Category Archives: Franks doctrine

CA9: PC is a close question, and that’s good enough for GFE

“In this case, it is a close question whether the warrant was supported by probable cause. Although a close call, we need not resolve this issue because even if the warrant lacked probable cause, the good faith exception to the … Continue reading

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Franks doctrine 40 years old this week

The Franks doctrine, Franks v. Delaware, 438 U.S. 154 (1978), turned 40 on Tuesday. I missed it.

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CA2: Nonmaterial error of fact in Title III application and SW for house didn’t merit Franks hearing

Nonmaterial error in inclusion of an erroneous fact in a wiretap application and search request for house didn’t require a Franks hearing. United States v. Osborne, 2018 U.S. App. LEXIS 17142 (2d Cir. June 25, 2018).* Defendant’s post-conviction claim defense … Continue reading

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NE: A pre-Birchfield warrantless blood draw would not be excluded under GFE

A blood draw that predated Birchfield was valid under the good faith exception. “Because the good faith exception applies, the district court erred in reversing Hatfield’s conviction.” State v. Hatfield, 300 Neb. 152 (June 8, 2018). Two controlled buys by … Continue reading

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S.D.Ill.: SW affidavit doesn’t have to be labeled one to be one

A search warrant affidavit doesn’t have to be headed “affidavit” to be one, and the attachments are considered sworn to if referred to in the body. The affidavit’s typo of having the 16th as the date of the offense when … Continue reading

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E.D.Ky.: Omission of exculpatory information is far less likely to be a Franks issue

Omission of exculpatory information is far less likely to be a Franks issue because (1) it doesn’t often matter and (2) it would lead to endless forays into what is exculpatory. Defendant fails to make a Franks preliminary showing. United … Continue reading

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D.Minn.: Merely saying that defendant “will offer evidence” to support his allegations at a Franks hearing isn’t an offer of proof

Merely saying that defendant “will offer evidence” to support his allegations at a Franks hearing isn’t an offer of proof. “Stating an intent to offer evidence in the future does not satisfy McMillan’s immediate burden to justify the need for … Continue reading

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S.D.N.Y.: Defense counsel’s affidavit of an alleged Franks violation was speculative

Defense counsel’s conclusion that a video at issue was the same one on a cell phone is speculative at best. “The Court concludes that the detective’s statement that the phone in the surveillance footage appears to be the same as … Continue reading

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E.D.Mich.: Def’s disclaiming ownership of cell phone when seized is a lack of standing, even when he claimed it after it rang

Defendant had no standing to challenge a search of a cell phone found in his car that he said belonged to his girlfriend. “Jackson does not deny that he disclaimed ownership of the phone at the time it was seized. … Continue reading

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CA5: Grounds to overcome GFE all have to be raised in the trial ocurt or waived

Defendant raises a ground to attempt to overcome the good faith exception, but he didn’t raise it in the district court, so it’s waived. United States v. Rosa, 2018 U.S. App. LEXIS 12276 (5th Cir. May 10, 2018). When defendant … Continue reading

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OH12: Def’s claim judge didn’t sign SW has zero evidentiary support

The defendant contended that the judge’s signature on the search warrant was false. The only testimony at the suppression hearing was that the judge signed it at home. The evidence supports the trial court’s finding. State v. Clayton, 2018-Ohio-1777, 2018 … Continue reading

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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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