In Franks v. Delaware, 438 U.S. 154 (1978), the U.S. Supreme Court held that when a defendant makes a substantial preliminary showing that the police obtained a search warrant with deliberate or reckless misrepresentations in the search warrant affidavit and where such statements were necessary to the finding of probable cause, the 4th Amendment entitles the defendant to an evidentiary hearing to show the warrant was invalid. The question before the trial court becomes “ What evidence does a defendant homeowner need to have to establish the preliminary showing in order to get a Franks hearing?

The trial court can hold a pre-Franks hearing. At the pre-Franks hearing, the defendant can put on evidence to supplement his motion for a Franks hearing. The option to hold a pre-Franks hearing belongs to the court, not the defendant. In Franks V Delaware, Franks was charged with rape. He moved to suppress a knife and clothing on grounds that the police lied in the affidavit in support of the search warrant. The trial court refused to allow Franks the opportunity to call witnesses to establish the police lies. The U.S. Supreme Court reversed his conviction and held that Franks was entitled to be granted a hearing. The defendant’s claim of police lies or mistreatment must be more than just conclusory. In order to get a hearing to try to prove the police lied in their process of getting the search warrant your allegation of deliberate falsehood or reckless disregard for truth must point out specifically with supporting reasons the portion of the search warrant affidavit that is claimed to be false. Your allegation of police lies/misrepresentation must also be accompanied by an offer of proof, including witness affidavits.

If after a hearing you establish by a preponderance of the evidence that a false statement was included in the affidavit by the affiant {the police} knowingly and intelligently or with reckless disregard for the truth and the false statement was necessary to the finding of probable cause then the search warrant is voided . The fruits of the search are suppressed. The fruits of the search is the illegal stuff or evidence the police took from your house. In Franks, the police affidavit claimed the police officer spoke to witnesses who said Franks normally wears clothes as described by the rape victim. The witnesses told Franks’ lawyer that they never spoke with the police {search warrant affiant }. In every search warrant case the defense lawyer must conduct a Franks inquiry .

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