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What Is Traversing a Warrant (a Franks Motion)?

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Dec 26, 2023 #Franks Motion, #lack of probable cause, #Malicious Procurement of A Arrest Warrant, #Malicious Procurement of A Search or Arrest Warrant, #Malicious Procurement of A Search Warrant, #Misuse of the Warrant System, #Penal Code 170, #Traversing a Warrant, #What Is Traversing a Warrant (a Franks Motion)?

WHAT IS A FRANKS MOTION AND HEARING IN CALIFORNIA?

Brief Synopsis: To have the judge in a case order the production of the affidavit used to secure a search warrant, one can file a “Franks” motion to “traverse” the warrant, or review it, like traversing a hillside. If the affidavit is demonstrably false, the warrant may have been improperly obtained and the evidence seized therefrom suppressed, which may lead to dismissal of the case.

Traversing a warrant means challenging the affidavit and the information therein as false. Franks v. Delaware (1978) 438 U.S. 154, 155, 98 S. Ct. 2674. This is a limited right and must be based on reasonable information or else such challenges can undermine the prosecution of the case, as well as other cases. People v. Panah (2005) 35 Cal.4th 395, 456, People v. Lewis (2006) 39 Cal.4th 970, 988.

As the reader of this article may be well aware, a search supported by a warrant is presumptively reasonable, so overcoming this presumption can be a tough argument. Moreover, even an insufficient affidavit does not require suppression of the evidence obtained if the police acted in a good faith belief that the warrant was valid. U. S. v. Leon (1984) 468 U.S. 897, 104 S. Ct. 3405.

This “good faith” exception is unavailable, however, in four limited circumstances outlined in Leon at 923; see also People v. Camarella (1991) 54 Cal.3d 592, 596. They are: 1) when the issuing magistrate was misled by information that the affiant officer knew or should have known was false; 2) the magistrate wholly abandoned the judicial role of neutrality and disinterest; 3) the affidavit was so lacking in indications of probable cause that it would be entirely unreasonable for an officer to believe probable cause existed; and 4) the warrant was so facially deficient in failing to particularize the place to be searched or things to be seized that the executing officers could not reasonably presume it to have been valid.

When the information in the affidavit is false, the “good faith” exception is not really applicable, either, which is the gist of a Franks motion. In such a motion, defendant must make a preliminary showing that the affidavit contained a false statement, that the false statement was made knowingly or in reckless disregard for the truth, and that the statement was material to the probable cause finding. Franks v. Delaware, supra; People v. Lewis, supra;

Material omissions are treated in the same manner. People v. Luttenberger (1990) 50 Cal.3d 1, 15, n4; see also People v. Sandoval (2015) 62 Cal.4th 394, 410; citing People v. Kirtland (1980) 28 Cal.3d 376, 385 (facts are material and must be disclosed if substantial possibility that their omission would have altered a reasonable magistrate’s probable cause determination).

To do this, defendant should include declarations of witnesses. Franks, 438 U.S. at 71; People v. Bos (1993) 14 Cal.App.4th 177, 183 (proof must reliably challenge truthfulness of affiant, not informant).

If defendant proves, by a preponderance of the evidence, that a statement in the affidavit supporting the warrant is false, the court should consider the balance of the affidavit after deleting the false statement(s). It should suppress evidence if the amended affidavit does not provide probable cause for the search. In the case of material omissions, the court should insert the improperly omitted information and then decide if the affidavit provides probable cause. People v. Lopez (1985) 173 Cal.App.3d 125, 133.

Often, the affiant will claim to rely upon information from an informant. When the defense can cast doubt on the existence of the informant or on the informant’s reliability, the judge must hold an in-camera hearing. People v. Estrada (2003) 105 Cal.App.4th 783. The judge may then examine the informant to determine if the affidavit contains false statements or material omissions.

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In California, if you suspect that a search warrant served on you was based on false or fraudulent information, effectively resulting in an illegal search and seizure, you have the legal right to challenge it.

