Category Archives: Franks doctrine

N.D.Ohio: Under Franks, materiality of the omitted info to PC is required, not just that it was omitted

“Hill argues Agent Fulmer’s affidavit omitted information previously obtained during the investigation and which was contained in an affidavit submitted with a wiretap application filed in the Eastern District of Michigan in December 2016. Hill, however, does not explain how … Continue reading

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CA1: Franks challenge fails to undermine PC; alternative scenario was “implausible”

Defendant posited much information that was omitted from the affidavit for the search warrant, but that would have created an implausible scenario that didn’t even make sense to the appeals court. “Even if we assume that the challenged statements and … Continue reading

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OH7: There was plenty of PC for def’s DNA in a murder case to connect him to the body found in his house

Affidavits for search warrant can be based on hearsay, and here the totality of information was probable cause to gather defendant’s DNA in a murder case. There was a known connection between the defendant and the victim, and male DNA … Continue reading

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D.Md.: Officer gets QI for arresting person with same name but it turned out warrant was for far younger woman of different race

Plaintiff was legally blind but owned her car. She was a passenger in the back seat. After the vehicle was stopped, the officer found a warrant for a person with the same name as her. She protested she wasn’t the … Continue reading

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CA9: PC is a close question, and that’s good enough for GFE

“In this case, it is a close question whether the warrant was supported by probable cause. Although a close call, we need not resolve this issue because even if the warrant lacked probable cause, the good faith exception to the … Continue reading

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Franks doctrine 40 years old this week

The Franks doctrine, Franks v. Delaware, 438 U.S. 154 (1978), turned 40 on Tuesday. I missed it.

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CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing

Nonmaterial error in inclusion of an erroneous fact in a wiretap application and search request for house didn’t require a Franks hearing. United States v. Osborne, 2018 U.S. App. LEXIS 17142 (2d Cir. June 25, 2018).* Defendant’s post-conviction claim defense … Continue reading

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NE: A pre-Birchfield warrantless blood draw would not be excluded under GFE

A blood draw that predated Birchfield was valid under the good faith exception. “Because the good faith exception applies, the district court erred in reversing Hatfield’s conviction.” State v. Hatfield, 300 Neb. 152 (June 8, 2018). Two controlled buys by … Continue reading

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S.D.Ill.: SW affidavit doesn’t have to be labeled one to be one

A search warrant affidavit doesn’t have to be headed “affidavit” to be one, and the attachments are considered sworn to if referred to in the body. The affidavit’s typo of having the 16th as the date of the offense when … Continue reading

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E.D.Ky.: Omission of exculpatory information is far less likely to be a Franks issue

Omission of exculpatory information is far less likely to be a Franks issue because (1) it doesn’t often matter and (2) it would lead to endless forays into what is exculpatory. Defendant fails to make a Franks preliminary showing. United … Continue reading

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D.Minn.: Merely saying that defendant “will offer evidence” to support his allegations at a Franks hearing isn’t an offer of proof

Merely saying that defendant “will offer evidence” to support his allegations at a Franks hearing isn’t an offer of proof. “Stating an intent to offer evidence in the future does not satisfy McMillan’s immediate burden to justify the need for … Continue reading

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S.D.N.Y.: Defense counsel’s affidavit of an alleged Franks violation was speculative

Defense counsel’s conclusion that a video at issue was the same one on a cell phone is speculative at best. “The Court concludes that the detective’s statement that the phone in the surveillance footage appears to be the same as … Continue reading

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