Franks Hearing California
What is a "Franks Hearing" in California ?
The appropriate procedure for evaluating the necessity of a Franks hearing was set forth in People v. Avalos (1996) 47 Cal. App. 4th 1569, 1581 55 Cal. Rptr. 2d 450, as follows:
"In Franks v. Delaware, supra, 438 U.S. 154. . ., the Supreme Court held a criminal defendant could challenge the veracity of an affidavit used to procure a search warrant where a showing is made the affidavit included a deliberate or recklessly made material factual misrepresentation or omission.
But 'to mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine
There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Allegations of negligence or innocent mistake are insufficient. . . . Finally, if these requirements are met, and if, 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.
On the other hand, if the remaining content is insufficient, the defendant is entitled. . . to his hearing. Whether he will prevail at that hearing is, of course, another issue.' ( Id. at pp. 171-172 57 L. Ed. 2d at p. 682.)
'When material information has been intentionally omitted from a warrant affidavit, the proper remedy is to restore the omitted information and reevaluate the affidavit for probable cause.' ( People v. Sousa (1993) 18 Cal. App. 4th 549, 562-563 22 Cal. Rptr. 2d 264.)"