Attacking Search Warrants with a Franks Hearing
In many criminal investigations, law enforcement officials apply for a search warrant from the court in order to obtain evidence that can later be used by the prosecution to obtain a conviction. In Kentucky and every other state, search warrants are used routinely to search homes, offices, vehicles, cell phones, computers, and other private property during investigations involving drug crimes, assault, DUI, and many other offenses.
Before the court will grant a search warrant, law enforcement must present an affidavit to the judge to show that probable cause exists to authorize a search. The probable cause requirement stems from the prohibition on unreasonable searches and seizures as stated in the Fourth Amendment to the U.S. Constitution.
The problem with search warrants is they are obtained from the court without the knowledge of the individual targeted for the search. Essentially, a judge or magistrate reviews the affidavit presented by the police officer and has to rely on the officer’s word that all the information presented in the affidavit is correct. During this process, the target of the search has no opportunity to challenge this information.
Fortunately, there are some ways to effectively attack the evidence seized by law enforcement through a search warrant, which could result in the suppression of important evidence, and a reduction in charges or a dismissal of the case. For example, it could be argued that law enforcement went beyond the scope of what was authorized in the warrant, or that the warrant clearly didn’t establish probable cause.
Another way to attack the evidence obtained through a warrant is to attack the validity of the affidavit used to obtain the warrant in the first place. This is done by showing that the affiant intentionally included false or misleading information that was material to the finding of probable cause. This is commonly referred to as a “Franks” challenge, which asks the court to hold a “Franks” hearing to resolve the question.
What is a “Franks” Hearing?
A “Franks” Hearing is a proceeding in which the court is asked to determine if an affidavit was falsified or contained misleading information that was used to obtain the search warrant. The term originates from the 1978 U.S. Supreme Court case Franks v. Delaware, 438 U.S. 154. In this case, the Supreme Court held the following:
Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant’s request…
The Court went on to say:
If, after a hearing, a defendant establishes by a preponderance of the evidence that the false statement was included in the affidavit by the affiant knowingly and intentionally, or with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, then the search warrant must be voided, and the fruits of the search excluded from the trial to the same extent as if probable cause was lacking on the face of the affidavit.
This means that if a defendant can show that an affiant knowingly and intentionally provided false and misleading information to obtain a warrant, a “Franks” Hearing can be held. And during the hearing, two things must be established:
- The false information was included in the affidavit knowingly and intentionally or without regard for the truth (i.e., in bad faith); and
- The false information was necessary for a finding of probable cause.
If these two points are established, then the search warrant must be voided, and any evidence obtained through the search (commonly referred to as the “fruit of the poisonous tree”) must be excluded from the trial.
It should be noted that if the court finds that probable cause still exists after the falsified information is set aside, the search warrant and all evidence obtained from it is still valid:
If these requirements as to allegations and offer of proof are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required…
This means that the falsified information has to make a material difference in the finding of probable cause, and minor and/or technical mistakes are not enough. A good illustration of this point is the Michigan case People V. Manning (2013). In this case, the defendant argued that the search warrant had erroneously listed his first name as “Marcellus” rather than “Marcus”, and that the photo of another party involved was not submitted to the other party’s family to verify her identity.
In denying the defendant’s request for a “Franks” hearing, the court held that, regardless of the mistaken first name, there was still probable cause that a person with the last name “Manning” was committing a crime, and that probable cause would have existed even if no first name was listed on the affidavit at all. The court refuted the second point by stating that the defendant failed to present any controlling legal authority that required law enforcement to have the identity of the party in the photograph verified by a member of her family.
Using a “Franks” Hearing Defense
Though a “Franks” Hearing can be a viable defense strategy for attacking a search warrant, it can be very challenging to prevail with this type of defense. The primary reason is that a search warrant which is obtained with an affidavit presented by law enforcement and signed off on by a judge or magistrate is presumed to have been done in good faith. Therefore, showing the intentional presentation of false information is a high hurdle to overcome. Furthermore, you must also show that the misinformation was necessary for a finding of probable cause for a search. If you believe you might have a potential “Franks” defense, be sure to talk this over with an experienced criminal defense lawyer to find out if this is the right strategy, or if there are better options based on the specific circumstances of your case.
Contact a Seasoned Kentucky Criminal Defense Attorney
Attorney Ron Aslam has extensive experience successfully defending individuals charged with all types of criminal offenses in Kentucky. Attorney Aslam has vast knowledge of this area of law, and an in-depth understanding of the most effective defense strategies to mitigate the circumstances as much as possible. Call our office today at 502-581-1676 to schedule an initial consultation, or you may send us a secure and confidential message through our online contact form.