Category Archives: Franks doctrine

W.D.Ky.: SW affidavit does not have to negate affirmative defenses under Franks

Under Franks, an affidavit for a search warrant does not have to negate a possible affirmative defense. United States v. Pascoe, 2024 U.S. Dist. LEXIS 119992 (W.D. Ky. July 9, 2024). There was probable cause for defendant’s arrest for DUI … Continue reading

Posted in Franks doctrine, Ineffective assistance, Probable cause | Comments Off on W.D.Ky.: SW affidavit does not have to negate affirmative defenses under Franks

S.D.Ohio: Def was entitled to discovery of body camera footage of how a search was conducted

Defendant was entitled to discovery of body camera footage of how a search was conducted. United States v. Moore, 2024 U.S. Dist. LEXIS 119486 (S.D. Ohio July 2, 2024). The fact a Sixth Circuit judge dissented on a similar issue … Continue reading

Posted in Body cameras, Discovery, Franks doctrine, Ineffective assistance | Comments Off on S.D.Ohio: Def was entitled to discovery of body camera footage of how a search was conducted

KS: Extending stop on a hunch lacked RS

“LaGuardia argues that Officer Opperman lacked reasonable suspicion to extend the stop from a crash report to a DUI investigation. He claims that the officer investigated LaGuardia for DUI only because he abandoned his vehicle after the accident in snowy … Continue reading

Posted in Franks doctrine, Reasonable suspicion | Comments Off on KS: Extending stop on a hunch lacked RS

NE: Return of property denied where post-conviction time hadn’t run

Defendant’s motion for return of property is denied because the time hasn’t run for post-conviction and it still may be needed by the state. State v. Assad, 317 Neb. 20 (July 5, 2024). Defendant did not present a real Franks … Continue reading

Posted in Arrest or entry on arrest, Franks doctrine, Plain view, feel, smell, Rule 41(g) / Return of property | Comments Off on NE: Return of property denied where post-conviction time hadn’t run

NC: Wife had sufficient common authority over cell phone to consent to seizure and search

Defendant allowed his cell phone to be used by everyone in the family, including his child to watch YouTube videos. His wife had sufficient common authority to consent to a seizure and search. State v. Duran-Rivas, 2024 N.C. App. LEXIS … Continue reading

Posted in Apparent authority, Cell phones, Franks doctrine, Reasonable suspicion | Comments Off on NC: Wife had sufficient common authority over cell phone to consent to seizure and search

CA3 en banc: Driving to controlled buys from house gave PC for house

Controlled buys that defendant drove to still gave probable cause for search of his house. The probable cause bar isn’t that high. United States v. Sanders, 2024 U.S. App. LEXIS 15832 (6th Cir. June 28, 2024) (en banc) (an unnecessarily … Continue reading

Posted in Franks doctrine, Nexus, Probable cause, Probation / Parole search | Comments Off on CA3 en banc: Driving to controlled buys from house gave PC for house

Air Force: Court martial access to government-owned records is not a 4A issue

Court martial access to government-owned records is not a Fourth Amendment issue. In re AG, 2024 CCA LEXIS 256 (A.F. Ct. Crim. App. June 28, 2024). “Based on the foregoing, Craine was not entitled to a Franks hearing because he … Continue reading

Posted in Franks doctrine, Third Party Doctrine | Comments Off on Air Force: Court martial access to government-owned records is not a 4A issue

CT: Pretrial detainees still have no REP in jail calls

There is no constitutional distinction between pretrial detainees and convicts in a jail for the reasonable expectation of privacy in telephone calls on a jail line phone they knew was recorded. State v. Bember, 2024 Conn. LEXIS 153 (June 25, … Continue reading

Posted in Computer and cloud searches, Franks doctrine, Particularity, Prison and jail searches, Reasonable suspicion | Comments Off on CT: Pretrial detainees still have no REP in jail calls

S.D.Miss.: Drug SW permitted search of a safe even though not specified

This drug search warrant didn’t mention a safe, but that was a place where they could be found, so the search was proper. Also, the good faith exception applies. United States v. Manning, 2024 U.S. Dist. LEXIS 109676 (S.D. Miss. … Continue reading

Posted in Franks doctrine, Good faith exception, Motion to suppress, Probation / Parole search, Scope of search | Comments Off on S.D.Miss.: Drug SW permitted search of a safe even though not specified

CA5: Exigency is measured objectively, not subjectively

“Borden argues the officers’ actions indicate they did not actually think a medical emergency existed, but their subjective beliefs are irrelevant. See Toussaint, 838 F.3d at 509. Given the totality of the circumstances, a reasonable view of the evidence supports … Continue reading

