{"id":9556,"date":"2013-10-05T09:41:24","date_gmt":"2013-10-05T09:09:22","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-10-05T09:09:22","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9556","title":{"rendered":"D.Nev.: Franks<\/em> violation proved, and search suppressed"},"content":{"rendered":"

Franks<\/a> violation proved, and search suppressed: The officer had 11 days to prepare the search warrant and reckless or worse put in false facts, and the court decides that rehabilitation of the affidavit would be unwise and encourage Franks violations. Reevaluation with other inculpatory and omitted exculpatory evidence leaves it wanting. United States v. Gaines, 2013 U.S. Dist. LEXIS 143853 (D. Nev. October 4, 2013), R&R 2013 U.S. Dist. LEXIS 143849 (D. Nev. June 19, 2013):<\/p>\n

<\/p>\n

This Court does not accept the Findings and Recommendation, in part, because additional inculpatory facts were inserted into the affidavit which had not been contained in the original affidavit. While the Court agrees that there certainly existed sufficient probable cause had Det. Edge provided the magistrate with no misleading information and only the accurate information; unfortunately, the existence of such information cannot save an affidavit that violates Franks. The inquiry for Franks purposes is not one about how the affidavit can be perfected. An affidavit with knowing falsehoods in it should not be open to rehabilitation. To hold otherwise would encourage rather than discourage law enforcement to provide magistrates with misrepresentations thereby usurping the “function of the issuing magistrate to determine the reliability of information and credibility of affiants in deciding whether the requirement of probable cause has been met.” 438 U.S. 160. Det. Edge’s conduct prevented the magistrate from exercising its important role as an independent authority. Her interference with the Court’s responsibility to ensure that a person’s constitutional right to be free of all searches and seizures, except those authorized by a warrant based upon probable cause, undermined the integrity of the judicial system requiring the remedy provided in Franks.<\/p>\n

This Court finds that upon reassessment of the correctly modified affidavit above, a reasonable magistrate would not have been provided with a substantial basis for concluding that probable cause existed to issue the search warrant which led to the discovery and seizure of the firearms and the ammunition.<\/p>\n

Accordingly, the Findings and Recommendations (ECF No. 42) are REJECTED, in part, and the Defendant’s Motion to Suppress (ECF No. 18) is GRANTED. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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