Criminal Defense: Franks Hearings and Challenging the Warrant Affidavit

If you have been arrested or charged with a crime in Greenville or anywhere else in South Carolina, you need to retain experienced and skilled criminal defense attorneys, particularly if your arrest and/or charges are based on a search and/or seizure. A skilled defense attorney has many strategies for challenging the evidence obtained as a result of a search/seizure. One such strategy is to challenge the affidavit used to obtain a search warrant. This article provides some information concerning these types of legal and evidentiary challenges.

 

Challenging a Warrant Affidavit at a Franks Hearing

In general, law enforcement must obtain a warrant to conduct a valid search for evidence. When seeking a warrant, the general procedure is to file papers with a relevant criminal court judge. These papers must include what is generally called the warrant affidavit. This affidavit is a written statement by — most often — a law enforcement officer setting out facts that give rise to a reasonable basis for the warrant to issue.

If the warrant affidavit is false or misleading or contains important omissions, then the affidavit can be stricken which — normally — makes the search warrant issued based on the affidavit invalid. If that happens, any search conducted and any evidence obtained by virtue of the warrant will be suppressed and not usable at trial. See State v. Lynch, 771 SE 2d 346 (S. Car. App. 2015).

In general, the affidavit used to obtain a warrant is given great deference and is presumed to be valid. But, under some circumstances, a criminal defendant can challenge the veracity of a warrant affidavit pursuant to the US Supreme Court case of Franks v. Delaware, 438 U.S. 154 (1978). Based on the name of the case, such challenges are called “Franks challenges” or “Franks hearings.”

South Carolina has adopted the principles underlying Franks. Under both Franks and subsequent South Carolina case, a Franks hearing is not automatic. Rather, a defendant must first make a preliminary showing to the judge that some important information in the affidavit was wrong or omitted and that such wrong or missing made the affidavit misleading to the judge that issued the search warrant. Franks involved a claim that false information had been included in the warrant affidavit. However, the omission of information may also entitle the defendant to a Franks hearing. See State v. Missouri, 524 S.E.2d 394 (S. Car. Supreme Court 1999) (“… the Franks test also applies to acts of omission in which exculpatory material is left out of the affidavit.”).

To win a Franks hearing, the defendant and his/her attorney must show:

• Intent to mislead or reckless disregard by the law enforcement officer
• The causal connection between the false/missing information and the issuance of the warrant — that is, the false/missing information must important — not trivial — and relate to the finding of probable cause and
• That the affidavit and/or the warrant is not valid for other reasons

 

Call The Law Office Of H. Chase Harbin Today

For more information, contact the proven criminal defense attorneys at The Law Office of H. Chase Harbin. Contact our office today via email or by telephone. We have offices in Greenville and Pickens, South Carolina.