{"id":3357,"date":"2009-12-16T14:10:34","date_gmt":"2009-09-06T10:47:02","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-09-06T10:47:02","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3357","title":{"rendered":"E.D.Ky.: Adopts GFE to Gant<\/em>"},"content":{"rendered":"

The Tenth Circuit\u2019s McCane good faith exception<\/a> to Gant<\/a> is applied on a Sixth Circuit remand under Gant<\/a>. United States v. Lopez, 2009 U.S. Dist. LEXIS 78320 (E.D. Ky. September 1, 2009). [Note: The Ninth Circuit disagrees with the Tenth<\/a>.]<\/p>\n

Government’s appeal from a USMJ’s R&R that recommended granting a motion to suppress included its disavowal of the accuracy of officer affidavits that it affirmed before the USMJ. The government can’t have it both ways. The affidavits were admissible as admissions of a party opponent. United States v. Lopez-Ortiz, 648 F. Supp. 2d 241 (D. P.R. 2009):<\/p>\n

The government, in its opposition to the R&R, offers no persuasive argument refuting the magistrate judge’s legal analysis on this matter. The government argues that the affidavit contains inaccurate information as a result of poor communication between agents present at the time of the search and seizure and agents who ultimately created the affidavit. This line of argument – the factors leading to the affidavit’s inaccuracies–is irrelevant. What matters in the analysis under Kattar is whether the government submitted the contested statements for their truth in one forum while denying their truth in another. Here, the government has done just that and, therefore, this Court agrees that the affidavit was properly admitted as a party admission.<\/p><\/blockquote>\n

The drug dog’s training need not be shown in the affidavit for search warrant to establish probable cause. United States v. Campbell, 2009 U.S. Dist. LEXIS 79363 (E.D. Ky. September 1, 2009)*:<\/p>\n

The Sixth Circuit has held that “to establish probable cause, the affidavit need not describe the particulars of the dog’s training. Instead, the affidavit’s accounting of the dog sniff indicating the presence of controlled substances and its reference to the dog’s training in narcotics investigations was sufficient to establish the dog’s training and reliability.” Berry, 90 F.3d at 153. See also United States v. Daniel, 982 F.2d 146, 151, n.7 (5th Cir.1993)(rejecting defendant’s argument that an affidavit must show how reliable a drug-detecting dog has been in the past in order to show probable cause); United States v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977)(stating that an affidavit in support of a search warrant need not describe the drug-detecting dog’s educational background and general qualifications with specificity to establish probable cause). The affidvait in this case clearly meets those requirements.<\/p><\/blockquote>\n

[Note to readers: This website will go back three years. I’ve started deleting some early 2006 posts, but not all. Some cases are enduring and are kept. There were over 3300 posts on this website.]<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-3357","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3357","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3357"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3357\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3357"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3357"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3357"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}