A search warrant does not protect an unlawful search when police intentionally or recklessly mislead the judge who issued it. Under Franks v. Delaware, a defendant may challenge material false statements and omissions in a warrant affidavit and seek suppression of the resulting evidence.
If police obtained a search warrant using false, misleading, or incomplete information, contact federal criminal defense attorney Michael J. Petro to discuss whether a Franks hearing should be requested.
What Is a Franks Hearing?
A Franks hearing is an evidentiary hearing used to challenge the truthfulness of a search warrant affidavit.
Ordinarily, a judge reviewing a search warrant gives substantial deference to the issuing judge’s probable cause determination. The court generally evaluates probable cause based on the information contained in the affidavit.
That deference changes when the defense makes a substantial preliminary showing that the affiant intentionally or recklessly misled the issuing judge.
Under Franks v. Delaware, the defense must generally show:
• The affidavit contained a false statement or material omission.
• The falsehood or omission was made intentionally or with reckless disregard for the truth.
• The challenged information was necessary to the probable cause determination.
A negligent mistake ordinarily is not enough.
A Franks Challenge Is Different From an Ordinary Probable Cause Challenge
A defendant may challenge a search warrant in two related but distinct ways.
An ordinary probable cause challenge argues that the facts set forth in the affidavit did not establish a fair probability that evidence would be found in the place searched.
A Franks challenge argues that the affidavit itself was materially distorted by intentional or reckless falsehoods or omissions.
The defense may raise both arguments:
• The original affidavit failed to establish probable cause.
• The affidavit also contained intentional or reckless misrepresentations.
• After correcting those misrepresentations, probable cause is even more clearly absent.
The court should address each argument separately.
False Statements in a Warrant Affidavit
A false statement may involve an officer’s description of:
• What a witness or informant said.
• What police observed during surveillance.
• The location where evidence was discovered.
• The reliability of a confidential informant.
• The results of a controlled purchase.
• A suspect’s criminal history.
• Telephone, financial, or location records.
• Statements allegedly made by the defendant.
• The connection between the place searched and the suspected crime.
The defense must identify the specific statement claimed to be false. General accusations that the officer lied or that the investigation was unreliable will not ordinarily justify a hearing.
Material Omissions Can Also Support a Franks Hearing
Police may mislead a judge by omitting critical information rather than making an explicitly false statement.
Potentially material omissions may include:
• An informant’s history of providing false information.
• Payments or benefits promised to an informant.
• Pending criminal charges against the informant.
• Inconsistent statements by a witness.
• Failed surveillance.
• Facts contradicting the officer’s theory.
• The absence of expected evidence.
• Problems with a controlled purchase.
• Information showing that evidence may be stale.
• Facts weakening the connection between the alleged crime and the place searched.
Not every omitted fact creates a constitutional violation. A warrant affidavit is not required to include every detail learned during an investigation.
The defense must show that the omission was intentional or reckless and that including the omitted information would have defeated probable cause.
What Is Reckless Disregard for the Truth?
Recklessness requires more than carelessness or poor police work.
Courts may find reckless disregard when an officer:
• Had obvious reasons to doubt the information’s accuracy.
• Presented an allegation as confirmed fact despite knowing it was uncertain.
• Ignored directly conflicting evidence.
• Concealed information clearly critical to the probable cause analysis.
• Repeated another officer’s claim while seriously doubting its truth.
• Failed to disclose major problems with an informant’s credibility.
The precise standard can vary by jurisdiction and by whether the challenge involves an affirmative statement or an omission.
An innocent misunderstanding, typographical error, or negligent failure to investigate ordinarily does not satisfy Franks.
The Defense Must Make a Substantial Preliminary Showing
A defendant is not automatically entitled to a Franks hearing merely by requesting one.
The motion should:
• Identify each false statement or omission.
• Explain why the information is inaccurate or incomplete.
• Present evidence supporting the allegation.
• Explain why the officer acted intentionally or recklessly.
• Reconstruct the affidavit accurately.
• Demonstrate why the corrected affidavit lacks probable cause.
Supporting evidence may include:
• Police reports.
• Body camera footage.
• Dispatch recordings.
• Witness affidavits.
• Surveillance records.
• Photographs and videos.
• Telephone or location data.
• Controlled purchase documentation.
• Prior statements from the informant.
• Contradictions within the affidavit itself.
The motion should include affidavits or other reliable evidence when available. If supporting material cannot be obtained, the defense should explain why.
How the Court Corrects the Affidavit
The court tests materiality by reconstructing the affidavit.
For false statements, the court removes the intentionally or recklessly false information.
For material omissions, the court adds the omitted information.
The court then asks whether the corrected affidavit still establishes probable cause.
If probable cause remains after the correction, the misrepresentation is not considered material under Franks. If the corrected affidavit lacks probable cause, the falsehood or omission may require suppression.
What Happens at the Franks Hearing?
If the defense satisfies the preliminary burden, the court conducts an evidentiary hearing.
At the hearing, the defense must generally prove by a preponderance of the evidence that:
• The officer made the false statement or omission intentionally or recklessly.
• The false statement or omission was material to probable cause.
Witnesses may include:
• The affiant.
• Other investigating officers.
