E.D.Cal.: Def succeeds in a Franks challenge

Defendant succeeds in a Franks challenge. Removing the offending portions leaves no probable cause. United States v. Kastis, 2018 U.S. Dist. LEXIS 148480 (E.D. Cal. Aug. 31, 2018):*

Here, the court is convinced that with the false statements and omissions corrected, this search warrant, as issued, could not have been properly authorized. All the reviewing judge would have had before him was an affidavit stating that: 1) a month earlier police received a report that at some unspecified time the defendant had invited three girls into his apartment for candy and Gatorade and then blocked CV1 in the doorway of his apartment and quickly kissed her five times; 2) on one subsequent occasion CV1 saw defendant purposely grab CV2’s butt while they were playing soccer; 3) on one occasion at an unspecified time the defendant had purposely touched CV2’s butt while they were swimming in the apartment complex pool; 4) CV2 also reported that six months earlier the defendant had invited her to get candy from a bowl in his apartment and had placed his hands over her shoulders onto her chest; and 5) the defendant had on one unspecified occasion taken a photograph of CV2 while she was wearing her bathing suit and had used the image as a screen saver on his computer. That limited information would have perhaps established probable cause to believe that the defendant had annoyed or molested a child in violation of California Penal Code § 647.6(a), a misdemeanor offense absent certain prior convictions. See California Penal Code § 647.6(c). Even if these facts could have arguably supported probable cause to believe that the felony offense of lewd or lascivious acts on a child in violation of Penal Code § 288(a) had been committed, they could not have supported probable cause for the broad computer search authorized here, which in reality was aimed at discovery of child pornography. At most, perhaps, a warrant conceivably could have been issued for the candy bowl, a digital camera, and the photo of CV2 in her bathing suit.

This conclusion is in keeping with settled, binding Ninth Circuit precedent. …