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A Franks hearing is a legal proceeding in a criminal case where you try to traverse a search warrant. Traversing a warrant means that you challenge 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 your request for a hearing and the specific challenges that you have.1
This type of hearing is typically conducted after a search and seizure have taken place. If you are 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:
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, you can challenge other warrants in addition to search warrants. For example, you are free to challenge both:
Our California criminal defense attorneys will highlight the following in this article:
To challenge the affidavit that a search warrant is based on, you can file a Franks motion. A Franks motion questions the information in the affidavit by providing evidence showing that:
Note, too, that the motion can show that authorities intentionally left out of the affidavit material information that would have prevented the warrant being granted.3
If the trial court finds your Franks motion contains persuasive (“prima facie”) evidence that the affidavit is based on false pretenses or reckless disregard for the facts, then the judge holds a Franks hearing.
A Franks hearing is an evidentiary hearing held in the judge’s chambers.4 During the hearing, you or your defense attorney presents evidence for why the search warrant should not have been ordered. You can also subpoena witnesses who can testify as to the affidavit’s untruthfulness.
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:
Franks hearings are typically held after a search has been conducted.
If you set forth a substantial preliminary showing that the affidavit was false, then the judge may:
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
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:
As to this last requirement, a search warrant affidavit must set forth the following information:
A judge rules on whether there is a finding of probable cause. They make 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 judge. A judge can only issue the warrant if they find probable cause of a criminal act.
Note that before making this finding, a judge may question:
If issued, a search warrant directs a police officer to command a search for certain things or personal property listed in the warrant.
To obtain a search warrant, a police department officer must submit a search warrant affidavit to the judge. This document gives the reasons why they should allow law enforcement to conduct a search. Sometimes an affidavit will include statements from a confidential informant.
Affidavits can be written or oral. They can be submitted to a judge either in person or via:
All affidavits are submitted under penalty of perjury.
You can challenge other warrants besides search warrants. For example, you can contest both:
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 you have committed a crime.8
A bench warrant, on the other hand, is an arrest warrant issued by a judge in court for your failure to appear in court.
Under Penal Code 978.5, a bench warrant may be issued when you fail to appear after being:
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 you have complied with the original order to appear.
For more in-depth information on search warrants, refer to these scholarly articles:
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.