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True and Accurate Warrants: If you can’t find one, make one. By L. Michael Golden; Dec 2001 All too often, warrants are issed based on innacurate information. Such a warrant can be challenged and tested according to the information that should have been provided. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Garrison, 118 Wn.2d 870, 827 P.2d 1388 (1992)State v. Garrison, 118 Wn.2d 870, 827 P.2d 1388 (en banc 1992). If the officer who requests the warrant “knowingly and intentionally, or with reckless disregard for the truth” includes a false statement in the application for warrant. The test is one of judicial deception. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)To establish that judicial deception has occurred, the defendant must (1) make a substantial showing of deliberate falsehood or disregard for the truth and (2) establish that, but for the dishonesty, the warrant would not have been issued. Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995)Hervey v. Estes, 65 F.3d 784, 788-9 (9th Cir. 1995). To make this determination, the application for warrant should be corrected and supplemented, and the Court should then make a determination whether the application as corrected established probable cause. United States v. Stanert, 762 F.2d 775, as amended, 769 F.2d 1410 (9th Cir. 1985). Any search or seizure under the original warrant will be held to violate the Fourth Amendment where the corrected application does not establih probable cause due to intentionally or recklessly omitted facts, including the omission of facts “required to prevent technically true statements in the affidavit from being misleading.” Id. 762 F.2d at 781. Thus, given the stakes at issue in most warrant situations, close attention should be paid to what the officer knew at the time the warrant was requested and what information was actually included in the application. Thanks to Franks, if the application is inaccurate, you can make it accurate and show the Court the difference. |
