Category Archives: Franks doctrine

OR: Holding def’s ID for 30 minutes for no apparent reason was a seizure without RS

Retaining defendant’s ID for 30 minutes before even thinking about questioning his identity was a seizure without reasonable suspicion. State v. Orman, 322 Or. App. 707, 2022 Ore. App. LEXIS 1479 (Nov. 16, 2022). Defendant was not seized when he … Continue reading

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N.D.Ind.: Franks hearing ordered over officer’s claim of smell of MJ

Defendant gets a Franks hearing even if to rebut the government’s claim the good faith exception applies. The affiant officer claimed there was an “overwhelming” smell of marijuana coming from defendant’s house as they approached for a knock-and-talk, which was … Continue reading

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WV: Juvenile “pick-up” order issued on PC was equivalent of warrant for Payton purposes for entry into mom’s home

Entry on a juvenile “pick-up” order here “was founded upon probable cause to believe that her ‘health, safety and welfare’ demanded it …. was the functional equivalent of an arrest warrant and was lawfully issued.” Therefore, the entry was valid … Continue reading

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D.Vt.: Def’s misidentification in original affidavit was later corrected and overall survives Franks challenge

There were omissions in the original affidavit for warrant about identification that were later cleared up in a subsequent affidavit for another. On the whole, probable cause remains no matter what. United States v. Mohamud, 2022 U.S. Dist. LEXIS 205560 … Continue reading

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CA4: Omissions under Franks have to be shown “designed to mislead”

When challenging a search warrant under Franks for omission of information, the defendant’s burden is higher because affidavits for warrants never include all available information and don’t have to, and the omissions have to be shown “designed to mislead.” Defendant … Continue reading

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FL2: Def counsel not ineffective where search evidence not objected to had no apparent prejudice to case

Defense counsel was ineffective in not moving to suppress one piece of evidence, but defendant can’t show he was prejudiced by it on the case as a whole. Szewczyk v. State, 2022 Fla. App. LEXIS 7180 (Fla. 2d DCA Oct. … Continue reading

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M.D.Fla.: Alleged nice “threat” to break down door to enter on warrant was not coercive

Officer’s alleged threat to break down the door stated in a nice tone of voice was not coercive, even if true, because the officer could have. On the totality, there was consent to enter to execute the arrest warrant because … Continue reading

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Techdirt: Federal Judge Says FBI Misled Magistrate When Seeking Safe Deposit Warrants, OKs Searches Anyway

Techdirt: Federal Judge Says FBI Misled Magistrate When Seeking Safe Deposit Warrants, OKs Searches Anyway by Tim Cushing (“Unfortunately, the federal court handling this case doesn’t think the FBI’s lie matters, at least not in terms of determining probable cause. … Continue reading

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N.D.Cal.: Running passengers’ IDs was outside mission of traffic stop

Running the IDs of the passengers and checking on the probation or parole status was beyond the mission of the traffic stop. Motion to suppress granted. United States v. Taylor, 2022 U.S. Dist. LEXIS 182023 (N.D. Cal. Oct. 4, 2022). … Continue reading

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NY2: Franks claim has to be fully developed; it’s more than just a false statement

Franks claim fails for failure to show how the alleged false statements undermined the probable cause. “The defendant failed to meet his burden of controverting the warrant, as he failed to analyze, must less establish, that after the excise of … Continue reading

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M.D.Tenn.: Failure to mention in a warrant application that CI was getting leniency is not a Franks violation

Failure to mention in a warrant application that the CI was getting leniency is not a Franks violation. (It’s practically common knowledge they probably are.) Robinson v. United States, 2022 U.S. Dist. LEXIS 174791 (M.D. Tenn. Sep. 27, 2022):

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NV: Protective sweep doesn’t require a prior arrest and state didn’t articulate the RS of potential danger for it

“While we hold that a protective sweep does not require a prior arrest, we conclude that the district court correctly concluded that the search performed here was not a lawful protective sweep because it was not based on articulable facts … Continue reading

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CA5: Car could be towed and inventoried rather than left at gas pumps

Officers observed two traffic violations and stopped him at gas pumps. An old arrest warrant surfaced. Leaving the car at the gas pump was not reasonable–it could be towed and inventoried. United States v. Walker, 2022 U.S. App. LEXIS 26405 … Continue reading

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E.D.Va.: Defense counsel’s failure to file a motion to suppress not a ground to withdraw a guilty plea

It is settled in most courts that failure to pursue a motion to suppress is a ground to set aside a guilty plea. United States v. Foster, 2022 U.S. Dist. LEXIS 170198 (E.D. Va. Sep. 20, 2022).* [People plead guilty … Continue reading

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IL: Smell of burnt MJ in a car in a recreational use state not PC

“We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with … Continue reading

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Cal.4th: SW papers for cell site simulators remain under seal because CIs are identified in there

EFF sued for access to search warrant materials that led to use of cell site simulators. The court finds that the protection of named CIs in the papers still needs to be protected, and they remain under seal. Electronic Frontier … Continue reading

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DC: Tracking def off his WMATA fair card was like Knotts and reasonable

Police use of information off of defendant’s WMATA fare card first to find him to arrest him for a robbery on a train and then to place him on a train at the time of the robbery was reasonable. This … Continue reading

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OH11: Driver not matching owner of car not RS

Just because the driver isn’t the owner doesn’t mean the car is stolen. See Kansas v. Glover. This was extending the stop without reasonable suspicion. State v. Dunlap, 2022-Ohio-3007, 2022 Ohio App. LEXIS 2828 (11th Dist. Aug. 29, 2022); State … Continue reading

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W.D.Pa.: A request to show hands requires RS

The facts not being in dispute, no hearing was required on defendant’s motion to suppress. A request to show hands required reasonable suspicion. United States v. Chambers, 2022 U.S. Dist. LEXIS 148692 (W.D. Pa. Aug. 19, 2022). Defendant alluded to … Continue reading

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MI: No RS for getting def out of car for a frisk

Defendant’s stop was justified, but getting him out of the vehicle for a frisk was not. Suppressed. People v. Turner, 2022 Mich. App. LEXIS 4943 (Aug. 18, 2022) (2-1). On the totality, defendant consented to an interview in his own … Continue reading

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