Category Archives: Franks doctrine

D.Alas.: Consent to search doesn’t include destruction of property in the search

The government got consent to search a package for drugs. That consent did not include cutting a candle in half to find the drugs. Consent to search doesn’t include destruction of property. United States v. Swenton, 2018 U.S. Dist. LEXIS … Continue reading

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VI: In a traffic stop, def delayed in getting out and made furtive movements; officer asked “what do you have there?” Answer [“Just some weed.”] wasn’t 5A violation under Berkemer

Defendant was stopped for passing on a double solid line. The officer called out through the vehicle PA for him to get out of the car, but he first fished around moving things. When the officer got to the window, … Continue reading

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AR: The right to counsel applies at suppression hearings

The right to counsel applies at suppression hearings. Defendant’s attempted waiver was ineffective. Shabazz v. State, 2018 Ark. App. 281, 2018 Ark. App. LEXIS 298 (May 2, 2018). The officer writing the affidavit misstated the evidence that another officer smelled … Continue reading

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IN: Thermal imaging SW was based on PC, then SW for house was, too

The police obtained a thermal imaging warrant, and it was based on probable cause, information from a CI that was corroborated. That led to a search warrant for the premises, and it was also based on collective knowledge of the … Continue reading

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CA10: Under the Franks doctrine, relevance doesn’t equate with materiality; district court erred in finding Franks violation from omission of report

Under the Franks doctrine, relevance doesn’t equate with materiality. Defendant was the target of a health fraud investigation with a detailed affidavit that omitted a reference to a letter from state regulators that made no reference to health care fraud. … Continue reading

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D.Mass.: Def made his Franks challenge at the suppression hearing; statement was reckless and completely undermined nexus to house

Defendant showed enough to get a Franks hearing. United States v. Roman, 2017 U.S. Dist. LEXIS 167167, 2017 WL 4517963 (D. Mass. Oct. 10, 2017). “Following the Franks hearing—which occurred on multiple days spread out between November of 2017 and … Continue reading

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S.D.Fla.: The fact FL law provides a reasonable expectation of privacy in bank records has nothing to do with an IRS summons

The fact Florida law provides a reasonable expectation of privacy in bank records has nothing to do with an IRS summons for bank records. Presley & Presley P.A. v. United States, 2018 U.S. Dist. LEXIS 65421 (S.D. Fla. Apr. 16, … Continue reading

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MA: Affidavit established MJ grow was for sale, not personal use

The affidavit for the search warrant established probable cause that defendant’s marijuana grow was for distribution and not for personal medical use. Commonwealth v. Richardson, 2018 Mass. LEXIS 236 (Apr. 17, 2018). The Franks challenge here was over an internet … Continue reading

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TN: Argument “the rule” of witness exclusion of Rule 615 at suppression hearing has to be made in trial court

Defendant didn’t preserve for appeal his argument that the suppression hearing court allowed witnesses to sit in the rehearing of the suppression hearing because he didn’t make it to the trial court. At any rate, the transcripts of the hearing … Continue reading

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W.D.Tex.: In CA5, a person’s identity and nationality is not subject to the exclusionary rule

In the Fifth Circuit, a person’s identity and nationality is not subject to the exclusionary rule. United States v. Meza-Gonzalez, 2018 U.S. Dist. LEXIS 63254 (W.D. Tex. Apr. 16, 2018). Defendant fails on the second prong of Franks: excising the … Continue reading

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IN: Def’s backpack would have been searched anyway, so inevitable discovery applied

Inevitable discovery applied to the search of defendant’s backpack. He was arrested, and the search would have occurred as a result of that. The merits of defendant’s search claim is thus moot. Winborn v. State, 2018 Ind. App. LEXIS 133 … Continue reading

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CA4: The facts not included in the affidavit for SW only would have enhanced the PC

“We conclude that, contrary to Combs’ assertions, there is no evidence that Davis intentionally or recklessly omitted material information from the affidavit. In fact, Davis’s testimony at the suppression hearing shows that the facts not included in the affidavit would … Continue reading

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