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 the Subject Device does not justify a Franks hearing. First, there is not sufficient evidence that the detective’s opinion was actually inaccurate. There is nothing in defense counsel’s affidavit, which he submitted in support of this motion, to indicate that the cell phone in the video is not the Subject Device, or that he has personal knowledge of whether the two phones are in fact the same. See United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988) (denying Franks hearing where motion was based on affidavit of defense counsel, who did not have personal knowledge of the underlying facts). Defense counsel’s statement that the ‘nature of the footage renders it impossible to determine’ … anything about the device is insufficient, by itself, to warrant a Franks hearing.” United States v. Mathews, 2018 U.S. Dist. LEXIS 84151 (S.D. N.Y. May 18, 2018).*

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