Ever hear of the "corrected affidavit" doctrine in search warrant cases?

This is an interesting case about qualified immunity and the Fourth Amendment. You can't sue police officers for executing a search warrant that was approved by a neutral magistrate, who only sign off on them if there's probable cause. But you can sue the police if they knowingly gave the magistrate false information to get the warrant in the first place. In this case, the officers gave the magistrate false information, and the plaintiff wins the appeal and the case is remanded.

The case is Sanseverino v. Chrostowski, a summary order decided on September 11. The following evidence summary tells us that plaintiff gets off to a good start in pursuing the lawsuit:

Plaintiff has raised a genuine issue of fact regarding whether Officers Michael Farrell and Joseph Lopa intentionally or recklessly made misstatements and falsehoods in the warrant affidavit. The affidavits of Omar Sanchez (“Sanchez”) call into question the incriminating statements he allegedly made regarding Anthony Sanseverino, including Sanchez’s identification in the photo array of Sanseverino as the man who had given him marijuana. Additionally, Antonio Sanseverino’s affidavit, based on his personal knowledge and experience, creates a dispute of fact regarding whether officers observed Sanchez “walk up the driveway” of Plaintiff’s residence at 72 Smalley Street or whether the driveway and the entrance were obscured.

The Court of Appeals says that "Issues of fact regarding alleged falsehoods or omissions in a warrant affidavit will defeat law enforcement officers’ qualified immunity defense on summary judgment only if the alleged falsehoods and omissions are material to a finding of probable cause." Under the "corrected affidavit doctrine," if “after crossing out any allegedly false information and supplying any omitted facts, the ‘corrected affidavit’ would have supported a finding of probable cause, then defendants are entitled to qualified immunity." Municipal defense lawyers will certainly use the "corrected affidavit" doctrine in seeking dismissal of the case. But it does not work for the defendants in this case.

The district court granted the officers summary judgment on the false warrant claim, but the Court of Appeals (Calabresi, Livingston and Chin) reverses, and the claim is revived. Even if we "correct" the affidavit by taking out the falsehoods, the jury can still find for the plaintiff. The rest of the affidavit cites the tip from a confidential informant that plaintiff was selling drugs, and others confidentially said that he was doing so from his home. Plaintiff's criminal history and past drug arrests and convictions are also in the affidavit. In light of this information, this is all a close call. Sending the case to the jury, the Second Circuit concludes,

it is a very close question whether the corrected affidavit as a whole establishes probable cause, and the result would ultimately depend on how a magistrate weighed the information. We cannot therefore conclude, as a matter of law, that the alleged falsehoods in the affidavit were immaterial to establishing probable cause, and the district court erred in granting summary judgment on the Officers’ qualified immunity defense.