Category Archives: Franks doctrine

IL: The scope of consent to search a car was exceeded, but it was because PC had developed

Officers exceeded the scope of defendant’s consent, but, by the time they did, they had probable cause under the automobile exception to search further. People v. Davis, 2019 IL App (1st) 160408, 2019 Ill. App. LEXIS 875 (Sept. 23, 2019),* … Continue reading

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CA1 affirms suppression order; reforming affidavit after Franks hearing shows no nexus to def’s house

The affidavit for the search warrant, reformed after a Franks hearing, did not establish probable cause to search defendant’s home. The affidavit did not set forth facts showing defendant had a history of drug dealing to permit an inference that … Continue reading

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D.Idaho: Failure to tell USMJ that a trash pull came up empty wasn’t material when there was more that did show PC; wouldn’t have changed outcome

Omission to tell the USMJ that a trash search of defendant’s house came up empty didn’t undermine the other probable cause, wouldn’t have changed the outcome, and wasn’t a Franks issue. The same here about defendant’s alleged travels: Omissions don’t … Continue reading

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S.D.Fla.: Claim USCG couldn’t stop def waived by guilty plea

Defendant’s claim that the U.S. Coast Guard had no jurisdiction to stop him was waived by his guilty plea. Munoz v. United States, 2019 U.S. Dist. LEXIS 190095 (S.D. Fla. Oct. 31, 2019).* Defendant doesn’t get a Franks hearing because … Continue reading

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N.D.Ill.: Franks challenge requires there was a SW

Defense counsel wasn’t ineffective for not seeking a Franks hearing where there was no search warrant in the first place. Freeman v. United States, 2019 U.S. Dist. LEXIS 187171 (N.D. Ill. Oct. 29, 2019). Defendant’s general consent to search a … Continue reading

Posted in Burden of pleading, Franks doctrine, Scope of search, Suppression hearings | Comments Off on N.D.Ill.: Franks challenge requires there was a SW

AZ: Protective sweep that produced a bullet casing was unjustified (but harmless)

Defendant has standing to challenge the search of a mobile home he had rented even though he had not fully moved in, and the trial court erred in concluding otherwise. The state’s argument the entry into the mobile home required … Continue reading

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E.D.Ky.: Paraphrasing def’s jail calls on hearsay without affiant actually listening to them isn’t a Franks violation

A full forensic search of defendant’s cell phone was authorized by the affidavit which was attached to the search warrant. There were admissions from the defendant on jail calls to others that were reported to the police. The paraphrasing the … Continue reading

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MO: Def’s blood draw while he was unconscious was proper under Mitchell

Defendant was unconscious after a single car accident and he smelled of alcohol. There was probable cause and the blood draw did not violate the Fourth Amendment under Mitchell v. Wisconsin. State v. Gray, 2019 Mo. App. LEXIS 1671 (Oct. … Continue reading

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E.D.Wis.: “the issue is not whether the affiant omitted information the issuing judge may have found relevant; rather, the focus is on the affiant’s state of mind.”

“As indicated, however, the issue is not whether the affiant omitted information the issuing judge may have found relevant; rather, the focus is on the affiant’s state of mind. United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000). … Continue reading

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OR: A question to a fidgety driver about weapons in the car didn’t unreasonably prolong the stop

Defendant was pulled over after passing a parked police car three times, and the officer seeing the tags were expired on the third pass. When defendant was pulled over, he was unusually fidgety. A question about weapons in the car … Continue reading

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CA5: Franks doesn’t neatly apply to § 1983 because the question there is just probable cause

Plaintiff was arrested for capital murder based on an affidavit for arrest that omitted serious doubts about the eyewitness’s identification. Later, the charge was dropped, and plaintiff sued the affiant for a “civil Franks violation.” Franks doesn’t neatly apply in … Continue reading

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CA6: One prior excessive force claim isn’t pattern and practice in a § 1983 case

One other excessive force claim investigated by the City is not evidence of pattern and practice or failure to train. Stewart v. City of Memphis, 2019 U.S. App. LEXIS 30491 (6th Cir. Oct. 11, 2019).* Defendant’s successor 2255 also raises … Continue reading

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