Challenging A Warrant By Challenging the Affidavit in A Franks Hearing

• Jurisdiction: Maryland

XIV. Challenging a warrant by challenging the affidavit in a Franks hearing

Reviewing courts normally do not go beyond the "four corners" of the warrant. Brooks v. State, 13 Md. App. 151, 156-57 (1971), cert. denied, 264 Md. 746 (1972). They normally review exactly what the issuing magistrate reviewed. In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the Supreme Court held that the defendant may go beyond the "four corners" of the warrant, under limited circumstances, to challenge the warrant by challenging the affidavit in support of the warrant (holding that to challenge an affidavit, there must be allegations of deliberate falsehood or reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. The challenger should point out specifically the portion of the warrant affidavit that is claimed to be false, and the allegations should be accompanied by affidavits or other reliable statements of witnesses. Id. at 171.

The defendant must make a substantial preliminary showing, using affidavits and/or other documents, to establish that (a) the warrant was based on an affidavit that included knowingly false statements and/or incorrect statements made with reckless disregard for the truth; and (b) when the improper information is excised from the warrant, the remaining information is insufficient to establish probable cause. See Edwards v. State, 350 Md. 433, 450-51 (1998) (insufficient evidence for a Franks hearing since the attack on the affidavits were conclusory and devoid of supporting facts); Emory, 101 Md. App. at 633 (no evidence of "deliberate disregard for the truth"); Braxton v. State, 123 Md. App. 599, 644-46 (1998) (incorrect identification not intentional or reckless disregard for the truth).

A showing of negligence or innocent mistakes is insufficient to make a substantial preliminary showing for Franks. Rosenberg v. State, 129 Md. App. 221, 245 (1999).

If the defendant makes a substantial preliminary showing by preponderance of the evidence of intentional or reckless disregard for the truth, he is entitled to a...