Tahawwur Hussain Rana, who has been recently convicted on two counts of providing support to terrorism in the Denmark plot and to LeT with co-accused David Coleman Headley, has asked the judge to conduct another hearing in his case.
Rana, through his attorney Patrick W Blegen, has requested judge Harry D Leinenweber to conduct a 'Franks hearing' in which the statements made by police officers in an affidavit that was used to obtain a search warrant in which evidence incriminated him are false and constitute perjury or reckless disregard for truth.
Rana's residence was searched based on statements made by Headley and those statements are not credible, the documents state.
So Rana's house was not searched based on truthful evidence.
Because of the omissions, the magistrate judge reviewing the affidavit was left entirely unaware of evidence exculpating Rana.
Moreover, the government's own qualms about Headley's credibility were also hidden, the documents say.
Whether a witness is credible is an independent consideration for the magistrate.
Veracity, reliability, and basis of knowledge are extremely relevant factors in deciding whether a tip can support probable cause.
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence.
Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.
By omitting all references to Headley's exculpatory statements regarding Rana, the affidavit denied Rana the protection of a neutral magistrate’s determination whether, as a whole, the evidence was sufficient to amount to probable cause.
"WHEREFORE, Defendant requests that the court conduct a Franks hearing and then enter its order suppressing as evidence in this, or any other criminal proceeding, any and all evidence, or fruits derived there from, obtained as a result of the search of Defendant’s home and businesses, the documents signed by Rana's attorney Patrick Blegen stated.