N.D.W.Va.: A motion to suppress isn’t moot just because the govt says it won’t use the evidence in its case-in-chief; if it will to impeach, then the issue has to be resolved

Government’s agreeing it wouldn’t use the product of a search in its case in chief does not make it moot unless the government also says it won’t use it in impeachment. Then, it can only be used against the defendant and not any other witness. United States v. Chalifoux, 2018 U.S. Dist. LEXIS 138514 (N.D. W.Va. Aug. 16, 2018).

“The defendant failed to make a substantial preliminary showing under Franks. The defendant’s motion contains no showing or mention of a false statement or material omission and is not accompanied by any offer of proof. At the evidentiary hearing, the defendant argued that the government’s failure to disclose its use of a confidential source was a material omission. However, the government did not rely on information provided by a confidential source to support the probable cause set forth in the search warrant affidavit.” The search of defendant’s vehicle was valid because the officer had probable cause that a drug transaction had just occurred before defendant got into the car. United States v. Kelly, 2018 U.S. Dist. LEXIS 139817 (S.D. Fla. Jul. 13, 2018),* adopted, 2018 U.S. Dist. LEXIS 139361 (S.D. Fla. Aug. 16, 2018).*

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