{"id":40276,"date":"2019-10-19T06:24:20","date_gmt":"2019-10-19T11:24:20","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=40276"},"modified":"2019-10-19T07:29:47","modified_gmt":"2019-10-19T12:29:47","slug":"ca5-franks-doesnt-neatly-apply-to-%c2%a7-1983-because-the-question-there-is-just-probable-cause","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=40276","title":{"rendered":"CA5: Franks<\/em> doesn’t neatly apply to \u00a7 1983 because the question there is just probable cause"},"content":{"rendered":"

Plaintiff was arrested for capital murder based on an affidavit for arrest that omitted serious doubts about the eyewitness\u2019s identification. Later, the charge was dropped, and plaintiff sued the affiant for a \u201ccivil Franks violation.\u201d Franks doesn\u2019t neatly apply in a \u00a7 1983 case because the ultimate question is just probable cause, and here they had it. Jones v. Perez<\/a>, 2019 U.S. App. LEXIS 30946 (5th Cir. Oct. 16, 2019):
\n<\/p>\n

These facts are enough to clear the probable cause bar. That standard does not require that the officer believe that it is more likely than not that the suspect committed the offense. See United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001). Instead, the officer must reasonably believe there was a “fair probability” he did. Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (per curiam) (quotation omitted). That fair probability of criminal conduct usually exists just from the statement of a single eyewitness, assuming no reliability concerns. See Phillips v. Allen, 668 F.3d 912, 915 (7th Cir. 2012) (“Identification by a single eyewitness who lacks an apparent grudge against the accused person supplies probable cause for arrest.”); Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (“When information is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person’s veracity[.]” (citation omitted)). The numerous problems with Miller’s statement may well have reduced its reliability below the probable cause threshold, though that is a close call as the district judge believed it was still sufficient to establish probable cause. But then there is the false alibi and Jones’s girlfriend’s placing him near the crime. A false alibi is, of course, quite suspicious. See House v. Bell, 547 U.S. 518, 551 (2006). This other evidence at least partially corroborated Miller’s statement and put the overall evidentiary mix back at the level of probable cause even if the information in a reconstructed affidavit would not have sufficed.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Plaintiff was arrested for capital murder based on an affidavit for arrest that omitted serious doubts about the eyewitness\u2019s identification. Later, the charge was dropped, and plaintiff sued the affiant for a \u201ccivil Franks violation.\u201d Franks doesn\u2019t neatly apply in … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[45,21],"tags":[],"class_list":["post-40276","post","type-post","status-publish","format-standard","hentry","category-45","category-franks-doctrine"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40276","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=40276"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40276\/revisions"}],"predecessor-version":[{"id":40282,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/40276\/revisions\/40282"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=40276"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=40276"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=40276"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}