In such cases, your criminal defense attorney may file a Franks motion. Named for the seminal case Franks v. Delaware in 1978, the Franks motion requests a hearing to scrutinize the validity of a search or arrest warrant. A process also known as traversing a warrant involves a challenge to the veracity of the affidavit and the information contained therein.

What is a Franks Motion and Hearing in California?

A Frank’s motion and hearing will normally take place after a search and seizure has occurred.

In other words, a Franks hearing is a legal proceeding in a criminal case where the defense lawyer attempts to traverse a search warrant, which means that the defendant challenges the truth of the information used to support it.

A Franks motion is the legal document given to the judge setting forth the defendant’s request for a hearing and the specific challenges. This type of hearing is usually conducted after a search and seizure.

Suppose the defense is successful at the hearing. In that case, the judge will toss out or suppress all or some of the evidence seized under the warrant. Notably, the Fourth Amendment of the United States Constitution says that a search warrant can only be issued upon showing probable cause.

Probable cause is a reasonable belief that criminal activity has taken place or is taking place. Thus, a motion to traverse challenges the truth of the information that tries to establish probable cause for the issuance of a search warrant. The defense can also challenge both arrest warrants and bench warrants.

The foundation of a Franks motion lies in the suspicion that the law enforcement officer involved may have misrepresented facts or demonstrated reckless disregard for the truth while obtaining the warrant. Suppose the defense can provide sufficient preliminary evidence of such dishonesty. In that case, the court will hold a Franks hearing to examine the warrant and the affidavit behind it and see whether it is based on false presumptions.

WHAT IS THE BACKGROUND OF THE FRANKS MOTION?

The Fourth Amendment of the U.S. Constitution protects citizens from “unreasonable searches and seizures” by law enforcement officers.

To search a property, law enforcement must obtain a warrant signed by a judge or magistrate based on information in an affidavit or sworn statement provided by the officer seeking the warrant.

However, suppose any of this information is false or misleading, intentionally or due to reckless disregard for the truth. In that case, any evidence obtained from that search should be inadmissible in court.

The Franks motion, and subsequent Franks Hearing, refers to the legal procedure where a defendant challenges the validity of a search warrant or arrest warrant, otherwise known as traversing the warrant. In other words, A Franks hearing is a proceeding before a judge where a defendant contests the veracity of a search warrant.

When a warrant is traversed, it’s akin to declaring, “There’s a flaw in this warrant, and it shouldn’t have been issued.” It questions the truthfulness or sufficiency of the facts upon which the warrant was issued.

WHAT IS PROBABLE CAUSE FOR SEARCH WARRANTS?

The entire justification of a search warrant is based on probable cause. The Fourth Amendment states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

Probable cause means there is reasonable suspicion that evidence of a crime is present on the property.

Thus, to obtain a search warrant, a law enforcement officer must provide an affidavit to the magistrate or judge asserting that there is probable cause—meaning, reasonable suspicion—that evidence of a crime is present on the premises.

A police officer must submit a search warrant affidavit to the judge. This document gives the reasons why they should allow law enforcement to search. Sometimes an affidavit will include statements from a confidential informant.

However, if the sworn affidavit is based on false or misleading information, the subsequent warrant effectively violates the person’s Fourth Amendment rights.

Suppose the judge determines during a Franks hearing that the information in the affidavit was false or deliberately misleading. In that case, any evidence obtained from the subsequent search can be considered “fruit of a poisonous tree” and thus inadmissible in court.

WHAT IS THE PROCESS OF FILING A FRANKS MOTION?

