D.Minn.: R&R rejected; granting Franks motion without a hearing was error because alleged false statement had two interpretations

The USMJ’s failure to conduct a Franks hearing in recommending a motion to suppress be granted was erroneous. The challenged statement was subject to two interpretations. “Faced with this situation, a Franks hearing would have allowed the Magistrate Judge to test the veracity of the claims in the warrant. Failing to conduct such a hearing was erroneous. [¶] But even if the statement could be considered false or misleading on its face, the affidavit as a whole establishes the requisite probable cause for the search. … The affidavit’s factual averments, taken as a whole, establish sufficient probable cause for the warrant to search Romero’s apartment, including opening the safe in his apartment.” The R&R is rejected, and the motion to suppress is denied. United States v. Romero, 2019 U.S. Dist. LEXIS 220401 (D. Minn. Dec. 19, 2019).*

The R&R found abundant probable cause for search of defendants’ office for evidence of a conspiracy to commit a bombing. “Thus, given the nature of the criminal activity under investigation, the items stored in Defendant’s office, and the recurrent association of Defendant’s office with criminal activity, the information linking Defendant’s office to criminal activity was not stale.” The same is said of defendant’s parent’s home. He stayed there often and made no attempt to show standing there. Even if he could, there also was probable cause as to their house, too. United States v. Hari, 2019 U.S. Dist. LEXIS 220398 (D. Minn. Dec. 20, 2019).*

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