• Confidential informants when disclosure is permitted.
• Civilian witnesses.
• Forensic or technical experts.
The defense may use documents, recordings, and objective evidence to test the affiant’s credibility and reconstruction of events.
Information Supplied by Other Officers
An affiant may rely on information received from other officers. But the government cannot avoid Franks merely because the false information originated elsewhere.
Relevant questions include:
• Who created the inaccurate information?
• Did the affiant know or seriously doubt that it was false?
• Did the source officer act intentionally or recklessly?
• Was the information accurately communicated?
• Did the affidavit conceal uncertainty about the source?
• Were the officers participating in a coordinated investigation?
The defense should trace the information to its original source rather than assuming the affiant personally observed every fact described in the affidavit.
Confidential Informants and Franks Challenges
Search warrant affidavits frequently rely on confidential informants.
A Franks challenge may focus on whether police accurately described:
• The informant’s basis of knowledge.
• The informant’s prior reliability.
• Police corroboration.
• Payments or promised benefits.
• Pending charges.
• Personal motives.
• The procedures used during a controlled purchase.
• Inconsistencies in the informant’s statements.
A defendant generally cannot obtain a hearing merely by arguing that the informant lied. The focus is ordinarily on whether the police affiant intentionally or recklessly misrepresented what the informant said, concealed serious credibility problems, or presented unreliable information without appropriate qualification.
Controlled Purchases Must Be Examined Closely
Police frequently rely on an alleged controlled drug purchase to establish probable cause.
Defense counsel should determine:
• Whether police searched the informant before the purchase.
• Whether officers continuously observed the informant.
• Whether the informant met other people.
• Whether audio or video recordings exist.
• Whether marked money was used or recovered.
• Whether the purchased substance was tested.
• Whether police accurately identified the location.
• Whether the affidavit disclosed gaps in surveillance.
Calling an operation “controlled” does not establish that proper procedures were followed.
United States v. Billian
In United States v. Billian, No. 09-3385, police obtained a warrant to search Larry Billian’s residence during a drug investigation.
Billian argued that the affidavit lacked probable cause and contained material false statements and omissions. The district court conducted a Franks hearing.
The court found that parts of the affidavit were inaccurate but concluded that the errors resulted from negligence rather than intentional deception or reckless disregard for the truth.
Billian also argued that the officer omitted facts concerning:
• Ownership of a vehicle observed at the residence.
• The absence of suspicious activity during surveillance.
• Differences between the informant’s allegations and evidence recovered from trash searches.
The district court rejected the Franks claim and concluded that the affidavit still established probable cause.
Why Suppression Was Denied
The Seventh Circuit affirmed the district court’s findings that the officer was neither intentionally deceitful nor reckless.
Negligence alone did not justify suppression. The court also concluded that the affidavit remained sufficient when the disputed statements were removed or corrected.
The decision illustrates the two independent barriers to a successful Franks challenge:
• The defense must prove the required culpable state of mind.
• The corrected affidavit must lack probable cause.
An inaccurate affidavit is not automatically invalid. But serious errors supported by evidence should not be dismissed merely because police characterize them as mistakes.
The Leon Good Faith Exception
Under United States v. Leon, evidence obtained under a defective warrant may sometimes remain admissible when officers relied on the warrant in objective good faith.
That exception generally does not protect officers when the issuing judge was misled by information the affiant knew was false or would have known was false except for reckless disregard for the truth.
The government should not receive the benefit of good faith when police created the warrant’s defect through intentional or reckless deception.
Other limits on Leon may apply when:
• The issuing judge abandoned the judicial role.
• The affidavit was so lacking in probable cause that reliance was unreasonable.
• The warrant was facially deficient.
A complete suppression motion should address probable cause, Franks, and Leon separately.
Evidence Needed for a Franks Motion
Defense counsel should obtain and compare:
• The search warrant and affidavit.
• All versions and drafts of the affidavit.
• Police reports.
• Body camera and dashboard camera recordings.
• Informant files when disclosure is authorized.
• Controlled purchase records.
• Surveillance logs.
• Dispatch communications.
• Photographs and video.
• Telephone and location records.
• Messages between investigating officers.
• Evidence inventory and chain of custody records.
Differences between the affidavit and contemporaneous records may provide the factual foundation required for a hearing.
Challenging Sealed Affidavits
A defendant may face difficulty when the affidavit, informant information, or investigative materials remain sealed.
Defense counsel may request:
• Disclosure of the affidavit.
• Partial unsealing.
• Redaction of sensitive information.
• In camera judicial review.
• Disclosure under a protective order.
• Production of information essential to litigating probable cause and Franks.
The government’s interest in protecting an investigation or informant must be balanced against the defendant’s right to challenge the legality of the search.
The Remedy for a Successful Franks Challenge
When the defense proves an intentional or reckless material falsehood or omission and the corrected affidavit lacks probable cause, the warrant is invalid.
Evidence obtained through the search may be suppressed. The defense may also seek suppression of later evidence derived from the unlawful search, subject to any exception the government can establish.
Michael J. Petro represents clients facing federal criminal charges in Tampa and Chicago. If police obtained a warrant using false or materially incomplete information, contact federal criminal defense attorney Michael J. Petro.