a request for a Franks hearing asserting that, based on information he had only recently learned in the federal case, Sgt. Tompkins intentionally misled the issuing judge in her affidavit. Thompson specifically grounded his claim on Sgt. Tompkins’ sworn statement that “the writer interviewed” the C.I. But Sgt.

Tompkins had not been present for the main phone interview Sears and Det. Avelar conducted with the C.I. The State filed its opposition on August 15, 2018. On September 24, 2018, the day before the circuit court held a hearing to consider the Franks motion, Thompson supplemented his reply brief with several draft affidavits from Det. Avelar and Sgt.

Tompkins as further proof that Sgt. Tompkins intentionally misled Judge Rubin. -5- At the hearing, discussion between the court and counsel focused on Sgt. Tompkins’ role in interviewing the C.I. and the accuracy of the phrasing “the writer interviewed,” rather than the affidavit revisions. No witnesses were called.

The court’s ruling was in two parts. First, the court ruled that Thompson’s request for a Franks hearing was waived under Maryland Rule 4-252, which required filing of mandatory motions such as a Franks request, within thirty (30) days of April 17th, 2017, the date Thompson’s first attorney appeared on Thompson’s behalf. The court noted that because Thompson’s first attorney timely filed motions to suppress evidence, including a custodial statement, and had authored an article on Franks hearings, his failure to request a Franks hearing could not have been an error. Second, the court also ruled on the merits.

It explained that based on its review of the evidence and case law, it found Thompson had not met his burden of showing that Sgt. Tompkins made false or reckless statements such that those statements established probable cause. The court addressed the heart of the argument in Thompson’s motion, saying, “I don’t think it’s improper or misleading or reckless to tell a reviewing court that you interviewed someone when you participated in sitting there listening and [passing] notes as the detective, Sergeant Tompkins did on call number 2.” The court did not address the draft revisions made by Sgt. Tompkins.

It concluded by denying the motion. On October 2, 2018, the circuit court also denied Thompson’s challenge to the sufficiency of the search warrant. The following day, Thompson entered a conditional -6- guilty plea before Judge McGann to ten counts of the indictment and preserved his right to appeal the orders denying his motions to suppress. On March 8, 2019, Judge McGann sentenced Thompson to three consecutive life terms plus 145 years, consecutive to his federal sentence of 5,040 months imposed after his conviction on 18 counts of production of child pornography.

Thompson then timely appealed the circuit court’s denials of his motion for a Franks hearing and his challenge to the sufficiency of the search warrant. DISCUSSION I. Waiver of Motion for a Franks Hearing Thompson asserts the circuit court erred in denying his motion for a Franks hearing. Thompson points out that although the court found his July 23, 2018 motion was not timely filed, it nonetheless considered and decided the merits of his request. In his initial brief, Thompson does not address waiver but reserved the right to respond in a reply brief.

No reply brief was filed. We do note Thompson argued before the circuit court that there was “good cause” to excuse the late filing of the motion, in that the defense did not become aware until June 29, 2018 through the parallel federal case that Sgt. Tompkins was not present for Det. Avelar’s first interview with the C.I. The State maintains that Thompson’s motion violated Maryland Rule 4-252, in that it was filed fourteen (14) months past the thirty (30) day deadline for filing a mandatory motion.

The State also disputes Thompson’s attempt below to show “good cause” for excusing the late filing. The State says the defense was provided with the “bulk of -7- discovery,” including the challenged affidavit and Det. Avelar’s notes on April 24, 2018, more than one year prior to Thompson’s filing of the motion for the Franks hearing. The State adds that Thompson was not provided with the draft affidavits until after he filed his Franks hearing motion, so those documents could have played no role in his decision to file the motion.

Finally, the State asserts that even if Thompson’s failure to file a motion was excused up until June 29, 2018, his July 23, 2018 motion for a Franks hearing still would have been untimely, since Rule 4-252(b) requires that when discovery provides the basis for a motion, the motion must be filed within five days after discovery is furnished. We agree with the State. Thompson’s motion for a Franks hearing was not timely filed. Rule 4-252(a)-(b), Motions in Circuit Court, provides: (a) Mandatory Motions.

