informant. Rather, the Investigating Officers themselves observed the drug sales described in the affidavit and relayed the facts to Officer Gram-lich. Consequently, the Court will consider the observation of all of the Investigating Officers in its analysis. 3 . During the Hearing on this Motion, Defendant's counsel also argued that these omissions are in fact circumstantial evidence that the Arresting Officers did field test the bag found on the counter, discovered that the bag did not contain drugs, and intentionally left this information out of the Search Warrant Affidavit. (09/06/05 Tr. at 16-21.) Defendant’s argument is not based on evidence sufficient to support an inference of intentional or reckless falsity. See United States v. Castillo, 287 F.3d 21, 25-26 (1st Cir.2002)
holding a defendant is not entitled to a franks hearing without making a substantial preliminary showing that defect in the affidavit is material holding trial courts finding omission of information was not intentional or with reckless disregard for truth was not clearly erroneous holding that speculation as to whether and when the police had actually field tested a bag reported to contain heroin falls far short of the substantial preliminary showing of intentional or reckless omission required by the franks test holding that no intentional police misrepresentation occurred holding that when the petitioner establishes that the trial court failed to inform him of his constitutional rights and that he would not have pleaded guilty absent the omission then the burden shifts to the state to justify the error by establishing through extrinsic evidence the defendants knowing and voluntary relinquishment of the involved constitutional protections despite the erroneous omission