D.D.C.: Franks doesn’t apply to facts of intent for crime, just PC

Defendant Somali alleged pirate’s Franks claim based on omission of exculpatory facts about his intent to aid the other pirates fails. Probable cause was shown with exculpatory facts, and his mens rea is fact for trial. United States v. Ali, 870 F. Supp. 2d 10 (D. D.C. 2012):

Ali’s primary challenge to the sufficiency of the affidavits is born of the fact that he maintains a view of his role on the CEC Future that is completely at odds with the government’s characterization of the evidence. Ali’s chief defense at trial will be that he intended neither to conspire with, nor to aid and abet, the pirates. The government, on the other hand, argues that Ali had the requisite intent. The jury will make the ultimate determination of Ali’s mens rea. But, in his motion to suppress, Ali presses a related argument. He claims that the affidavits underlying certain warrants omitted facts which he alleges show his innocent intent, and that these omissions entitle him to a Franks hearing.

In so arguing, however, Ali has confused the showing required of an affidavit—for probable cause—with that required of the government to prove his guilt. “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 245 n.13; see Jones, 362 U.S. at 270 (the “‘difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search'” is “‘large'” (quoting Brinegar v. United States, 338 U.S. 160, 172 (1949))). And “‘[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.'” Zurcher v. Stanford Daily, 436 U.S. 547, 558 (1978) (alteration in the original) (quoting United States v. Mfrs. Nat’l Bank of Detroit, 536 F.2d 699, 703 (6th Cir. 1976)).

While Ali maintains that his own involvement in the piracy of the CEC Future was not criminal, he does not contest that what occurred was a crime. Therefore, the only question is whether there was a “fair probability that contraband or evidence of [that] crime [would] be found in” the warrants’ targets. Gates, 462 U.S. at 238; see Zurcher, 436 U.S. at 558; Mays, 134 F.3d at 814 (“[S]earch warrants are directed, not at persons, but at property where there is probable cause to believe that … evidence of a crime will be found.”). On these facts, Ali’s intent was not relevant to the magistrates’ determinations of probable cause.