Posted in Emergency / exigency, Franks doctrine, Stop and frisk | Comments Off on CA5: Exigency is measured objectively, not subjectively

N.D.Cal.: Defendant succeeds in getting hearing on a Franks challenge

Defendant succeeds in getting hearing on a Franks challenge, making the “substantial preliminary showing.” United States v. Ardis, 2024 U.S. Dist. LEXIS 106369 (N.D. Cal. June 14, 2024)*: However, the Court does find that defendant has made a substantial preliminary … Continue reading

Posted in Franks doctrine | Comments Off on N.D.Cal.: Defendant succeeds in getting hearing on a Franks challenge

NY3: Typo in SW affidavit could be overlooked when context is apparent

A typographical error in the statement of probable cause could be overlooked when the affidavit is read as a whole, which is what the court is supposed to do. People v. Malloy, 2024 NY Slip Op 03203, 2024 N.Y. App. … Continue reading

Posted in Franks doctrine, Mail and packages, Probable cause, Warrant papers | Comments Off on NY3: Typo in SW affidavit could be overlooked when context is apparent

E.D.Ky.: No PC for SW to test keys in a lock; only RS at most

Keys were found on the passenger seat of a pickup searched parked where a warrant was executed. A separate search warrant was obtained for the keys to determine whether they worked in the house lock. Plain view was argued. But, … Continue reading

Posted in Franks doctrine, Plain view, feel, smell | Comments Off on E.D.Ky.: No PC for SW to test keys in a lock; only RS at most

ID: Still reasonable to rerun LPN information during stop, having done it earlier in day

Earlier in the day before the traffic stop, the officer had already run defendant’s LPN. It was reasonable to do it again during the stop, and this did not unconstitutionally lengthen the stop. State v. Tranmer, 2024 Ida. App. LEXIS … Continue reading

Posted in Franks doctrine, Good faith exception, Probable cause, Reasonable suspicion | Comments Off on ID: Still reasonable to rerun LPN information during stop, having done it earlier in day

OH10: Alleged violation of prosecutor’s subpoena power not subject to exclusionary rule; also, subject matter was third party record

A violation of the state prosecuting attorney’s subpoena power in felony cases was not subject to the exclusionary rule. In addition, obtaining third party information from an IP address is not a search. State v. Diaw, 2024-Ohio-2237, 2024 Ohio App. … Continue reading

Posted in Exclusionary rule, Franks doctrine, Independent source, Subpoenas / Nat'l Security Letters, Third Party Doctrine | Comments Off on OH10: Alleged violation of prosecutor’s subpoena power not subject to exclusionary rule; also, subject matter was third party record

D.Mont.: A helpful summary of how to look at a potential Franks challenge

United States v. Howard, 2024 U.S. Dist. LEXIS 101989 (D. Mont. June 7, 2024):

Posted in Franks doctrine | Comments Off on D.Mont.: A helpful summary of how to look at a potential Franks challenge

CA10: No REP in fire scene premises totally destroyed

Taking of photographs of a fire scene of a mobile home that burned to the ground was not a Fourth Amendment violation. There was no reasonable expectation of privacy in the remains. United States v. Hernandez, 2024 U.S. App. LEXIS … Continue reading

Posted in Abandonment, Franks doctrine, Reasonable expectation of privacy | Comments Off on CA10: No REP in fire scene premises totally destroyed

D.Nev.: A website’s cookies linked def’s personal email address for nexus

In a criminal copyright case, cookies on website led to defendant’s business and personal email accounts, and that gave nexus to them for the warrant. “Under the totality of the circumstances, the Court finds that the search warrant reveals a … Continue reading

Posted in Cell phones, Computer and cloud searches, Franks doctrine, Nexus, Particularity | Comments Off on D.Nev.: A website’s cookies linked def’s personal email address for nexus

GA: Merely having a traffic accident doesn’t justify SW for car for cause

Probable cause didn’t exist for a warrant to search defendant’s car after a traffic accident for the cause of the accident. “Here, given the circumstances as they existed when the search warrant was issued, we find that the magistrate did … Continue reading

Posted in Franks doctrine, Ineffective assistance, Probable cause | Comments Off on GA: Merely having a traffic accident doesn’t justify SW for car for cause

RI: REP in a police interrogation room when he was led to believe conversation with mother was private

Defendant had a reasonable expectation of privacy in a police interrogation room while he was talking to his mother under both the Fourth Amendment and the state constitution when he was led to believe it was private. “Finally, the state … Continue reading

Posted in Franks doctrine, Pole cameras, Reasonable expectation of privacy | Comments Off on RI: REP in a police interrogation room when he was led to believe conversation with mother was private