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D.S.D.: Defendant succeeds on Franks motion; affidavit can't be rehabilitated

By John Wesley Hall, Jr.

A gap in the information linking an IP address to defendant was sufficient to make a Franks showing for a hearing. The officer stated something as a fact when it was his deduction. The government does not get to rehabilitate the affidavit; all that can be done is strike the offending information. The information was necessary to the finding of probable cause, and the magistrate’s grant of the motion for a Franks hearing. United States v. Nelson, 2010 U.S. Dist. LEXIS 70317 (D. S.D. July 12, 2010): Similarly, in this case, Agent Boone misled the issuing judge by misrepresenting his own analysis and conclusion regarding the identity of the subscriber associated with the suspected file-sharing activity as a factual statement made by Knology...continue to full post

Full post as published by Fourth Amendment on July 17, 2010 (boomark / email).