The Right to a ''Post-Police Search'' Evidentiary Hearing

In Franks v. Delaware (1978) 438 U.S. 154, the United States Supreme Court held that a defendant has a limited right under the United States Constitution to challenge the validity of a search warrant by controverting the factual allegations made in the affidavit in support of the warrant. As explained in People v. Luttenberger (1990) 50 Cal.3d 1, Franks held that a defendant is constitutionally entitled to a postsearch evidentiary hearing on the veracity of the warrant affidavit if he first makes a substantial preliminary showing that (1) the affidavit includes one or more false statements made knowingly and intentionally, or with reckless disregard for the truth; and (2) the false statements were material to the finding of probable cause. (Luttenberger, at p. 10.) This rule recognizes that without some permissible inquiry into the veracity of material statements in the supporting affidavit, Fourth Amendment protections would be ineffective in guarding against police perjury or recklessness in seeking search warrants. (Franks, at p. 169.) Luttenberger held that in cases where the supporting affidavit is based on the statements of a confidential informant, and the defendant has offered evidence casting doubt on the veracity of material statements made by the affiant, the defendant is entitled to limited discovery of facts that might support his request for an evidentiary hearing into police bad faith or recklessness. In order to protect the confidential informant's identity, as well as the defendant's Fourth Amendment interests in such cases, the court held that the magistrate should conduct an in camera interview of the affiant and/or the confidential informant, and review any relevant documents, in order to investigate and report to the defendant whether any facts exist contradicting material representations made in the affidavit, or constituting material omissions from it. (Luttenberger, supra, 50 Cal.3d at pp. 21-24.)