In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: (1) A defect in the institution of the prosecution; (2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense; (3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; (4) An unlawfully obtained admission, statement, or confession; and (5) A request for joint or separate trial of defendants or offenses. (b) Time for Filing Mandatory Motions. A motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after the discovery is furnished. -8- First, Thompson has not disputed that his request for a Franks hearing is a mandatory motion. Second, Thompson filed the Franks request on July 23, 2018.

That date is well beyond thirty days of counsel’s entry of appearance or Thompson’s first appearance in court. As the circuit court correctly noted in its ruling, Maryland courts have held “the provisions of Rule 4–252(b) require a motion to suppress to be filed within 30 days of the entry of the appearance of a defendant’s first attorney. The later appearance of other counsel does not revive the 30–day period in which to file such a motion.” Allen v. State, 91 Md. App. 775, 780 (1992). Third, his motion also did not fall within five days of June 29, 2018, the latest date Thompson pointed to as having acquired new information in discovery preceding his filing of the motion.

See Rule 4-252(b). We conclude that Thompson did not meet these deadlines, and, thus, his request for a Franks hearing was not timely. Despite reaching this conclusion, considering the importance of the substantive issues and because the circuit court decided the merits of the motion, we exercise our discretion consistent with Rule 8-131(a) and review the circuit court’s ruling. Where, as here, the issues have been thoroughly briefed and argued, an analysis of the merits may guide trial courts and counsel in future Franks proceedings.

See Bradley v. Bradley, 208 Md. App. 249, 257-58 (2012) (concluding an issue was preserved where it was decided by the trial court) (citing Md. Rule 8-131(a)).

II

Merits of Thompson’s Motion for a Franks Hearing -9- A. Background on Franks Hearings It is useful to begin with a discussion of Franks hearings generally. The procedure was born out of Franks v. Delaware, 438 U.S. 154 (1978), where police sought a search warrant for the home of the defendant, Franks, on suspicion of his involvement in a sexual assault. Id. at 157 . In the search warrant affidavit, the affiant officer stated he had personal conversations with Franks’ coworkers that confirmed his normal dress matched the victim’s description of her assailant’s clothing.

Id. In their search of Franks’ home pursuant to the warrant, officers seized Franks’ clothing matching the victim’s description. Id. Prior to trial Franks moved to suppress the evidence on the ground that the warrant affidavit was inaccurate and asserted his coworkers “would testify that neither had been personally interviewed by the warrant affiants, and that, although they might have talked to another police officer, any information given by them to that officer was ‘somewhat different’ from what was recited in the affidavit.” Id. at 158 .

Franks further asserted the misstatements were included in the affidavit in “bad faith.” Id. The trial court sustained the State’s objection to Franks’ ability to challenge anything but the facial sufficiency of the affidavit and denied his motion to suppress. Id. at 158–60. The court admitted the evidence and Franks was convicted.

Id. at 160 . The Supreme Court of Delaware affirmed. The United States Supreme Court granted certiorari to address whether the trial court erred in refusing to consider Franks’ attack on the veracity of the statements in the affidavit. Id. at 160–61.

The Court reversed and remanded, holding a defendant should -10- have the ability to attack the veracity of an affiant’s statements, given that the Warrant Clause of the Fourth Amendment “takes the affiant’s good faith as its premise.” Id. at 164 . The Court explained the prerequisites for and nature of what would come to be known as a Franks hearing: To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.

Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. Id. at 171–72. The Court explained that if the defendant is granted the hearing, and the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 156 . -11- This Court first recognized the requirements for a Franks hearing in Yeagy v. State, 63 Md. App. 1, 8 (1985). Fitzgerald v. State, 153 Md. App. 601, 644 (2003), aff'd, 384 Md. 484 (2004) (“To challenge an omission under Franks [] the accused must make a preliminary showing that it was made intentionally or with reckless disregard for accuracy; a negligent or innocent mistake does not suffice.”) (quoting Yeagy, 63 Md. App. at 8 ). Our Court of Appeals aptly explained the procedure in McDonald v. State, 347 Md. 452 (1997): Franks v. Delaware set out a procedure, requiring a detailed proffer from the defense before the defendant is even entitled to a hearing to go behind the four corners of the warrant. Under Franks, when a defendant makes a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for a search warrant, and that the affidavit is insufficient to support a finding of probable cause, the defendant is entitled to a hearing on the matter.

The burden is on the defendant to establish knowing or reckless falsity by a preponderance of the evidence before the evidence is suppressed. Negligence or innocent mistake resulting in false statements in the affidavit is not sufficient to establish the defendant’s burden. Id. at 471 . This Court has also recognized the second prong of the pre-Franks hearing threshold: Even upon a substantial preliminary showing that the affiant intentionally or recklessly made false statements, the court must assess whether, if those statements were removed, the remainder of the affidavit would provide a substantial basis for finding probable cause.

State v. Jones, 103 Md. App. 548, 601 (1995) rev'd on other grounds, 343 Md. 448 (1996). In Jones we explained: -12- When an otherwise viable claim is made that tainted information has contributed to a finding of probable cause in support of a warrant and that a Franks hearing should, therefore, be held, the court must engage in a hypothetical probable cause measurement. If the allegedly tainted information is factored out, will the remaining untainted information constitute probable cause or not? If it will, the allegedly tainted information is mere surplusage and no Franks hearing is required.

Sometimes an appellate court, on review, must deal with this hypothetical assessment. It is no different, however, than any other appellate assessment of probable cause. In the ordinary context, the appellate court is asked, “Does x equal probable cause?” In the hypothetical Franks context, the appellate court is asked, “Does x minus y still equal probable cause?” The difference between the two questions is only mathematical, not doctrinal. Id. at 601, rev'd on other grounds, 343 Md. 448 (1996) (emphasis supplied).

In sum, there are two significant hurdles a defendant must clear before obtaining a Franks hearing. As Judge Moylan concluded in Fitzgerald, “a Franks hearing is a rare and extraordinary exception 1) that must be expressly requested and 2) that will not be indulged unless rigorous threshold requirements have been satisfied.” 153 Md. App. at 642 . B. Defendant’s Burden in a Motion for a Franks Hearing As a threshold matter, Thompson contends the circuit court applied the incorrect burden—a preponderance of evidence—in assessing his motion for a Franks hearing. Thompson focuses on the circuit court’s alternating references to “substantial preliminary showing” and “preponderance of evidence” in its ruling: THE COURT: And [in order for] the Court [] to grant a Franks hearing, the defense has to make a substantial preliminary showing of a false or reckless statement or omission.

They must further show that the -13- alleged false statement or omission was necessary to a finding of probable cause. … [T]he case of Fitzgerald v. State holds that a Franks hearing is a rare and extraordinary exception. It will not be indulged unless rigorous special requirements have been satisfied. The burden is on the defendant to establish knowing or reckless falsity by a preponderance of the evidence before the evidence will be suppressed. It’s only after the defendant makes this preliminary showing that he be entitled to a Franks hearing. 140, page 57 …I have to find that there’s a preliminary showing of false or reckless statement or omission in this case by Sergeant Tompkins.

I don’t find that there was a false or reckless statement or omission. … [S]o I factor all of that in but I don’t find there’s been a preliminary showing and I’ll therefore find that the defense has not met its burden of preponderance of the evidence to show false or reckless statement or omission. And that there was any statements or omissions or misstatements that there were necessary to a finding of the probable cause before Judge Rubin. I’ll therefore deny the motion for a Franks hearing. (emphasis added).

