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E.D.Tenn.: In Franks challenge, court does not look beyond the affidavit

By John Wesley Hall, Jr.

In a Franks challenge, the court should not look beyond the affidavit and what it shows. A CD was proffered into evidence which the court did not listen to because it went beyond the scope of the court’s standard of review. United States v. Buis, 2009 U.S. Dist. LEXIS 126967 (E.D. Tenn. May 8, 2009): Generally, in determining the sufficiency of the search warrant affidavit, the Court is "concerned only with the statements of fact contained in the affidavit." United States v. Hatcher, 473 F.2d 321, 323 (6th Cir. 1973); see also Whiteley v. Warden, 401 U.S. 560, 565 (1971). In reviewing the propriety of the search warrant, the Court considers "the evidence that the issuing magistrate had before him only 'to ensure that [he] ha[d] a substantial basis ...continue to full post

Full post as published by Fourth Amendment on May 12, 2010 (boomark / email).