Filing a Franks motion in California involves several steps:

Submitting the motion and related evidence: The defense submits the motion, detailing why they believe the warrant was obtained under false pretenses or with reckless disregard for the truth. Alongside this, they must provide prima facie evidence supporting these claims.
Court review: The judge reviews the motion and the preliminary evidence. If the defense has made a strong enough case, the judge will schedule a Franks hearing, typically in the judge’s chambers.
Franks hearing: During the hearing, the defense may need to subpoena witnesses to testify about the alleged misconduct. The judge may also question the affiant (who wrote the warrant affidavit) to determine whether it contains falsehoods, misrepresentations, inaccuracies, or material omissions.

WHAT IS THE BURDEN OF PROOF WHEN FILING A FRANKS MOTION?

For a motion to be considered by the court, specific criteria must be met in terms of the evidence presented:

The defendant must have made a “substantial” preliminary showing that the warrant affidavit was misleading, false, or contained material omissions.
The defendant must argue that an officer knew of the falsity at the time of submission. In other words, they deliberately misled the court or acted with reckless disregard for the truth.
The defendant must prove that the misleading statements or omissions were material to the court’s decision to issue the warrant.

Notably, the motion can also show that authorities intentionally omitted the affidavit material information that would have negated the granting of a warrant. If the trial court finds the motion persuasive, the judge will hold a Franks hearing, an evidentiary hearing held in the judge’s chambers.

WHAT HAPPENS IF THE FRANKS MOTION IS GRANTED?

During the hearing, the defense attorney can present evidence of why the search warrant should not have been ordered.

If a judge grants the Franks motion, some or all of the evidence in the warrant could be suppressed.

The judge at the suppression hearing could question the officer who wrote the affidavit, known as the affiant. The judge asks questions to determine if the affidavit has false information, misrepresentations, or is inaccurate.

A successful Franks motion can have far-reaching implications for your case. If the judge grants the motion after the Franks hearing, it means that some or all the evidence procured from the disputed warrant becomes inadmissible in court and must be suppressed. source

What Is Traversing a Warrant (a Franks Motion)?

A Franks hearing is a legal proceeding in a criminal case where the defense tries to traverse a search warrant. Traversing a warrant means that the defendant challenges the truth of the information that is used to support it.

A Franks motion is the legal document given to the judge that sets forth the defendant’s request for a hearing and the specific challenges that the defendant has.

This type of hearing is typically conducted after a search and seizure have taken place. If the defense is successful at the hearing, then the judge will throw out (or suppress) all of the evidence, or some, that was seized under the warrant.

Note that the Fourth Amendment of the United States Constitution says that a search warrant can only be issued upon a showing of probable cause.

“Probable cause” is a reasonable belief that:

criminal activity has taken place, or
criminal activity is taking place.

A motion to traverse, then, challenges the truth of the information that tries to establish probable cause for the issuance of a search warrant.

Under California law, the defense can challenge other warrants in addition to search warrants. For example, defendants and accused parties are free to challenge both:

arrest warrants, and
bench warrants.

1. What is a Frank’s hearing?

A Franks hearing is a proceeding before a judge where a defendant contests the veracity of a search warrant.¹ The name stems from a real court case heard by the United States Supreme Court in Franks v. Delaware.

Note that in order to obtain a warrant, a police department officer must submit a search warrant affidavit to the judge. This document gives the reasons why he/she should allow law enforcement to conduct a search. Sometimes an affidavit will include statements from a confidential informant.

If a defendant believes that the affidavit contains false information, then the defendant:

requests a Franks hearing to challenge the warrant, and
he/she makes this request in a Franks motion.

A Franks motion can question the information in the affidavit by showing that:

it contained a false statement or misstatements of facts,
it contained false information or material information that was false,
it was made with a reckless disregard for the truth, and/or
it contained misleading information that the judge used to issue the warrant.²

Note, too, that the motion can show that authorities intentionally left out of the affidavit material information that would have negated the granting of a warrant.³

If the trial court finds the motion persuasive, then the judge holds a Franks hearing, which is an evidentiary hearing held in the judge’s chambers.⁴

During the hearing, the defense counsel presents evidence for why the search warrant should not have been ordered.

