United States of America v. andrew C. Mcduffy

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ARGUED AUGUST 4, 2010

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

Police executed a warrant to search Andrew McDuffy’s home for marijuana and other drugs. They found not marijuana but 11 grams of crack cocaine. McDuffy pled guilty to possessing with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). His conditional guilty plea preserved his right to appeal the district court’s denial of his request for a Franks hearing to contest allegedly mis- leading statements in the affidavit supporting the search warrant. See Franks v. Delaware, 438 U.S. 154 (1978). The affidavit stated that the police had recently found discarded marijuana in his trash, but it did not mention that the amount found was one small flake of a leaf. McDuffy argues that this quantity was insufficient to establish probable cause to search his home for additional drugs. The affidavit’s failure to mention quantity and the issuing judge’s apparent failure to ask about quantity do not seem to be the most sound practice, but we believe that even if the tiny amount had been included, the entire affidavit still would have provided probable cause to support the search of McDuffy’s home. The district court did not err in denying a Franks hearing, and we affirm the court’s judgment.

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