{"id":4439,"date":"2010-09-06T17:17:37","date_gmt":"2010-07-17T09:08:52","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-17T09:08:52","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4439","title":{"rendered":"D.S.D.: Defendant succeeds on Franks<\/em> motion; affidavit can’t be rehabilitated"},"content":{"rendered":"

A gap in the information linking an IP address to defendant was sufficient to make a Franks<\/a> showing for a hearing. The officer stated something as a fact when it was his deduction. The government does not get to rehabilitate the affidavit; all that can be done is strike the offending information. The information was necessary to the finding of probable cause, and the magistrate\u2019s grant of the motion for a Franks<\/a> hearing. United States v. Nelson, 2010 U.S. Dist. LEXIS 70317 (D. S.D. July 12, 2010):<\/p>\n

Similarly, in this case, Agent Boone misled the issuing judge by misrepresenting his own analysis and conclusion regarding the identity of the subscriber associated with the suspected file-sharing activity as a factual statement made by Knology. Knology did not definitively state the identity and address of the subscriber of IP address 216.16.82.227 on the dates and times requested in the subpoena, but rather provided DHCP logs and data on which Agent Boone drew conclusions about the identity of the subscriber at the relevant time. Thus, like in McCain, Agent Boone’s affidavit was false in two related ways: first, it falsely stated that Knology determined that Nelson was the subscriber at the relevant times, and second, it misrepresented Agent Boone’s interpretation of the DHCP logs and other relevant data as a direct factual statement by Knology.<\/p>\n

. . .<\/p>\n

Despite Agent Boone’s sincere belief that he accurately determined and stated in the affidavit the identity of the subscriber of the IP address engaging in distribution of child pornography, he recklessly misrepresented the source of this conclusion and made it impossible for the issuing judge to determine whether there was probable cause to search Nelson’s home. Without this false statement, Agent Boone’s affidavit does not establish probable cause to search Nelson’s home or vehicle, and as a result, it is<\/p>\n

ORDERED that the court adopts the Report and Recommendation of Magistrate Judge Simko (Docket 27) as supplemented herein, and therefore, Nelson’s motion to suppress evidence and request for a Franks hearing (Docket 17) is granted.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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