In addition, the judge at the suppression hearing may question the person who wrote the affidavit, who is known as the affiant. The judge asks questions to determine if the affidavit has:

falsities,
misrepresentations, or
inaccuracies.

Franks hearings are typically held after a search has been conducted. If the defense sets forth a substantial preliminary showing that the affidavit was false, then the judge may:

grant the Franks order, and
suppress, or throw out, some or all of the evidence seized under the warrant.

The “exclusionary rule” is the law that prohibits the use of illegally obtained evidence in a criminal trial. The rule was established by the Supreme Court in 1961.⁵

2. What must the police show to obtain a search warrant?

To obtain a lawful search warrant, law enforcement authorities must show or establish probable cause.⁶

“Probable cause” means a reasonable belief that criminal activity took place or is taking place.

The Fourth Amendment of the U.S. Constitution states that:

no warrants shall be issued but upon probable cause, and
the warrant must describe with particularity the place to be searched and the persons or things to be seized.

As to this last requirement, a search warrant affidavit must set forth the following information:

the name of the person to be searched, or
a specific description of the property to be searched, and
a description of the property, thing, or things to be searched for.⁷

A judge rules on whether there is a finding of probable cause. He/she makes a probable cause determination by analyzing the facts of the case.

Note that there is no one set standard (such as preponderance of the evidence) that a judge will use in determining whether there is or is not probable cause to grant a search warrant application.

Search warrants are issued and signed by a California judge and can only be issued if he/she finds probable cause of a criminal act.

READ UP MORE….. on Malicious Prosecution and Thompson Vs. Clark and other SCOTUS Rulings here

3. How does a search warrant get issued?

Search warrants are issued and signed by a judge.

A judge can only issue the warrant if he/she finds probable cause of a criminal act.

Note that before making this finding, a judge may question:

law enforcement officers,
the prosecutor, and/or
any witnesses named in the affidavit.

Affidavits can be written or oral. They can be submitted to a judge either in person or via:

telephone,
fax, or
email.

All affidavits are submitted under penalty of perjury.

If issued, a search warrant directs a police officer to command a search for certain things or personal property listed in the warrant.

4. Can a defendant or defense counsel challenge other warrants?

Defendants can challenge other warrants besides search warrants.

For example, they can contest both:

arrest warrants, and
bench warrants.

A motion to quash an arrest warrant is a claim that an arrest warrant is invalid or illegal.

An arrest warrant is issued when a magistrate is satisfied that there are reasonable grounds to believe that a person has committed a crime.⁸

A bench warrant, on the other hand, is an arrest warrant issued by a judge in court for a person’s failure to appear in court.

Under Penal Code 978.5, a bench warrant may be issued when a defendant fails to appear after being:

ordered to personally appear in court at a specific time and place,
released from custody on bail and ordered to appear at a specific time and place,
released from custody on their own recognizance and promise to appear,
released upon citation and signed a promise to appear in court,
authorized to appear by counsel and the court ordered that the defendant personally appear.⁹

To challenge or “recall” a bench warrant, a case needs to be put on the calendar in the courtroom where it was issued. Then an oral motion to quash or recall can be made to the judge.

A judge will recall a warrant if the defendant has complied with the original order to appear.

Legal References:

See Franks v. Delaware (1978) 438 U.S. 154. See also United States v. Veloz (2020) 948 F.3d 418.
People v. Box (1993) 14 Cal.App.4^th 177.
People v. Luttenberger (1990) 50 Cal.3d. 1. See also People v. Sandoval (2015) 62 Cal.4^th 394.
See, e.g., People v. Estrada (California Court of Appeals, 2003) 105 Cal.App.4^th 783.
Mapp v. Ohio (1961) 367 U.S. 643.
Illinois v. Gates (1982) 462 U.S. 213.
United States v. Cruz (2014) 774 F.3d 1278, 1290.
See California Penal Code 813 and 827.1.
California Penal Code 978.5.

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