False statement in search warrant was not deliberate or made in reckless disregard


Brian Mangum owned property in Magee, Mississippi, that contained a house and shed. He had inherited the property from his grandparents and did not reside there. Mangum kept cattle on the property and generally checked on his cattle each day. Mangum testified that, on or around October 14, 2019, he visited the property to check on his cattle and noticed that both the back door of the house and the door to his shop were open. Mangum then contacted the Simpson County Sheriff’s Office.

Lieutenant Investigator Leon Wedgeworth, an investigator with the Simpson County Sheriff’s Office at that time, testified that when he arrived at the property, he observed a broken window in the back of the house and red paint on the window sill. Mangum reported that a red ox yoke was missing from the house. Mangum also identified as missing from the house a washing machine and television set. Investigator Wedgeworth next testified that the latch and locking mechanism on the shed had been broken off. He determined that an air compressor, tool boxes containing tools, and an arc welder were missing from the shed.

After Investigator Wedgeworth left the property, Mangum testified that he installed a cellular trail camera on a car shed located in between the house and the shop. The trail camera could detect motion and send real-time pictures to an app on Mangum’s cell phone. On October 15, 2019, at approximately 2:00 p.m., the trail camera transmitted a picture of a blue pickup truck with a “Vote for Toxi Allen” sticker located on the driver’s side. Mangum stated that the trail camera transmitted a picture of the truck leaving the property a short time later and that the passenger side door handle of the truck had contained duct tape.

On October 16, 2019, Investigator Wedgeworth met Mangum at L&D Scrap, where they identified items that belonged to Mangum. Investigator Wedgeworth testified that he had also obtained from L&D Scrap scale purchase tickets dated October 15, 2019. The recipient on the tickets was listed as Charles Ray McCollum, and a copy of his driver’s license was attached.

Investigator Wedgeworth testified that the sheriff’s office had had several thefts throughout the county in that area. He stated that McCollum had been identified as a suspect in those thefts. Also on October 16, Investigator Wedgeworth instructed dispatch to search the National Crime Information Center (NCIC) for McCollum’s driver’s license and vehicle tag information. Investigator Wedgeworth testified that the tag number listed on NCIC for McCollum matched the tag number of the vehicle that the sheriff’s office had identified as belonging to McCollum.

Mangum testified that, on October 18, 2019, the trail camera again transmitted pictures of the blue pickup truck, and he proceeded to the property at that time. Mangum also notified the sheriff’s department that the pickup truck was back on the property. Mangum testified that, when he arrived on the property, he observed the blue pickup truck at the edge of the woods and that the pickup truck had the same “Vote for Toxi Allen” sticker on the driver’s side and that the door handle was “messed up on the passenger side.” Mangum, who knew McCollum most of his life, then watched McCollum walk out of the woods toward him. Mangum testified that McCollum told him that he had been gathering acorns in the woods. Mangum held McCollum at gunpoint until law enforcement arrived. Investigator Wedgeworth testified that when he arrived at the property, he identified and arrested McCollum.

Investigator Wedgeworth filed an application for a search warrant for McCollum’s residence. In the search warrant affidavit, Investigator Wedgeworth wrote that the the vehicle bearing Mississippi tag CV1-3557 was identified as the vehicle used in the crime. The vehicle was on camera during the commission of the crime. Investigator Wedgeworth testified that, the day the sheriff’s office executed the search warrant, he had called Mangum and described items as he walked through McCollum’s residence. The sheriff’s office recovered the following items that Mangum had reported as stolen: a black toolbox; a black and yellow Stanley toolbox; an arc welding machine; a generator; a hand carved red ox yoke; a washing machine; and a Sanyo television set. At trial, Mangum identified the items as his.

McCollum was convicted of grand larceny and sentenced to five years. On appeal, he argued the search warrant contained false information and should have been suppressed. MSC affirmed. (MSC only reviewed for plain error since trial judge did not rule on this issue.)


To evaluate whether the issuance of a warrant is based on sufficient probable cause, we use the totality-of-the-circumstances approach explained by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), and adopted by the MSC in Lee v. State, 435 So. 2d 674 (Miss. 1983).

The affidavit underlying the warrant stated:

Your Affiant Lieutenant Investigator Leon Wedgeworth is working on an open investigation with the Simpson County Sheriff’s Department. On Monday October 14, 2019, Simpson County Deputy Kevin Freeman took a report of a burglary and grand larceny located at 1713 Hwy 541 North, Case number 2019-1130. Numerous items have been reported stolen from the residence. Also, during the course of the report and investigation it was learned that a shed had also been broken into along with the home and items removed from that shed. The vehicle bearing Mississippi tag CV1-3557 was identified as the vehicle used in the crime. The vehicle was on camera during the commission of the crime. The owner of said vehicle Charles Ray McCullum [sic] Jr. has been arrested and charged with said crime. Some of the items stolen have been recovered from L & D scrape [sic] yard in Magee, Mississippi. The remaining items have not been located.

McCollum claims that the warrant was invalid because the sentence, “The vehicle was on camera during the commission of the crime,” is false. The initial theft occurred on October 14, but the recordings of the truck on the property were from October 15 and 18. McCollum argues that, because of the false statement in the warrant, he is entitled to a probable cause hearing under SCOTUS Franks v. Delaware, 438 U.S. 154 (1978). A Franks hearing is required where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. There must be allegations of deliberate falsehood or of reckless disregard for the truth and those allegations must be accompanied by an offer of proof. Allegations of negligence or innocent mistake are insufficient. See MSC Petti v. State, 666 So. 2d 754 (Miss. 1995).

No evidence in the record suggests that the false statement was anything more than a result of negligence or mistake. Certainly, there is no evidence that the statement was made with the intent to be misleading or false or that the statement was made with reckless disregard for the truth. We take into consideration the Franks Court’s reluctance to extend the rule of exclusion beyond instances of deliberate misstatements and those of reckless disregard. McCollum’s argument would fail on that point alone—the affiant did not have the required intent to mislead or reckless disregard for the truth—however, the false statement was also unnecessary to the finding of probable cause.

The record contains myriad evidence supporting the allegation that McCollum’s vehicle bearing Mississippi tag CV1-3557 was identified as the vehicle used in the crime. McCollum’s truck was pictured on the property twice after the report of theft was filed. McCollum and his truck were identified by a scrap yard employee. Further, McCollum’s name was on the L&D Scrap scale purchase tickets where some of the stolen property was found, McCollum was identified as a suspect in previous thefts that occurred in the area, and Investigator Wedgeworth, after searching McCollum in NCIC, obtained McCollum’s address and vehicle tag number matching the truck recorded on camera.

The evidence supported that probable cause existed that a crime was committed and that McCollum committed it. Probable cause is a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it. See Woods.

Multiple individuals implicated McCollum in the theft. Based on the reliable information known to him, Investigator Wedgeworth suspected McCollum’s involvement in the theft. As a result, Investigator Wedgeworth obtained a legal search warrant to search McCollum’s residence. At McCollum’s residence, the arresting officer then observed items matching the description of Mangum’s stolen property. Based on the totality of the circumstances, Investigator Wedgeworth presented sufficient probable cause to the magistrate that McCollum committed the theft against Mangum to justify the search warrant.