E.D.N.C.: Defendant doesn’t get additional discovery in his quest to get a Franks hearing

Defendant doesn’t get additional discovery in his quest to get a Franks hearing. He has the burden of going forward and of proof. And, even if what he says is true, the probable cause isn’t sufficiently undermined. United States v. Robertson, 2019 U.S. Dist. LEXIS 207060 (E.D. N.C. Dec. 2, 2019).

“Assuming counsel’s failure to file a timely motion for a Franks hearing satisfies the performance prong of the Strickland test, the Defendant nonetheless has failed to demonstrate that he suffered any prejudice as a result of such failure. First, the Defendant does not contend that any information contained in the Affidavit submitted in support of the Application for Search Warrant, ECF No. 131-1, was false. Instead, he contends that the Affidavit should have stated that no contraband was found at his home pursuant to a search on July 1, 2015, and that the business premises to be searched contained two separate business operations; and should have specified which business within the premises was to be searched. This Court cannot infer that any such omissions were deliberate or reckless, nor that the warrant would have been denied or worded in a substantially different manner but for such omissions. See Franks, 483 U.S. at 155-56.” United States v. De La Torre, 2019 U.S. Dist. LEXIS 206973 (D. Neb. Dec. 2, 2019).*