E.D.Tenn.: Knock-and-talk wasn’t drawn out to become a seizure at def’s own door; good Franks example

That the knock-and-talk was too long drawn out to turn into a seizure is rejected. The officers testified they smelled marijuana at the door. “The Court finds Defendants’ next two contentions, that the officers’ ability to smell marijuana at the doorway defies logic and the rules of thermodynamics, unpersuasive. Defendants have offered no evidence to demonstrate how a small amount of marijuana cannot be detected by smell, other than to say it defies logic. Simply stating something is illogical is insufficient, particularly when all three officers credibly testified to detecting the odor of marijuana even though only a small amount of marijuana was present.” Also, defendant gets a Franks hearing and loses. The officer admits his carelessness in the affidavit, but the court ignores the challenged information and finds the remainder still shows probable cause. United States v. Vaughn, 2019 U.S. Dist. LEXIS 216621 (E.D. Tenn. Dec. 17, 2019):

Here, the Court agrees with the Magistrate Judge’s finding that the July Affidavit contains one material false statement: “[A]gents observed a black male exit building 5 and walk to a Black Chevrolet Equinox with Florida tags. Metro-Nashville Officers were familiar with the black male subject and stated that he also had warrants out of Davidson County, Tennessee.” (Doc. 25-1 at 3.) This statement suggests Defendant Vaughn had outstanding arrest warrants, which was not true. The Court also agrees with the Magistrate Judge’s finding that the affidavit creates a false impression that Defendant Vaughn was a known fugitive.

Agent Brewer testified that the errors in the affidavit were a mistake and he could have written the affidavit differently to more accurately explain what occurred. (Doc. 37 at 223.) However, even if the Court assumes the inaccurate statement and false impression were included deliberately or in reckless disregard for the truth, the warrant is only invalid if what remains after excising that information and adding in omitted information does not support probable cause. See Charles, 138 F.3d at 263; Atkin, 107 F.3d at 1217. Excising the inaccurate information and evidence observed during the protective sweep and adding the omitted information regarding Defendant Vaughn’s lack of any connection to Lytle still leaves the following:

While agents spoke with the black male in the parking lot, Assistant Director Shane George and Special Agent John Lasater approached and knocked at the front door of apartment 56. The door was opened by a black male. At that time AD George noticed the very strong odor of marijuana emitting from the interior of the residence. AD George informed the subject that he needed to step inside and speak with him about the odor of marijuana coming from the apartment.

(Doc. 25-1 at 3.) The Court finds that this is sufficient to establish probable cause.

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