Getting a Franks hearing
A defendant earns an evidentiary hearing only by making "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 that the statement "is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155–156 (1978)1
- More than conclusory — "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." The affidavit carries "a presumption of validity." Franks v. Delaware, 438 U.S. 154, 171 (1978)1
- Specific offer of proof — The motion must point out specifically the portion of the affidavit claimed to be false, give supporting reasons, and furnish "[a]ffidavits or sworn or otherwise reliable statements of witnesses," or explain their absence. Franks v. Delaware, 438 U.S. 154, 171 (1978)1
- Deliberate or reckless — by the affiant — "Allegations of negligence or innocent mistake are insufficient," and the falsity must be the affiant's, "not of any nongovernmental informant." Franks v. Delaware, 438 U.S. 154, 171 (1978)1
- Materiality — Set the challenged material aside; if what remains still supports probable cause, "no hearing is required." If not, the defendant is entitled to a hearing. Franks v. Delaware, 438 U.S. 154, 171–172 (1978)1
- At the hearing — If the defendant proves deliberate or reckless falsity by a preponderance of the evidence and the remaining content does not establish probable cause, "the search warrant must be voided and the fruits of the search excluded." Franks v. Delaware, 438 U.S. 154, 156 (1978)1
- Omissions — Courts of appeals extend Franks to omitted facts: the defendant must show the affiant omitted material facts "with the intent to make, or in reckless disregard of whether [he] thereby made, the affidavit misleading," and that including them "would defeat probable cause." United States v. Shorter, 328 F.3d 167, 170–71 (4th Cir. 2003)2
Practice notes
- In an omission case, "the fact of an omission, standing alone, is not sufficient to demonstrate intent or reckless disregard" — supply independent evidence of the affiant's state of mind. United States v. Shorter, 328 F.3d 167, 170–71 (4th Cir. 2003)2
- Clearing the threshold only gets the hearing: "Whether he will prevail at that hearing is, of course, another issue." Franks v. Delaware, 438 U.S. 154, 172 (1978)1