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Overview of Franks Hearings in Federal Criminal Cases

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant,” 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of “limited scope,” id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Id. at 155-56, 98 S.Ct. at 2676-77. This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” Id. at 171-72, 98 S.Ct. at 2684-85.

The Franks test not only applies to cases where false information is included in an affidavit, but also applies when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Colkley, 899 F.2d 297, 300 (4th. Cir.1990).

Upon making this two-part preliminary showing of false or omitted information, and the necessity of this information to a finding of probable cause, a defendant is entitled to a hearing. At this hearing, the defendant has the burden of proving the allegations by a preponderance of the evidence. United States v. Shorter, 328 F.3d 167, 170 (4th Cir. 2003) citing United States v. Franks, 438 U.S. at 156, 98 S.Ct. 2674.

If an affiant’s material perjury or recklessness is established by a preponderance of the evidence, the warrant “must be voided” and evidence or testimony gathered pursuant to it must be excluded. Id. at 156, 98 S.Ct. at 2676. A warrant that violates Franks is not subject to the good-faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984).

Adapting Franks to the situation involving omissions from affidavits, the defendant in Reivich , had to show (1) that the police omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading, United States v. Melvin, 596 F.2d 492, 499 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979); e.g., United States v. Strini, 658 F.2d 593, 597 (8th Cir.1981) (failure to reveal informant’s identity not a false statement within the contemplation of Franks when the omission was intended not to enhance the contents of the affidavit but to protect the informant); and (2) that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause. United States v. Stanert, 762 F.2d 775, 782 (9th Cir.), amended, 769 F.2d 1410 (9th Cir.1985); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980); cf. Franks, 438 U.S. at 155-56, 171-72, 98 S.Ct. at 2676, 2684.

Courts have found that recklessness may be inferred from the fact of omission of information from an affidavit. See e.g., Martin, 615 F.2d at 329. Such an inference, however, is warranted only when the information omitted would have been “clearly critical” to the finding of probable cause, id., and existing precedents in fact generally have relied also on additional circumstances in support of their findings of recklessness. For example, in United States v. Rule, 594 F.Supp. 1223, 1340 (D.Me.1984), order vacated on other grounds sub. nom United States v. Streifel, 781 F.2d 953 (1st Cir.1986), the affidavit not only failed to mention that an informant had continued serving as a drug courier contrary to the express instructions of the agents with whom he was working, but also was structured to imply falsely that the informant had come forward voluntarily to give information about the activities of a criminal organization of which he had been a part.

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