Category Archives: Franks doctrine

CA3 still doesn’t adopt standard of review for Franks challenges

The Third Circuit notes that it has yet to adopt a standard of review for Franks claims; see United States v. Pavulak, 700 F.3d 651, 665-66 (3d Cir. 2012); and it doesn’t have to here because, whichever applies, defendant loses. … Continue reading

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MA: When seizing digital devices under SW, looking at camera pictures didn’t require exclusion where not mentioned in SW for camera

During a search of defendant’s house under a warrant that included seizing digital devices, the officer turned on a camera and scrolled through the pictures. When the warrant was sought for the camera, no mention was made, and inevitable discovery … Continue reading

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D.Minn.: Late night stop, no DL, digital scale on floor is RS

This late night stop was reasonably extended because the driver didn’t have a DL on him and there appeared to be a digital scale on the floor. United States v. Henry, 2020 U.S. Dist. LEXIS 115939 (D. Minn. May 20, … Continue reading

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D.Del.: Mere denials of the facts doesn’t make a Franks claim

Just saying in a motion to suppress the defendant “‘denies telling law enforcement that additional drugs could be found within his apartment’ and ‘disputes the accuracy’ of the statement that officers detected the odor of burnt marijuana in the apartment” … Continue reading

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D.Mont.: Drug dog’s reliability doesn’t need to be shown in SW application

A search warrant application does not have to support the reliability of a drug dog used to establish the probable cause under Harris. The remedy is a motion to suppress. “As this Court reads it, Harris is a reiteration of … Continue reading

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W.D.N.Y.: Inevitable discovery obviated def’s Franks challenge

A Franks hearing wasn’t required because the court finds that, even if Franks could be satisfied here, the evidence was inevitably found. United States v. Chapline, 2020 U.S. Dist. LEXIS 104509 (W.D. N.Y. June 12, 2020). It was reasonable to … Continue reading

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D.Ariz.: Whether officer should have believed CI was lying not a Franks issue

Defendant contends that the affiant officer should have known that the CI was lying because of a motive to falsify, but doesn’t say how the officer would have known or did know. That’s insufficient for Franks. Another CI was not … Continue reading

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NJ: Destruction by policy of audio of telephonic SW application required suppression even without bad faith

This case proceeded on a telephonic search warrant where the application was recorded as required by law. The recording, however, was destroyed in 90 days under the department’s records retention policy. While the destruction wasn’t in bad faith, the recording … Continue reading

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Three on Franks

Defendant’s Franks challenge was properly rejected because assuming the challenged information was out of the affidavit, probable cause still exists. United States v. Carrasco, 2020 U.S. App. LEXIS 17553 (9th Cir. June 4, 2020).* In a civil rights case, the … Continue reading

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E.D.Cal.: Material information relevant to a Franks challenge was withheld by the gov’t, and the court finds a Brady violation

Material information relevant to a Franks challenge was withheld by the government, and the court finds a Brady violation. If known to defendant, the outcome might have been different. United States v. Sheikh, 2020 U.S. Dist. LEXIS 97663 (E.D. Cal. … Continue reading

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TX14: No RS for going up to parked car in parking lot without RS

The officer did not have reasonable suspicion to stop and talk to defendant sitting in a car with another in a parking lot at night doing nothing. The area was considered high crime, but there was nothing suggesting any need … Continue reading

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MN: McNeely retroactive under Birchfield

“The rule announced in Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552 (2013), that the dissipation of alcohol in the bloodstream is not a per se exigency justifying the warrantless search of a suspected impaired driver-applies retroactively when … Continue reading

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Franks from IL and CA

The affidavit for this search warrant from a 1992 California murder did not include intentional falsities or misrepresentations. The affiant summarized witnesses’ versions of defendant’s description. Even if they were false, removing them from the affidavit still leaves probable cause. … Continue reading

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E.D.Ark.: “After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish” PC

“After editing out the incomplete and false portions of the warrant affidavit, the remaining information was insufficient to establish that Green was dead and that his death was caused by the criminal act of another person. Accordingly, the Court finds … Continue reading

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M.D.Tenn.: Failure to corroborate everything, even the easy to corroborate, isn’t reckless under Franks

Defendant did not make a substantial preliminary showing that there was a reckless material statement in support of the search warrant. Moreover, “Defendant provides no authority to support his position that an officer’s failure to corroborate a fact that ‘could … Continue reading

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D.Nev.: Franks challenges have two elements; failure of one is failure of the claim

The court can resolve Franks challenges by answering the easiest of the two questions, falsity or materiality, since both are required. Here, the alleged falsity wasn’t material to the probable cause determination, and that ends the inquiry. United States v. … Continue reading

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