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What Is Traversing a Warrant (a Franks Motion)?

Suppose your home or office was subject to a police raid using a search warrant.  You knew you had nothing illegal inside, so you were not alarmed, but you were still annoyed at the disruption.  However, police emerged from the search with two kilograms of methamphetamine, a large sum of cash, several firearms and a few hundred rounds of ammunition.  You were certain it was planted and therefore the affidavit supporting the search warrant must have been falsified.

What can you do to have the evidence suppressed?  One option it to traverse the warrant.  What does this mean? 
Brief Synopsis: To have the judge in a case order the production of the affidavit used to secure a search warrant, one can file a “Franks” motion to “traverse” the warrant, or review it, like traversing a hillside.  If the affidavit is demonstrably false, the warrant may have been improperly obtained and the evidence seized therefrom suppressed, which may lead to dismissal of the case.
Traversing a warrant means challenging the affidavit and the information therein as false. Franks v. Delaware (1978) 438 U.S. 154, 155, 98 S. Ct. 2674.  This is a limited right and must be based on reasonable information or else such challenges can undermine the prosecution of the case, as well as other cases.  People v. Panah (2005) 35 Cal.4th 395, 456, People v. Lewis (2006) 39 Cal.4th 970, 988.

As the reader of this article may be well aware, a search supported by a warrant is presumptively reasonable, so overcoming this presumption can be a tough argument.  Moreover, even an insufficient affidavit does not require suppression of the evidence obtained if the police acted in a good faith belief that the warrant was valid.  U. S. v. Leon (1984) 468 U.S. 897, 104 S. Ct. 3405. 

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This “good faith” exception is unavailable, however, in four limited circumstances outlined in Leon at 923; see also People v. Camarella (1991) 54 Cal.3d 592, 596.  They are: 1) when the issuing magistrate was misled by information that the affiant officer knew or should have known was false; 2) the magistrate wholly abandoned the judicial role of neutrality and disinterest; 3) the affidavit was so lacking in indications of probable cause that it would be entirely unreasonable for an officer to believe probable cause existed; and 4) the warrant was so facially deficient in failing to particularize the place to be searched or things to be seized that the executing officers could not reasonably presume it to have been valid.

When the information in the affidavit is false, the “good faith” exception is not really applicable, either, which is the gist of a Franks motion.  In such a motion, defendant must make a preliminary showing that the affidavit contained a false statement, that the false statement was made knowingly or in reckless disregard for the truth, and that the statement was material to the probable cause finding.  Franks v. Delaware, supra; People v. Lewis, supra;

Material omissions are treated in the same manner.  People v. Luttenberger (1990) 50 Cal.3d 1, 15, n4; see also People v. Sandoval (2015) 62 Cal.4th 394, 410; citing People v. Kirtland (1980) 28 Cal.3d 376, 385 (facts are material and must be disclosed if substantial possibility that their omission would have altered a reasonable magistrate’s probable cause determination).

To do this, defendant should include declarations of witnesses.  Franks, 438 U.S. at 71; People v. Bos (1993) 14 Cal.App.4th 177, 183 (proof must reliably challenge truthfulness of affiant, not informant).

If defendant proves, by a preponderance of the evidence, that a statement in the affidavit supporting the warrant is false, the court should consider the balance of the affidavit after deleting the false statement(s).  It should suppress evidence if the amended affidavit does not provide probable cause for the search.  In the case of material omissions, the court should insert the improperly omitted information and then decide if the affidavit provides probable cause.  People v. Lopez (1985) 173 Cal.App.3d 125, 133.

Often, the affiant will claim to rely upon information from an informant.  When the defense can cast doubt on the existence of the informant or on the informant’s reliability, the judge must hold an in-camera hearing.  People v. Estrada (2003) 105 Cal.App.4th 783.  The judge may then examine the informant to determine if the affidavit contains false statements or material omissions.

For more information about warrant issues, please click on the following articles:
  1. Is It Illegal for the Government to Use an Informant with a Lengthy Criminal History in a Drug Investigation?
  2. So There Was an Informant Involved in Your Case – Who Is It?
  3. Suspected Ecstasy Drug Trafficker Successfully Challenges Search of His House Based on Faulty Search Warrant Affidavit
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