Plaintiff’s argument that there was no gambling crime for a search to occur is “fantasy” — the question is probable cause to believe a crime occurred, not whether one actually did. Lucky Tunes #3 LLC v. Smith, 2020 U.S. App. LEXIS 14130 (5th Cir. May 1, 2020) (the court was a little harsh on plaintiff’s counsel):
… Therefore, Lucky Tunes claims, “there was categorically no crime, and hence no probable cause.”
This argument is fantasy. Probable cause “requires only a probability or substantial chance of criminal activity.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (quotation omitted). It has never been the case that a constitutional violation arises when the conduct in question turns out to be legal. Instead, we must ask whether, under the totality of the circumstances, the facts known to the officer at the time of the affidavit would lead an objectively reasonable officer to believe there was probable cause. See id. We hold that the affidavits established probable cause even if we omit the references to betting and insert the facts that the sweepstakes were advertised as free and did not involve a transaction separate from the music download certificates. Therefore, Lucky Tunes did not plead facts to support a showing of materiality under Franks. See Kohler, 470 F.3d at 1113.