A Franks hearing is a legal proceeding in a criminal case where the defense tries to traverse a search warrant. Traversing a warrant means that the defendant challenges the truth of the information that is used to support it.
A Franks motionis the legal document given to the judge that sets forth the defendant’s request for a hearing and the specific challenges that the defendant has.
This type of hearing is typically conducted after a search and seizure have taken place. If the defense is successful at the hearing, then the judge will throw out (or suppress) all of the evidence, or some, that was seized under the warrant.
Note that the Fourth Amendment of the United States Constitution says that a search warrant can only be issued upon a showing of probable cause.
“Probable cause” is a reasonable belief that:
- criminal activity has taken place, or
- criminal activity is taking place.
A motion to traverse, then, challenges the truth of the information that tries to establish probable cause for the issuance of a search warrant.
Under California law, the defense can challenge other warrants in addition to search warrants. For example, defendants and accused parties are free to challenge both:
- arrest warrants, and
- bench warrants.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a Frank’s hearing?
- 2. What must the police show to obtain a search warrant?
- 3. How does a search warrant get issued in California?
- 4. Can a defendant or defense counsel challenge other warrants?
A Frank’s hearing is typically conducted after a search and seizure has taken place. If the defense is successful at the hearing, then the judge will throw out (or suppress) all of the evidence, or some, that was seized under the warrant.
1. What is a Frank’s hearing?
A Franks hearing is a proceeding before a judge where a defendant contests the veracity of a search warrant.1 The name stems from a real court case heard by the United States Supreme Court in Franks v. Delaware.
Note that in order to obtain a warrant, a police department officer must submit a search warrant affidavit to the judge. This document gives the reasons why he/she should allow law enforcement to conduct a search. Sometimes an affidavit will include statements from a confidential informant.
If a defendant believes that the affidavit contains false information, then the defendant:
- requests a Franks hearing to challenge the warrant, and
- he/she makes this request in a Franks motion.
A Franks motion can question the information in the affidavit by showing that:
- it contained a false statement or misstatements of facts,
- it contained false information or material information that was false,
- it was made with a reckless disregard for the truth, and/or
- it contained misleading information that the judge used to issue the warrant.2
Note, too, that the motion can show that authorities intentionally left out of the affidavit material information that would have negated the granting of a warrant.3
If the trial court finds the motion persuasive, then the judge holds a Franks hearing, which is an evidentiary hearing held in the judge’s chambers.4
During the hearing, the defense counsel presents evidence for why the search warrant should not have been ordered.
In addition, the judge at the suppression hearing may question the person who wrote the affidavit, who is known as the affiant. The judge asks questions to determine if the affidavit has:
- misrepresentations, or
Franks hearings are typically held after a search has been conducted. If the defense sets forth a substantial preliminary showing that the affidavit was false, then the judge may:
- grant the Franks order, and
- suppress, or throw out, some or all of the evidence seized under the warrant.
The “exclusionary rule” is the law that prohibits the use of illegally obtained evidence in a criminal trial. The rule was established by the Supreme Court in 1961.5
2. What must the police show to obtain a search warrant?
To obtain a lawful search warrant, law enforcement authorities must show or establish probable cause.6
“Probable cause” means a reasonable belief that criminal activity took place or is taking place.
The Fourth Amendment of the U.S. Constitution states that:
- no warrants shall be issued but upon probable cause, and
- the warrant must describe with particularity the place to be searched and the persons or things to be seized.
As to this last requirement, a search warrant affidavit must set forth the following information:
- the name of the person to be searched, or
- a specific description of the property to be searched, and
- a description of the property, thing, or things to be searched for.7
A judge rules on whether there is a finding of probable cause. He/she makes a probable cause determination by analyzing the facts of the case.
Note that there is no one set standard (such as preponderance of the evidence) that a judge will use in determining whether there is or is not probable cause to grant a search warrant application.
Search warrants are issued and signed by a California judge and can only be issued if he/she finds probable cause of a criminal act.
3. How does a search warrant get issued?
Search warrants are issued and signed by ajudge.
A judge can only issue the warrant if he/she finds probable cause of a criminal act.
Note that before making this finding, a judge may question:
- law enforcement officers,
- the prosecutor, and/or
- any witnesses named in the affidavit.
Affidavits can be written or oral. They can be submitted to a judge either in person or via:
- fax, or
All affidavits are submitted under penalty of perjury.
If issued, a search warrant directs a police officer to command a search for certain things or personal property listed in the warrant.
4. Can a defendant or defense counsel challenge other warrants?
Defendants can challenge other warrants besides search warrants.
For example, they can contest both:
- arrest warrants, and
- bench warrants.
A motion to quash an arrest warrant is a claim that an arrest warrant is invalid or illegal.
An arrest warrant is issued when a magistrate is satisfied that there are reasonable grounds to believe that a person has committed a crime.8
A bench warrant, on the other hand, is an arrest warrant issued by a judge in court for a person’s failure to appear in court.
Under Penal Code 978.5, a bench warrant may be issued when a defendant fails to appear after being:
- ordered to personally appear in court at a specific time and place,
- released from custody on bail and ordered to appear at a specific time and place,
- released from custody on their own recognizance and promise to appear,
- released upon citation and signed a promise to appear in court,
- authorized to appear by counsel and the court ordered that the defendant personally appear.9
To challenge or “recall” a bench warrant, a case needs to be put on the calendar in the courtroom where it was issued. Then an oral motion to quash or recall can be made to the judge.
A judge will recall a warrant if the defendant has complied with the original order to appear.
For additional help…
Contact our law firm for help.
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We appear in district courts throughout the state of California.
- See Franks v. Delaware (1978) 438 U.S. 154. See also United States v. Veloz (2020) 948 F.3d 418.
- People v. Box (1993) 14 Cal.App.4th 177.
- People v. Luttenberger (1990) 50 Cal.3d. 1. See also People v. Sandoval (2015) 62 Cal.4th 394.
- See, e.g., People v. Estrada (California Court of Appeals, 2003) 105 Cal.App.4th 783.
- Mapp v. Ohio (1961) 367 U.S. 643.
- Illinois v. Gates (1982) 462 U.S. 213.
- United States v. Cruz (2014) 774 F.3d 1278, 1290.
- See California Penal Code 813 and 827.1.
- California Penal Code 978.5.
About the Author
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.