Is it a material omission or a misstatement to include information that might otherwise negate a finding of probable cause?

California, United States of America


The following excerpt is from People v. Cook, 134 Cal.Rptr. 484, 64 Cal.App.3d 354 (Cal. App. 1976):

4 '[T]he failure to include information which might otherwise negate a finding of probable cause' constitutes an omission which may be the equivalent of a misstatement. (Theodor v. Superior Court, supra, 8 Cal.3d at p. 96, n. 11, 104 Cal.Rptr. at p. 239, 501 P.2d at p. 247.) The instant case demonstrates the difficulty of distinguishing between an omission and a misstatement. The affiant's failure to include information concerning the prior warrantless search of defendant's residence--in which the prosecutor participated--is clearly a material omission. However, the possible failure of the affiant to identify this warrantless search as the source of other allegations contained in the affidavit could be construed as either a misstatement or an omission. The wisdom of equating an omission with a misstatement is thus apparent.

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