New standard for reckless disregard of truth of law enforcement information

On August 24, 2006, the Third Circuit announced the standard by which the district courts should determine whether a government agent acted recklessly in relying on information provided by a sister government agency and including it in a search warrant affidavit. In U.S. v. Yusuf, No. 05-3484, an FBI agent presented an affidavit containing information that later proved to be inaccurate because of an error made by the Virgin Islands Bureau of Internal Revenue ("VIBIR"). Although the district court concluded that the agent had acted in reckless disregard for the truth and excised the information from the affidavit, the Third Circuit noted the general presumption of reliability afforded information that law enforcement officers receive from each other for use in their investigations and set forth the test to be used when an affidavit is found to contain inaccurate information. In order to show that an agent has acted recklessly, the defendant must first establish that "that the information would have put a reasonable official o notice that further investigation was required." Then, he must present evidence "(1) of a systemic failure on the agency's part to produce accurate information upon request; or (2) that the officer's particular investigation into possibly inaccurate information should have given the officer an obvious reason to doubt the accuracy of the information."

Here, the defendants operated a chain of grocery stores in the Virgin Islands and the FBI was conducting an investigation to determine whether they had been laundering money for a drug trafficker. The VIBIR provided inaccurate tax records indicating that the defendants had underreported their income on tax returns by $54 million, and the FBI relied on that information to support allegations of tax fraud in the affidavit. When more information became available, it turned out that the defendants had underreported by a little more than $7 million. However, the agent on the case did not investigate to determine whether the records were accurate, and he admitted at a Franks hearing that he should have.

Regardless, the court concluded that the agent had not acted recklessly. In assessing an agent's failure to investigate further upon receipt of questionable information, the court explained, the district court must consider "whether a reasonable agent would have been aware of a systemic failure on the [sister] agency's part to produce accurate information upon request," and whether further investigation would give an agent reason to doubt the information's accuracy. In answering the first question, the district court should look at whether the agent knows that the sister agency has a history of providing inaccurate information, and whether it has procedural safeguards in place to prevent the dissemination of inaccurate information. As for the second question, the court should consider where the information comes from and what it concerns, whether there is a "reasonably plausible explanation" for the inaccuracy, and "the quality of the agent's attempts to validate the information."

In this case, the agent reported that neither he nor any other FBI agent had ever received inaccurate information from VIBIR, and that he had repeatedly asked VIBIR for an explanation of the discrepancy in the tax records that indicated the underreporting. VIBIR produced the information in response to a court order, which dispelled any suspicion that the two agencies colluded to submit a falsified affidavit. The FBI initiated the investigation, so it could not be alleged that VIBIR provided the information to conceal bad faith or an improper motive. Finally, VIBIR's insistence that the defendants underrepresented their income provided a reasonably plausible explanation for the error in the tax records. Therefore, the agent did not act in reckless disregard of the truth.