Steve Palmer [00:00:00]:

All right, Steve Palmer here from LawyerTalkPodcast.com this is another Q and A session. If you've got a question, just go to LawyerTalkPodcast.com and send me a question. That's what Brandon did today, and we're going to answer it right here. Let's get to it. Hi. I'm currently in the middle of a criminal case, and my attorney has discussed filing a Franks motion. My question is, what is a Franks motion? What would be the benefits versus a motion to suppress? Thank you for the podcast. It's been extremely insightful and informative.

Steve Palmer [00:00:28]:

Thank you. Throughout my current situation. First and foremost, look, this is not legal advice. I'm not giving people legal advice. And it sounds like Brandon is well represented. And these are questions that I'm sure your attorney can answer, wherever that may be. But I'm going to talk in general a little bit about what Brandon's bringing up, and what he's talking about is a search warrant. So what happens, generally speaking, is the police want to search somebody's house, or they want to search your phone or the contents of your phone, or they want to search something that you have an expectation of privacy in.

Steve Palmer [00:01:00]:

What the process is, typically speaking, is under the Fourth Amendment, you've got to go to the court or a detached magistrate, so is what the law would say. And you've got to submit a statement. And the statement could be just a sworn statement. Sometimes cops go in and they actually give testimony on the record, or they can type out an affidavit, an affidavit being a sworn statement that you attest to after you type it out or write it out. And that statement has to establish something called probable cause, which means the police have to explain to the judge what the facts are that give rise to their conclusion that they believe the place to be searched, the item to be searched, has evidence of criminal activity. And there's got to be something called a quote, nexus. I'm going to use some fancy legal words, but I'll explain it. Nexus, meaning a connection.

Steve Palmer [00:01:47]:

They can't just say, yeah, we think this guy's a criminal and we think he's got drugs in his house, therefore we want to search it. There has to be a connection. There has to be something more like this. We've been watching this suspect for, I don't know, several months. We have watched known drug users go to and from his house, knock on the door, exchange items for money, and then leave. We have another informant who is not going to be named here, but we have an informant who says that he has purchased drugs from this suspect multiple times. We know that he gets shipments on Tuesdays, and this is Tuesday afternoon. And we therefore believe that there will be drugs in the house located at X address.

Steve Palmer [00:02:32]:

That would be like a bulletproof type of search warrant affidavit. So the judge signs the warrant, says, all right, here you go. Go forth and prosper. Execute this warrant. And the police go in, they search the house, they find the drugs, and the rest is history. But let's just say the affidavit that the police or the statement that the police give to the judge isn't so detailed, isn't so, or is a lot more sketchy or vague or what we would call in the industry, quote, bare bones. Meaning that really doesn't establish much of a nexus. It really doesn't explain why they think drugs will be there.

Steve Palmer [00:03:08]:

It doesn't explain why they think they're going to find drugs. Evidence of crimes. Then we file something called a. Well, the police go execute it, they still find the drugs, and then they hire us. They hire me to represent the suspect, hires me to represent them, and we go to court. And the first thing we do is we proceed through the defense path, is we file a motion to suppress. And we're basically alleging, look, Judge, the cops did not have probable cause. They did not have sufficient information in that search warrant affidavit or the search warrant statement to establish probable cause.

Steve Palmer [00:03:41]:

Therefore, under something called the exclusionary rule, which we've talked about before. But the exclusionary rule basically says if evidence seized unlawfully or with an invalid search warrant can't be used in a courtroom, I could talk for hours on the exclusionary rule. If you look it up in the Constitution, you're not going to find it. But it still exists because the US Supreme Court says so anyway, under the exclusionary rule, you have to suppress the evidence and can't be used against my client in a courtroom. Now, what's all that mean? Well, here's what that means. Brandon is talking about a motion to suppress or a Frank's motion. All right, here's where he's going with this. A motion to suppress basically says the four corners, meaning the paper.

Steve Palmer [00:04:29]:

Picture an 8 and a half by 11 sheet of paper. The four corners of the search warrant affidavit does not contain sufficient information to establish probable cause. What the police can't do, what the prosecutors can't do, is try to supplement that later. They can't say, I'm going to add to that. You know, the Cops knew a whole lot more. Here's what they knew, here's what they really knew. No go. They can't do that.

