{"id":4035,"date":"2011-12-28T12:24:22","date_gmt":"2010-04-06T06:52:31","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-06T06:52:31","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=4035","title":{"rendered":"CAAF: Military child porn search warrant survives Franks<\/em> challenge"},"content":{"rendered":"

A factual misstatement in the CID affidavit for the search warrant for defendant\u2019s computer survived a Franks<\/a> challenge because there still was probable cause after omitting it. United States v. Clayton, 68 M.J. 419 (C.A.A.F. 2010),* aff’g United States v. Clayton, 2008 CCA LEXIS 599 (A. Ct. Crim. App. May 9, 2008) (unpublished).<\/p>\n

Defense counsel was not ineffective for not raising a search issue on appeal because it would clearly lose. From the Sixth Amendment perspective, defense counsel \u201cwinnowed\u201d out the weaker arguments to concentrate on the strong ones. Lynch v. United States, 2009 U.S. Dist. LEXIS 126413 (N.D. W.Va. August 10, 2009)*:<\/p>\n

In this case, the petitioner has not overcome the presumption that appellate counsel merely \u201cwinnowed\u201d out the weaker arguments on appeal to focus on those that he felt were more likely to prevail. Moreover, the petitioner has failed to show that the \u201cignored\u201d claim was clearly stronger than those raised. At best, the petitioner has shown that this claim could have been raised on direct appeal, not that it should have been raised, or that it was more meritorious than those presented.<\/p><\/blockquote>\n

[Courts usually just say the omitted issue was a loser so no prejudice and no IAC. Here, the court looked to Smith v. Murray, too.]<\/p>\n

Defendant\u2019s traffic stop was justified, and he consented to a search thereafter. United States v. Summers, 2010 U.S. Dist. LEXIS 32637 (D. Neb. March 9, 2010).*<\/p>\n

Nervousness and furtive movements in the car justified getting the driver and passengers out of the car. People v. Magras<\/a>, 54 V.I. 3 (Super. Ct. 2010).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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