We concede it is not entirely clear whether the court believed Thompson had to make a substantial preliminary showing or to prove by a preponderance of evidence that Sgt. Tompkins included materially misleading statements in the affidavit. But given the court’s substantive basis for its holding—“I don’t think it’s improper or misleading or reckless to tell a reviewing court that you interviewed someone when you participated in sitting there listening and [passing] notes as the detective, Sergeant Tompkins did on call number 2”—it appears that the court would have found neither burden satisfied, particularly since it accepted as fact that Sgt. Tompkins did not participate in the main -14- interview with the C.I. Essentially, we conclude the court’s varying burden references are not dispositive of the burden or analysis the court applied.

In any event, we note for the sake of clarity that Thompson is correct. The burden on the defendant in requesting a Franks hearing is “a substantial preliminary showing,” not a preponderance of evidence. The latter is the burden to be applied within the Franks hearing itself, where a defendant is permitted to go beyond the four corners of the warrant and cross-examine the affiant to prove he or she made a materially misleading statement or omission.3 We now review Thompson’s main contention: that the circuit court erred in finding he had not made the required showing that Sgt. Tompkins intentionally included false statements in the search warrant affidavit.

C. Thompson’s Showing that Sgt. Tompkins Intentionally or Recklessly Included False Statements in the Affidavit We shall review the circuit court’s assessment of the evidence presented of Sgt. Tompkins’ intentional or reckless inclusion of misstatements in the affidavit for clear error. 3 In case of any doubt on this point, we look directly to Franks, where the “preponderance of evidence” standard is not mentioned until discussion of the hearing itself. 438 U.S. at 156 . Further, the heavier burden of a preponderance of evidence would not be appropriate, or perhaps even practical, to apply until the defendant is able to obtain and provide evidence beyond the four corners of the warrant, such as testimony of the affiant—which is not obtained until the Franks hearing.

We also cannot say what higher standard would reasonably then be required in the Franks hearing if the defendant had already proven by a preponderance of evidence that the affiant had been intentionally misleading. -15- See Braxton v. State, 123 Md. App. 599, 645 (1998) (applying a clearly erroneous standard to review the circuit court’s determination that a warrant affidavit was not tainted by police misrepresentation under Franks v. Delaware); Wilson v. State, 87 Md. App. 659, 668 (1991) (holding “the trial court was not clearly erroneous in finding that there was no basis for the suppression of the evidence.”). 1. Sgt. Tompkins’ Statement that “the writer interviewed” the C.I. The main reason Thompson requested the Franks hearing was Sgt. Tompkins’ statement in the affidavit, “the writer interviewed the anonymous source.” He argues the difference between this statement and the original narrative written by Det.

Avilar shows that Sgt. Tompkins knowingly misled the issuing judge into believing she personally interviewed the C.I. Thompson says this was a materially misleading statement, since “a reasonable magistrate may otherwise scrutinize whether second or third-hand information from a source has been reliably passed along.” He asserts Sgt. Tompkins knowingly made this misstatement given its likely impact on the issuing judge’s assessment, since she is “a reasonable police officer trained in the Fourth Amendment.” The State argues, assuming that the request for a Franks hearing was not waived, the court below properly ruled that Thompson failed to make the required preliminary showing. As for Thompson’s contention with regard to “the writer interviewed” statement, the State maintains this was not a deliberate falsehood: Sgt.

Tompkins had first-hand knowledge of everything the C.I. said in the interviews. The details of who was present -16- for an interview or who did the speaking have “no bearing on the veracity of the challenged statement . . . or the reliability of the information provided by the source.” We agree with the State and explain. To support his position, Thompson relies on a case from the Fifth Circuit, Bennett v. City of Grand Prairie, 883 F.2d 400, 407 (5th Cir. 1989), holding that “an affiant who merely relates the information of other officers ‘invites increased judicial scrutiny[] of the affidavit.’” Thompson maintains that the reason for this added scrutiny is that critical details can be misconstrued or lost when information is passed between persons. However, our Court rejected a defendant’s nearly identical contention in Hounshell v. State, 61 Md. App. 364 (1985).

