The following excerpt is from U.S. v. Rzeslawski, 981 F.2d 1260 (9th Cir. 1992):
Id. at 155-56. "Similarly, a defendant is entitled to a Franks hearing upon a 'substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading.' " United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir.1988) (quoting United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), modified, 769 F.2d 1410 (1985)), cert. denied, 489 U.S. 1084 (1989). If at the hearing the defendant establishes by a preponderance of evidence the allegation of a reckless or knowing misstatement or omission and if the other information in the affidavit 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." Franks, 438 U.S. at 156.
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