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  • Michael M. Stover

Attacking the Validity of a Search Warrant by Showing Malice or Reckless Disregard for Truth

Updated: Jan 10, 2020

This guide will show you how to pinpoint and attack contradictions and falsehoods in a warrant affidavit.

YOU CAN REALLY ATTACK A WARRANT BECAUSE OF THE POLICE LYING!?


Yes Yes Yes. “In certain circumstances, a challenge to a warrant's veracity must be permitted” Franks v. Delaware, 438 U.S. 154, 164 (1978)" No Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . .” United States v. Halsey, 257 F. Supp. 1002, 1005 (SDNY 1966), aff'd, Docket No. 31369 (CA2, June 12, 1967), to put the matter simply: "[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,' the obvious assumption is that there will be a truthful showing" (emphasis in original). Franks v. Delaware, 438 U.S. 154, 164-65 (1978). To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Franks v. Delaware, 438 U.S. 154, 171 (1978). Once that burden is met, the Defense must show by a preponderance of the evidence, that with the omission of the afflicted statements, probable cause would no longer exist to search the premises or conveyance at issue. Id. At that point, the warrant, and the fruits thereof would be suppressed. “Police [may] not insulate one officer's deliberate misstatement by relaying it through an affiant ignorant of its falsity.” Franks v. Delaware, 438 U.S. 154, 164 n.6 (1978).

So how do I get a hearing?

To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Franks v. Delaware, 438 U.S. 154, 171 (1978). Once that burden is met, the Defense must show by a preponderance of the evidence, that with the omission of the afflicted statements, probable cause would no longer exist to search the premises or conveyance at issue. Id. At that point, the warrant, and the fruits thereof would be suppressed. “Police [may] not insulate one officer's deliberate misstatement by relaying it through an affiant ignorant of its falsity.” Franks v. Delaware, 438 U.S. 154, 164 n.6 (1978).

What do I have to show?

There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. Franks v. Delaware, 438 U.S. 154, 171 (1978). Once that burden is met, the Defense must show by a preponderance of the evidence, that with the omission of the afflicted statements, probable cause would no longer exist to search the premises or conveyance at issue. Id. At that point, the warrant, and the fruits thereof would be suppressed. “[P]olice [may] not insulate one officer's deliberate misstatement by relaying it through an affiant ignorant of its falsity.” Franks v. Delaware, 438 U.S. 154, 164 n.6 (1978).

What If we win?

At that point, the warrant, and the fruits thereof would be suppressed. “Police [may] not insulate one officer's deliberate misstatement by relaying it through an affiant ignorant of its falsity.” Franks v. Delaware, 438 U.S. 154, 164 n.6 (1978).

Example (Franks v. Delaware)

In "Franks v. Delaware, 438 U.S. 154, 165 (1978), law enforcement asserted, in an affidavit for search warrant, that a statement given regarding the clothing that the Defendant normally wears was made directly to the affiant of the search warrant. In fact, the affiant never interviewed the individual, and the statement was based on hearsay from another officer that was “somewhat different” from the actual statement made by the witness. Id. at 166. The Court held that any statement found to be a misrepresentation directly places the credibility of the search warrant affidavit in question, and that misrepresentation should prompt the Court to hold a hearing determining the implications of the falsehood. Franks at 167. I deliberately did not include the outcome of Franks because it is a very fact specific inquiry. BOTTOM LINE: YOU BETTER MAKE SURE YOU HAVE THE BEST HAND POSSIBLE TO PROCEED ON THIS AVENUE.


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