Category Archives: Franks doctrine

NY3: Officer’s subjective intent to search doesn’t matter where there was PC under automobile exception

The officer’s alleged subjective intent to search didn’t matter because there was justification under the automobile exception anyway. People v. HinesPeople v. HinesPeople v. Hines, 2019 NY Slip Op 03853, 2019 N.Y. App. Div. LEXIS 3884 (3d Dept. May 16, … Continue reading

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E.D.Wis.: In camera submissions to rebut Franks claim should have had a hearing

An in camera submission of materials to rebut defendant’s Franks claim required a hearing. Defendant was entitled to see it and then respond. United States v. Lewis, 2019 U.S. Dist. LEXIS 81937 (E.D. Wis. May 15, 2019). Which begs the … Continue reading

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D.N.M.: Franks doesn’t apply to grand jury testimony and resulting subpoenas

Franks doesn’t apply to grand jury testimony and resulting subpoenas. United States v. Tolbert, 2019 U.S. Dist. LEXIS 76939 (D. N.M. May 7, 2019):

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N.D.Okla.: Merely stating affidavit for SW was “false and misleading” doesn’t state a § 1983 civil Franks claim.

Merely stating that an affidavit for search warrant was “false and misleading” doesn’t state a § 1983 civil Franks claim. Affordable Bail Bonds v. Tulsa County Sheriff’s Office, 2019 U.S. Dist. LEXIS 75411 (N.D. Okla. May 3, 2019). The respondent … Continue reading

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AR: Claim of misstatement or incorrect fact in SW affidavit doesn’t state Franks claim without allegation it was reckless or intentional

Merely stating that information in the affidavit for search warrant was incorrect doesn’t preserve a Franks challenge without also alleging that it was recklessly or intentionally made. King v. State, 2019 Ark. 114, 2019 Ark. LEXIS 125 (Apr. 18, 2019). … Continue reading

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D.Mont.: Omission of def’s acquittal in a somewhat related case before the SW was issued was a Franks violation, but adding it in still leads to PC

The affidavit for search warrant omitted that defendant had been tried and acquitted of incest shortly before. Recasting the affidavit to include that fact, however, still leads to probable cause. “The Court determines that probable cause remains even after the … Continue reading

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D.Me.: Absent room renter could consent to search of motel room def was alone in under Randolph

Defendant was the sole occupant of his hotel room, and the absent renter consented to the search. That consent was binding on defendant under Randolph. It wasn’t ineffective assistance of counsel for defense counsel to fail to argue for an … Continue reading

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D.P.R.: Factual assertion in SW affidavit based on inference was reasonable and not false

Defendant’s Franks challenge fails. The officer’s assertion of fact was a reasonable inference based on what he saw and wasn’t false. United States v. Cruz-Arroyo, 2019 U.S. Dist. LEXIS 47172 (D. P.R. Mar. 19, 2019).* Defendant’s Franks challenge fails for … Continue reading

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D.Nev.: The fact the officers claimed to smell marijuana but didn’t find any doesn’t mean they were lying

It was testified that the car smelled like burnt marijuana. The fact none was found doesn’t indicate that officers were lying. United States v. Davila, 2019 U.S. Dist. LEXIS 42805 (D. Nev. Jan. 31, 2019),* adopted, 2019 U.S. Dist. LEXIS … Continue reading

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CA7: SW not required by Riley and Carpenter for cell phone and computer searches at border

The Seventh Circuit finds that the border search exception was not affected by Riley and Carpenter such that a search warrant is required for search of electronics at the border. United States v. Wanjiku, 2019 U.S. App. LEXIS 8154 (7th … Continue reading

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Cal. App. Div.: Driver being told he had to submit to a BAC test wasn’t consent at all

The officer here told defendant that he had to submit to a blood test, so there was no voluntary consent. “Here, the officer violated section 655.1 by telling defendant he had to choose instead of requesting that he submit to … Continue reading

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N.D.N.Y.: Even if def accused drug dealer’s alleged cover business was omitted from affidavit, there still was PC

The officers lack of complete detail to fully explain defendant’s version that he might have had a lawful explanation for what he was doing doesn’t rise to the high bar of a Franks violation. In addition, it’s not uncommon for … Continue reading

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