Franks Hearing
If evidence is seized pursuant to a search warrant or while serving an arrest warrant, then the criminal defense attorney might move to suppress that evidence by showing the application in support of the warrant to seize property contained numerous material misrepresentations and omissions in violation of 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 false or intentionally misleading statements in an affidavit in support of the search warrant would require suppression of the fruits of those searches. The prongs of the Franks test include:
- 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
- the remaining allegations are insufficient to support a probable cause finding; or
- that false or intentionally misleading 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 Franks, 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.
Franks provides grounds for an individual “to challenge the veracity of statements made in support of an application for a search warrant.” United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017). An officer presenting a warrant application has a duty to provide, in good faith, all relevant information to the magistrate judge. United States v. Hill, 459 F.3d 966, 971 n.6 (9th Cir. 2006).
As a result, the warrant application must contain truthful statements. If an applicant intentionally or with reckless disregard includes materially false statements or omits material statements, and those misstatements or omissions impact the magistrate judge’s finding of probable cause, then the warrant must be quashed and the seized evidence suppressed. See id.
The movant bears the burden of demonstrating “by a preponderance of the evidence” that:
- “the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant;” and
- that the false or misleading statement or omission was material, i.e., “necessary to finding probable cause.”
United States v. MartinezGarcia, 397 F.3d 1205, 121415 (9th Cir. 2005). If both prongs are met, then “the search warrant must be voided, and the fruits of the search excluded.” Franks, 438 U.S. at 156; Perkins, 850 F.3d at 1116.
A movant is entitled to a Franks hearing “to test the veracity of an affidavit” supporting the warrant application if the movant makes a “substantial preliminary showing” of these two elements. U.S. v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir. 1980); United States v. Bash, No. 20-00238, 2022 WL 4788482, at *8 (E.D. Cal. Oct. 3, 2022).
“[A]n affiant can mislead a magistrate by reporting less than the total story, thereby manipulating the inferences a magistrate will draw.” Perkins, 850 F.3d at 1117-18. Thus, a court will review the effects of all misrepresentations and omissions “cumulatively” to determine the impact on the existence of probable cause. United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985).
A movant need not show the affiant had an intent to deceive the magistrate judge where “the misstatements and omissions are such that [the court is] compelled to conclude that the affidavit was prepared with a reckless disregard for the truth.” United States v. Hernandez, 135 F. App’x 97, 99 (9th Cir. 2005). The cumulative effect of the materially false statements and omissions detailed below was to mislead the magistrate judge into finding probable cause.
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. That wrongful conduct could include 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 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. However, 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).
Credibility of an Informant’s Information Listed in the Affidavit in Support
“When an officer applies for a search warrant, she must pass along all relevant information to the judge, particularly information that goes to the credibility of the only witness, so that she does not usurp the magistrate’s duty to conduct an independent evaluation of probable cause.” United States v. Wright, 431 F. Supp. 3d 1175, 1183 (D. Nev. 2020), aff’d, No. 20-10303, 2022 WL 67341 (9th Cir. Jan. 6, 2022) (quotation omitted).
A Franks hearing is required where an affidavit provides “no indication of the basis for the informant’s conclusion.” United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985). The reliability or veracity of the witness’s information may be shown through independent corroboration. United States v. Bishop, 264 F.3d 919, 925 (9th Cir. 2001).
When considering a witness’s basis of knowledge, the court should consider “how the informant came by his or her knowledge.” Id. at 924-25 (quotation omitted). “[E]ven if an informant does not disclose the basis for his information, police corroboration or the surrounding circumstances can support a determination of the informant’s reliability.” United States v. Tarazon, 989 F.2d 1045, 1049 (9th Cir. 1993).
Franks Hearing in a Civil Asset Forfeiture Case
Filing a motion to suppress and litigating the issues during a Franks Hearing are also essential tools during civil asset forfeiture proceedings in state or federal court after the seizure of U.S. Currency, cryptocurrency, or other valuable property. Franks hearings are an available remedy in civil forfeiture actions.
For example, in United States v. $186,416 in U.S. Currency, No. 05-6703, 2006 WL 8434690, at *1 (C.D. Cal. Aug. 16, 2006), the court analyzed, in civil forfeiture action, whether Franks hearing was necessary “to determine whether the warrant should be quashed due to material omissions in the supporting affidavit.”
This article was last updated on Friday, April 10, 2026.
