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Franks Hearing

If evidence is seized pursuant to a search warrant or while serving an arrest warrant, then the criminal defense attorney should move to suppress that evidence in a “Franks hearing.” The Franks hearing is named after the requirements set out in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

In Franks, the Court developed a test to determine whether misstatements in affidavits for search warrants would require suppression of the fruits of those searches. The two prongs of the Franks test include:

  1. that the affiant stated false information in the affidavit knowingly and intentionally, or with a reckless disregard for the truth, rather than through mere negligence or an innocent mistake; and
  2. the remaining allegations are insufficient to support a probable cause finding (or that the statement was necessary to the finding of probable cause).

The officer’s intent can be shown by the fact that the officer cherry-picked specific information, while leaving out other pertinent, material information, all the while intending that the issuing judge would thus be duped into signing the warrant that he or she otherwise would not have signed. See 438 U.S. at 171-72.

If the defendant establishes these factors by a preponderance of the evidence, then the court must suppress the fruits of the search.

Attorneys for the Franks Hearing in Tampa, FL

If the prosecution depends on evidence seized in a search warrant or during the execution of an arrest warrant, then seek out the services of an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.

Our criminal defense attorneys work hard to show, by a preponderance of the evidence, that the investigating officer who prepared and submitted the affidavit to obtain the search warrant engaged in intentional or reckless conduct by including affirmative misstatements or omitting material statements in a way that amounted to deception.

Call 813-250-0500.


The Intent Requirement for a False Statement

Under Franks, the intent prong requires the movant:

  • to point out the specific portion of the affidavit alleged to be defective; and
  • to allege that the defect consisted either of a deliberate falsehood or a statement in reckless disregard of the truth; and
  • to offer proof supporting the allegations in the form of affidavits or other sworn or reliable statements of witnesses, or satisfactorily explain their absence.

Allegations of neglect or innocent mistake will not meet this requirement, nor is it sufficient to allege that the police themselves were innocently misled by others.

Instead, the materiality prong of Franks requires the moving party to establish that the affidavit, with the misstatements deleted, would itself fail to establish probable cause. Only if both prongs of the Franks rule are established will the moving party be granted a full evidentiary hearing on the issue. Franks, 438 U.S. at 171-72, 98 S. Ct. at 2684-85.

Franks Extended to Omissions in the Affidavit

In Johnson v. State, 660 So. 2d 648 (Fla. 1995), the court extended the Franks requirements to omissions in affidavits, adding these additional requirements for the court to assess:

  • whether the omitted material, if added to the affidavit, would have defeated probable cause; and
  • whether the omission resulted from intentional or reckless police conduct that amounts to deception.

Id. at 656.

In fact, in the Johnson case, the Court considered how the Franks rule should apply to factual omissions from the affidavit. The Johnson Court found that the only reasonable standard for judging the effect of the omission would be to determine if probable cause would still exist if the omitted material were included in the affidavit.

As a general rule, LaFave notes the omitted information to the probable cause hearing does not alone lead to an inference of deception, though there may be some situations where the omission is so striking that the inference is compelling. 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 4.4(b) at 58 (2d ed. 1987 & Supp. 1995).


This article was last updated on Friday, February 14, 2020.

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