There, the defendant argued before the trial court that the search warrant affidavit implied the affiant had personally interviewed all witnesses, when some of the witnesses had been interviewed by other officers. Id. at 379–80. The trial court denied the motion to suppress on grounds that “the fact that several witnesses were interviewed by police officers other than affiant . . . did not constitute a falsehood and did not affect the veracity of the affidavit in any way.” Id. at 180. This Court agreed.

Id. We find Hounshell’s reasoning more persuasive than Bennett. Although we certainly agree information can be misconstrued when passed between persons, and that the affiant’s ‘distance’ from the source in obtaining his information may affect its reliability, that concern is not manifest here. Thompson takes issue with the fact that Sgt.

Tompkins was not present for the main interview with the C.I. We observe that the C.I.’s -17- interview was recorded. In editing the affidavit, Sgt. Tompkins need not have relied exclusively on the relay of information from Detectives Avelar or Sears to summarize and analyze what had been discussed; she could listen to the C.I.’s interview herself. The circuit court also found that Sgt.

Tompkins had been present for a subsequent unrecorded interview and participated by passing notes and questions to Det. Avelar, who was speaking directly with the C.I. Although Thompson appears skeptical of this version of events because, in his opinion, the State’s account had varied and MCPD failed to memorialize Sgt. Tompkins’ participation in the interviews, the motions court listened to the arguments of counsel and was free to examine Sgt. Tompkins’ revisions side-by-side with Det.

Avelar’s original narrative and determine whether those revisions amounted to a substantial showing that she intentionally, or with reckless disregard, misled Judge Rubin in light of the totality of the circumstances. We note that at oral argument Thompson’s counsel suggested that perhaps a better procedure would have been for the motions court to have called Sgt. Thompkins and Det. Avelar as witnesses to assess their credibility first-hand.

We leave it to the sound discretion of the trial court how it determines whether a defendant has made the requisite substantial showing for a Franks hearing. We can easily envision a recommendation from this Court to call witnesses in such circumstances the equivalent of a Franks hearing in all but name, rather than a preliminary assessment of whether such a hearing is warranted. We leave that assessment to the sound discretion of the trial courts. -18- 2. Sgt.

Tompkins’ attributions to the C.I. Thompson asserts he also made an adequate showing that Sgt. Tompkins falsely attributed statements to the C.I. in order to help bolster the C.I.’s credibility. He focuses on Sgt. Tompkins’ statement that through a Baltimore County Police report she was able to corroborate the C.I.’s claims that Thompson abused Victim A “a few years ago” at Ballinger Terrace.

The police report, Thompson points out, did not contain the name “Kyle” (or “Kyle Thompson”), nor did it “establish[] a nexus to Ballinger Terrace.” Finally, Thompson claims the police report “has no corroborative value” since Sgt. Tompkins deliberately misattributed the corresponding statements to the C.I. The State contends Thompson provides no proof to substantiate these claims and ignores evidence that refutes them. The State maintains the C.I. did “disclose the precise address where Thompson lived, that Victim A was abused by Thompson in the woods while at his house, and that her mother knew that it was occurring and lied to investigators regarding her lack of knowledge about Thompson,” as evidenced by the recorded call transcript. The State also says that although Thompson’s name and address were not included in the Baltimore County Police report, they were in the CPS Report Disposition which is alluded to elsewhere in the affidavit.

The State says any misattribution of information to one report instead of the other was only negligence, since it would not have benefitted Sgt. Tompkins to cite the wrong report. -19- For the reasons that follow, we find no clear error in the circuit court’s ruling that Thompson failed to meet his burden, even in light of Sgt. Tompkins’ attribution of the challenged statements to the C.I. Our research yields only a few cases where Maryland courts have reviewed the denial of a Franks hearing, and even fewer that are capable of analogy here. First, we note Emory v. State, 101 Md. App. 585 (1994), where this Court affirmed the circuit court’s denial of a Franks hearing, finding the defendant failed to make a substantial preliminary showing that the affiant acted with reckless disregard for the truth.

Id. at 632 . In alleging the State’s recklessness, the defendant pointed to discrepancies