{"id":3687,"date":"2010-05-18T23:20:38","date_gmt":"2009-12-31T08:42:45","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-12-31T08:42:45","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3687","title":{"rendered":"N.D.Ga.: No duty to investigate to negate PC under Franks<\/em>"},"content":{"rendered":"

Officers do not violate Franks<\/a> by not investigating further to negate what they already know. United States v. Lebowitz, 647 F. Supp. 2d 1336 (N.D. Ga. 2009):<\/p>\n

Courts have uniformly rejected defense arguments that further investigation should have been conducted to either corroborate or to negate the information in the affidavit or else the search warrant lacks probable cause. See, e.g., United States v. Shields, 458 F.3d 269, 280 (3rd Cir. 2006) (rejecting the defendant’s contention that affidavit lacked probable cause because FBI could have conducted more investigation, the court stated that “[w]hether the FBI could have provided more information is not the benchmark,” the question is whether the “valid information it supplies satisfies the ‘fair probability’ standard”); United States v. Gourde, 440 F.3d 1065, 1072-73 (9th Cir. 2006) (en banc) (finding that the defendant’s argument converted the “fair probability” standard to “a test of near certainty[,]” the court held that “Gates, however, does not compel the government to provide more facts than necessary to show a ‘fair probability’ that Gourde had committed a crime”); United States v. Dale, 991 F.2d 819, 844, 301 U.S. App. D.C. 110 (D.C. Cir. 1993) (rejecting the defendant’s argument that probable cause “requires an officer to exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence”). The question in this case is not whether further investigation would have corroborated the statement in the affidavit that Defendant used his home computer but whether the affidavit’s factual statements, based on facts known to the affiant at that time, establish a “fair probability” that the home computer was used to contact the victim.<\/p>\n

Likewise, courts have rejected defense arguments that failure to conduct such investigations constitutes a reckless disregard for the truth as required to satisfy the Franks’ test. … <\/p><\/blockquote>\n

The court erroneously granted the defendant\u2019s motion to suppress under Gant<\/a>. The object of the search was drugs and Gant<\/a> recognizes that as a permissible search incident. United States v. Page, 679 F. Supp. 2d 648 (E.D. Va. 2009).*<\/p>\n

The Second Circuit affirmed the dismissal of a case over whether the NSA recorded conversations between Gitmo defendants and their lawyers. The government did not even have to admit or deny the existence of the records under the Glomar<\/em> doctrine. Wilner v. National Security Agency<\/a> (08-4726-cv December 30, 2009) (Fourth Amendment not cited). See Law.com<\/a>.<\/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-3687","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3687","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=3687"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/3687\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3687"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3687"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3687"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}