Steve Palmer [00:04:52]:

It's got to be in the four corners of the warrant. When they presented the warrant to the neutral and detached magistrate who signed it. And that has to establish probable cause. It's not good enough to do it later. You have to do it in real time. And if they don't, the judge, you know, in theory, based on my motion to suppress, looks at it and says, I agree with you, Mr. Palmer. The four corners of the warrant does not establish probable cause.

Steve Palmer [00:05:14]:

Bye bye. Well, let's say the four corners of the warrant does establish probable cause. Four corners do, does whatever. You get it anyway. The four corners establish probable cause, the search warrant is good enough. But then we do some investigating, we do some poking around, we find out that the police lied in the search warrant affidavit. So not just like screwed up, but lied. And we call these material, meaning it's an important lie.

Steve Palmer [00:05:42]:

So the police actually misrepresented, misstated, lied in the search warrant affidavit. And even though the four corners establish probable cause, it's based on a lie. Or conversely, even it's a bigger stretch. But sometimes, conversely, they leave out critical information that would have moved, that would have changed everything significantly. I just worked on a homicide case where the police did exactly that. There was information that was critical to the probable cause determination, but the police just left it out. And they said, wait, you know, we didn't think it was that important, but it was important and it was significant. And had that information been in the search warrant, it might have changed the probable cause determination.

Steve Palmer [00:06:22]:

Franks versus Delaware is a case that came out of the US Supreme Court. I believe in. I'll double check to get it right. 78. I was right. Franks vs. Delaware came out in 1978, established the defendant's right to challenge the truthfulness of statements made in a search warrant affidavit. And that can itself require suppression.

Steve Palmer [00:06:41]:

The lie itself, even if there's probable cause, can establish suppression. So really, what we're doing here is two things, and they're not mutually exclusive. In other words, you can do both. You can file a motion to suppress arguing that the four corners of the warrant does not establish probable cause, the warrant's not good enough. And then you can also file a Franks motion and say, well, even if it is good enough, the police lied, they told you something, judge, or they told the magistrate, the issuing magistrate, that something that's not true. Or they left out something that was critical that would have changed the landscape of the probable cause analysis. So back to the question. What do I do strategically? Well, typically, lawyers doing what I do would raise both.

Steve Palmer [00:07:23]:

We would raise both a motion to suppress, and we would challenge. We would follow Frank's motion. Now, here's the difference in how things proceed. I guess procedurally speaking, typically, if I just file a motion to suppress, since we are only looking at the four corners of the search warrant affidavit, we don't really need to put on testimony. In fact, there's some law out there that says you're not allowed to put on testimony because it's irrelevant. All that matters is what's in that search warrant. So I can just take the warrant, dissect it, make my arguments, tell the judge, hey, look, judge, read this. It's not good enough.

Steve Palmer [00:07:56]:

We don't need any testimony. We don't need the cops coming in here and telling us what they should have done and could have done or would have done if they had been better at it. It's right here or it's not right here. Whatever the case, Frank's motion is different. I get to subpoena cops to come in, and we get to have a hearing on it. In fact, the prosecutor has the burden of coming forward and showing that there was good fai, that the police did not lie, that the police didn't violate Franks, that there was probable cause. It changes everything when you have a Franks motion, because now I can cross examine cops. I can present my own evidence at a hearing, testimonial hearing, or whatever other documents we might have.

Steve Palmer [00:08:35]:

You can think like, all right, if there are police reports that provided information that the police excluded, or if there are police reports that establish a police lie, that's the kind of stuff we would do at a Frank's hearing that would be otherwise irrelevant at a typical motion to suppress, a search warrant hearing. All right, that was a little bit more long winded than I wanted it to be, but it's a great question. I appreciate it. Now, generally speaking, look, folks, if you're charged with a crime and you're represented by a lawyer, call your lawyer. These are questions that any competent criminal defense lawyer should be able to answer, should be able to strategize with you, should be able to discuss with you. I do it all the time. I think it's important to have that kind of communication with my clients. And if you feel like you're not getting it, it's probably not a bad thing.

Steve Palmer [00:09:13]:

It's probably more like you just need to pick up the phone, send an email, send a chat, whatever you do to communicate with your attorney and just ask and figure out the strategy. Sometimes clients really want to dig into this with us. Sometimes they don't care. They just say, take care of it. Either way, you know what to do now. So lawertalkpodcast.com if you've got your own question, I'll answer it right here. I promise. Off the record, on the air till now.