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What is a Franks Hearing? What is a Motion to Traverse a Search Warrant?

Posted by Neil Shouse | Aug 06, 2019 | 0 Comments

attorney bringing forth a franks motion to judge

Search warrants are issued by magistrates. The magistrate must find probable cause to issue the warrant. Facts to support probable cause are in an affidavit submitted by law enforcement. To traverse a warrant means to challenge the truth of the information provided to the magistrate.

A Franks Motion specifically claims that the officer who wrote the affidavit provided false information to the judge. If it can be shown that the information was false, then the evidence may be thrown out.

The Fourth Amendment of the United States Constitution states that:

  • No warrants shall issue, but upon probable cause, particularly describing the place to be searched, and the persons or things to be seized.

To get a warrant law enforcement must submit an application to a magistrate. The application includes an affidavit under penalty of perjury that:

  • names or describes the person to be searched or searched for,
  • particularly describes the property, thing, or things to be searched for, and
  • specifically describes the place to be searched.

If the magistrate believes that there is probable cause to believe a crime has been committed, he or she will issue the warrant.

Probable cause means a reasonable belief that criminal activity did or is taking place.

Please note that police must inform the magistrate if the place to be searched involves:

  • an attorney,
  • physician,
  • psychotherapist, or
  • clergyman.

In California, all state judges are also magistrates.

What Does it Mean to Quash and Traverse a Warrant?

Warrants are issued based upon probable cause. Probable cause means a reasonable belief that criminal activity took place or is taking place. A magistrate issues a warrant if he or she believes that probable cause exists.

To obtain a warrant, police submit an application to a magistrate (judge). The application must include an affidavit under penalty of perjury that:

  • names or describes the person to be searched or searched for,
  • particularly describes the property, thing, or things to be searched for, and
  • specifically describes the place to be searched.

A motion to traverse challenges the truth of the affidavit that was submitted.

A motion to quash challenges the sufficiency of the affidavit. That is done by asking, “Even if the facts are true, do they amount to probable cause?” If the answer is no, the warrant is not valid.

What is a Franks Hearing?

If an accused believes a search warrant was obtained using an affidavit that contained false information, a hearing can be requested. This is called a Franks motion. The motion must detail how the judge was misled. This can be done by showing:

  1. the affidavit contained a false statement,
  2. the statement was made knowingly or with reckless disregard for the truth, AND
  3. the misleading information was necessary and material to establish probable cause.

If the judge believes that the truth of the information has been effectively challenged, an evidence hearing must be held. The hearing is private (in-camera) and held in the judge's chambers.

During this hearing, the judge may question the person who wrote the affidavit to determine whether it was accurate, false, or misleading.

If the judge agrees the affidavit contained false, important information, the judge then considers what remains. If it still provides probable cause without the false information, the warrant is valid. If it does not, the judge must quash the search warrant.

Once a search warrant is quashed, any evidence that was seized under the warrant will be thrown out (suppressed).

Please note, if material information was intentionally left out, that is the same as providing false information (by omission).

How Does a Search Warrant Get Issued?

A search warrant is:

  • an order in writing,
  • in the name of the People of California,
  • signed by a magistrate (judge),
  • directed to a peace officer,
  • commanding a search for certain things or personal property, and
  • ordering the things or property brought to the magistrate.

Search warrants are issued and signed by a magistrate. In California, every judge is also a magistrate. The magistrate must reasonably believe:

  • a crime has been committed, and
  • evidence of the crime is likely to be found in the place described in the search warrant.

Probable cause is a reasonable belief that criminal activity is taking (or has taken) place. The magistrate must have a reasonable belief that the things or property described in the application will be found in the searched location.

Before finding that probable cause exists, the judge may question:

  • the law enforcement officer,
  • the prosecutor,
  • any witnesses that law enforcement relied on.

Affidavits can be written or oral. They can be submitted to the judge in person, or by telephone, fax, or e-mail. They must contain facts that establish grounds for the application or the probable cause for believing that they exist. Affidavits are submitted under penalty of perjury.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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