Category Archives: Franks doctrine

D.Colo.: Bank records have no REP so they can be obtained for restitution purposes

There is no reasonable expectation of privacy in bank records, and the government can obtain them to enforce a restitution order. United States v. Osborn, 2023 U.S. Dist. LEXIS 90076 (D. Colo. May 23, 2023). Defendant doesn’t get a Franks … Continue reading

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OH7: Officer taking the Fifth at suppression hearing because of other matters doesn’t prove Franks violation

At defendant’s suppression hearing, one of the officers was relieved of duty due to other misconduct, and he took the Fifth. On what remains in the affidavit and on the totality doesn’t otherwise show a Franks violation. State v. Hartung, … Continue reading

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M.D.Ga.: No right to challenge SW before execution

It isn’t apparent that there’s a right to challenge a search warrant before it is executed. (Rule 17 covers motions to quash subpoenas.) Even if there was, defendant doesn’t carry his burden. United States v. Crumpton, 2023 U.S. Dist. LEXIS … Continue reading

Posted in Body searches, Franks doctrine, Motion to suppress, Qualified immunity, Reasonable suspicion | Comments Off on M.D.Ga.: No right to challenge SW before execution

CA8: SW issuing judge not “neutral and detached” just because he didn’t ask questions

A search warrant in Killeen, Texas was issued to look for evidence of a Hobbs Act murder in Lincoln, Nebraska. The affidavit combined information from Texas and Nebraska. There was potential confusion as to whose information was whose but it … Continue reading

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CA2: Inventory policy here was attached to pleadings and sufficed

The vehicle inventory search was testified to be within ATF policy, which was attached to the pleadings, and it was. United States v. Brack, 2023 U.S. App. LEXIS 12197 (2d Cir. May 18, 2023). Officers observed two people making likely … Continue reading

Posted in Franks doctrine, Inventory, Probable cause, Waiver | Comments Off on CA2: Inventory policy here was attached to pleadings and sufficed

CA9: SW application made “under penalty of perjury” satisfies the “oath or affirmation” requirement

A search warrant application made “under penalty of perjury” satisfies the “oath or affirmation” requirement. United States v. Morrow, 2023 U.S. App. LEXIS 11933 (9th Cir. May 16, 2023). Defendant prevailed on the merits of his honest services wire fraud … Continue reading

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GA: Grant of Franks motion is subject to de novo review

The court erred in finding a Franks violation without considering whether the challenged representation in the warrant was made knowingly, intentionally, or in reckless disregard for the truth. On de novo review, that the trial court erred in finding there … Continue reading

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TN: Bounty hunter is not a state actor for 4A

A bailbond bounty hunter is not a state actor for the Fourth Amendment. State v. Wojnarek, 2023 Tenn. Crim. App. LEXIS 160 (May 10, 2023). A Delaware JP issued this search warrant, and it was with probable cause. United States … Continue reading

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CA8: Child’s statement there was a gun in felon’s house was PC

Defendant’s child saying “my daddy’s has a gun in there” was sufficient for issuing a search warrant for felon in possession. United States v. Watkins, 2023 U.S. App. LEXIS 11303 (8th Cir. May 9, 2023).* Driving with an allegedly purloined … Continue reading

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D.P.R.: Def’s declaration of a fact dispute didn’t rise to a Franks violation

Defendant’s own declaration that he was outside the apartment when the affidavit said he was inside was just a swearing match, and it didn’t raise a sufficient Franks challenge. United States v. Pierret-Mercedes, 2023 U.S. Dist. LEXIS 79252 (D.P.R. May … Continue reading

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CA10: Def’s response ‘I don’t have a backpack’ was abandonment of the backpack

“Mr. Porter nonetheless attempts to distinguish this case from our other abandonment cases, claiming that in those cases, the defendant’s denial of ownership was clear and unequivocal. But it is hard to imagine a statement plainer than ‘I don’t have … Continue reading

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CA8: Omission of fact CI lied about prior murder for hire schemes wasn’t material enough where one recorded ptf

This was a murder for hire scheme. The affiant had good information that the CI was a notorious liar, having falsely alleged other schemes in the past. Here, however, there was “powerful” evidence of probable cause in recordings to back … Continue reading

Posted in Dog sniff, Franks doctrine, Reasonable suspicion, Seizure | Comments Off on CA8: Omission of fact CI lied about prior murder for hire schemes wasn’t material enough where one recorded ptf

CA4: “[T]he ability to execute a search does not necessarily imply power to execute a search warrant.”

“[T]he ability to execute a search does not necessarily imply power to execute a search warrant.” Osmon v. United States, 2023 U.S. App. LEXIS 9177 (4th Cir. Apr. 18, 2023). Defendant’s Franks motion fails because there’s no offer of proof … Continue reading

Posted in Franks doctrine, Staleness, Warrant execution | Comments Off on CA4: “[T]he ability to execute a search does not necessarily imply power to execute a search warrant.”

CA9: Mere typo in SW affidavit doesn’t support Franks challenge

Defendant’s Franks challenge was conclusory and based on mere typographical errors. United States v. Howard, 2023 U.S. App. LEXIS 9069 (9th Cir. Apr. 17, 2023). Habeas petitioner’s admission of procedural default of his Fourth Amendment claim was an admission there … Continue reading

Posted in Cell phones, Franks doctrine, Inevitable discovery, Issue preclusion | Comments Off on CA9: Mere typo in SW affidavit doesn’t support Franks challenge

CA4: CI’s 911 call showing stress of a startling event was reliable

A CI’s 911 call “‘under the stress of excitement caused by a startling event’ (making the call less likely to be preplanned),” was reliable enough for reasonable suspicion. Torres v. Ball, 2023 U.S. App. LEXIS 9076 (4th Cir. Apr. 17, … Continue reading

Posted in Franks doctrine, Independent source, Informant hearsay | Comments Off on CA4: CI’s 911 call showing stress of a startling event was reliable

M.D.Fla.: Geofence SW decided on GFE alone

In this Hobbs Act robbery case, ATF got a geofence warrant to attempt to isolate who was committing a string of robberies in the Tampa Bay area. Instead of even considering the merits, the court goes directly to the good … Continue reading

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E.D.Va.: Seizing def as he was opening his door was an invasion of the curtilage without exigency

After an attempted traffic stop, following defendant to his front door and stopping him after the screen door was opened in between it and the front door was curtilage, even in an apartment building. There was no exigency justifying the … Continue reading

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NY Orange Co.: Reasonableness of seizure of firearms under 2A and 4A depends on court order, due process, and objective showing of mental impairment

Following another county court, this one also holds that Second Amendment and Fourth Amendment rights are both fundamental and an order removing firearms must be based on finding of mental impairment and due process. R.M. v. C.M., 2023 NY Slip … Continue reading

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OH5: Admission of MJ but no MMJ card was PC

Admission there was marijuana in the car and nobody had a MMJ card was probable cause. State v. Hale, 2023-Ohio-1057, 2023 Ohio App. LEXIS 1025 (5th Dist. Mar. 30, 2023). A conclusory allegation that false information in an affidavit for … Continue reading

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CA7: Prima facie Franks violation made not disclosing CI’s motives; remanded

Defendant made his prima facie case of a Franks violation, and he was entitled to a hearing. The informants were involved in a love quadrangle not revealed to the warrant issuing judge. Analyzing the affidavit sentence by sentence, the omissions … Continue reading

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