Category Archives: Franks doctrine

D.N.J.: Holding a vehicle 4 days before searching it was not unreasonable

“While law enforcement held the Durango for four days after the seizure before searching it pursuant to a warrant, this delay did not render the continuing seizure of the Durango unreasonable. See Donahue, 764 F.3d at 300-01 (collecting cases and … Continue reading

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W.D.N.Y.: 4A doesn’t protect a jail cell shakedown search; procedural due process does not apply

Defendant’s jail cell was subjected to a shakedown search, and it was reasonable. His claim of procedural due process safeguards come from civil cases and don’t apply. United States v. Arrington, 2022 U.S. Dist. LEXIS 142770 (W.D.N.Y. Aug. 10, 2022). … Continue reading

Posted in Franks doctrine, Good faith exception, Prison and jail searches, Probable cause | Comments Off on W.D.N.Y.: 4A doesn’t protect a jail cell shakedown search; procedural due process does not apply

D.V.I.: Boat without lights at night is subject to stop

A boat operating at night without lights in U.S. Customs waters violates federal law and it is subject to stop. United States v. Romero-Amaro, 2022 U.S. Dist. LEXIS 140477 (D.V.I. Aug. 8, 2022). In the tire chalking case, nominal damages … Continue reading

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CA5: An intimidating police presence is not a seizure

An intimidating police presence is not a seizure. Tyson v. Cty. of Sabine, 2022 U.S. App. LEXIS 20902 (5th Cir. July 28, 2022). Defense counsel can’t be ineffective for not taking depositions in his criminal case to develop his search … Continue reading

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TX finally approves of anticipatory warrants

Texas high court finally approves of anticipatory warrants. Parker v. State, 2022 Tex. Crim. App. LEXIS 470 (July 27, 2022). On his motion for reconsideration, defendant’s Franks challenge still fails. There’s probable cause without the challenged information. “Courts long have … Continue reading

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D.Md.: Cell phone dump on a SW wasn’t shown to be overbroad

A cell phone dump after a search warrant wasn’t necessarily overbroad, and didn’t show it. “More particularity was impractical, and was not required.” United States v. Nelson, 2022 U.S. Dist. LEXIS 125994 (D. Md. July 15, 2022). Officers who used … Continue reading

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DE: People inside isn’t exigency for nighttime SW

The justification for a nighttime search warrant was insufficient as a matter of law. The mere presence of people in the house is not exigency. State v. Harrison, 2022 Del. Super. LEXIS 302 (July 14, 2022). The USMJ found defendant … Continue reading

Posted in Automobile exception, Cell site simulators, Dog sniff, Franks doctrine, Nighttime search | Comments Off on DE: People inside isn’t exigency for nighttime SW

CA8: Omission of a fact not yet known is not a Franks violation

A detective’s omission of a critical fact that was not yet known is not a Franks violation. “What is undisputed, at least at this point, is that Detective Bowles did not actually know that the fire captain had described the … Continue reading

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S.D.Ind.: Inordinate delay in producing cell phone search discovery doesn’t justify dismissal

The government’s untimely discovery response to defendant’s repeated requests for the product of his cell phone search doesn’t warrant dismissal of the indictment. Probable cause was shown for the cell phone search, and the motion to suppress is denied. United … Continue reading

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E.D.Tenn.: Lack of forensic testing of drug from controlled buy is not a Franks issue

“Lack of scientific corroboration” defendant delivered a controlled substance is not a Franks violation. United States v. Moore, 2022 U.S. Dist. LEXIS 111382 (E.D. Tenn. June 23, 2022).* “Here, under the totality of the circumstances, the Court finds that a … Continue reading

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OH8: Disavowing reliance on Franks at suppression hearing is waiver

Defendant’s disavowing the search issue in his motion to suppress involved Franks is waiver for appeal. The state sought clarification it wasn’t an issue and got it. State v. Claytor, 2022-Ohio-1938, 2022 Ohio App. LEXIS 1812 (8th Dist. June 9, … Continue reading

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D.Ore.: Officer may be cross-examined at trial over contents of SW affidavit if relevant

“The Court denies the Government’s motion to prohibit Defendant from cross-examining IRS Special Agent Jason Nix on his sworn statements contained in a search warrant application. See ECF 100 at 13-15. Defendant may cross examine Special Agent Nix regarding any … Continue reading

Posted in Admissibility of evidence, Excessive force, Franks doctrine, Qualified immunity | Comments Off on D.Ore.: Officer may be cross-examined at trial over contents of SW affidavit if relevant

TX13: Gated community not curtilage, but def’s own curtilage was violated

Where the officers followed defendant into a gated community, the roadway within was not curtilage. Evans v. State, 995 S.W.2d 284, 286 (Tex. App.—Houston (14th Dist.) 1999, pet. ref’d). However, the entry into defendant’s own curtilage was unreasonable. State v. … Continue reading

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D.Minn.: Alleged alibi wasn’t enough for Franks challenge here

Defendant wasn’t entitled to a Franks hearing by attempting to show that he had an alibi for only one controlled buy at issue, which wasn’t quite good enough anyway for probable cause. United States v. Washington, 2022 U.S. Dist. LEXIS … Continue reading

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D.Minn.: Tracking warrant issued without PC, but GFE still applied

There was no probable cause for the tracking warrant for defendant. But, it was not so lacking in probable cause that the good faith exception does not apply. United States v. Escudero, 2022 U.S. Dist. LEXIS 89120 (D.Minn. May 18, … Continue reading

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CA7: Despite govt’s not raising abandonment, the court finds it anyway

The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does … Continue reading

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W.D.Va.: Knock-and-announce isn’t required when no one home

Defense counsel wasn’t ineffective for not challenging execution of the search warrant without knocking and announcing. First, the homeowner wasn’t there; he was in the hospital. Second, Hudson doesn’t permit that challenge under the exclusionary rule. Brown v. Clarke, 2022 … Continue reading

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N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

Defendant didn’t fairly articulate his objections to the R&R, so his objection is waived. United States v. Hill, 2022 U.S. Dist. LEXIS 83707 (N.D.Ga. May 9, 2022). There was probable cause for this search authorization, and the good faith exception … Continue reading

Posted in Exclusionary rule, Franks doctrine, Ineffective assistance, Issue preclusion, Military searches, Probation / Parole search, Reasonable suspicion, Waiver | Comments Off on N.D.Ga.: Pro forma objection to R&R doesn’t articulate argument, so it’s waived

CA10: “[N]o exclusionary rule for evidence gained through … entrapment”

“[T]here is no exclusionary rule for evidence gained through conduct later deemed to be entrapment.” United States v. Christian, 754 Fed. Appx. 747, 750 (10th Cir. 2018). United States v. Christian, 2022 U.S. App. LEXIS 12255 (10th Cir. May 6, … Continue reading

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D.Md.: Def gets a hearing on a Franks challenge to a red-flag SW that produced 42 firearms

Maryland provides for “Extreme Risk Protective Orders” (“ERPO”) to seize firearms from unstable persons. [These are know as red-flag laws in some other states.] “The ERPO law establishes a framework by which persons found to pose an immediate danger to … Continue reading

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