Failure to raise a Franks issue before District Court makes the issue subject to plain error analysis on appeal

Defendant’s failure to raise his Franks challenge in the District Court made it subject to only plain error review on appeal. The single issue raised is whether some ambiguity in the timing of events was sufficient to raise a Franks issue, and it was not. United States v. Snow, 228 Fed. Appx. 203 (3d Cir. 2007)* (unpublished):

Snow did not argue in his motion to suppress that McCue’s affidavit contained false statements or material omissions. Snow’s counsel merely noted, after the District Court’s denial of the suppression motion, that “there is some ambiguity as to the timing as to when some of the issues actually happened.” App. at 13. This statement, made after the Court’s ruling on the motion, is plainly insufficient to make a preliminary showing under Franks that the affiant included a false statement in the warrant affidavit.

Defendant was stopped for entering a federal parkway with a bow and arrows in the backseat, which is a violation of federal regulations. Once out of the car, he spontaneously admitted he had a hand gun, too. The search of the vehicle was with probable cause. United States v. Carrico, 2007 U.S. Dist. LEXIS 28672 (W.D. Va. April 10, 2007).*

N.J. recognizes racial profiling in stops by a lower threshold of proof, and, in this case, the defendant met that burden. After his stop things occurred with the vehicle occupants (flight, furtive movements, wrestling with police) which the state argued and trial court initially held broke the causal connection between the stop and search. Defendant at least gets a hearing on the profiling issue. State v. Lee, 190 N.J. 270, 920 A.2d 80 (2007).*

Police had cause and exigent circumstances to enter plaintiff’s home without a warrant to look for his missing girlfriend, so they were entitled to qualified immunity. Colao v Mills, 2007 NY Slip Op 3230, 2007 N.Y. App. Div. LEXIS 4705 (3d Dept. April 19, 2007):

Here, defendants possessed information that Bergman was missing, she had been involved in a domestic disturbance with plaintiff, she feared that plaintiff would kill her, he had alcohol and weapons in his home and she intended to return there. It was objectively reasonable for police officers possessing this information to believe that Bergman could be inside plaintiff’s house, she could be injured and they needed to find her quickly. Under the circumstances, defendants were justified in entering plaintiff’s home and searching for Bergman (see People v Evans, 21 AD3d 1317, 1317-1318, 801 N.Y.S.2d 462 [2005], lv denied 6 N.Y.3d 775, 844 N.E.2d 797, 811 N.Y.S.2d 342 [2006]). It was reasonable for defendants to conduct the second search of every area inside the house where a person or body could be located, including the large gun safe, because the initial cursory search did not include all areas where a person could hide or be hidden, Bergman had still not been located and, after the initial search, defendants obtained additional information indicating that the domestic disturbance may have been violent (compare Tierney v Davidson, 133 F.3d 189, 197-199 [2d Cir 1998]). Hence, defendants’ conduct in executing the two warrantless searches of plaintiff’s house was permissible under the exigent circumstances exception and did not violate plaintiff’s constitutional rights.