The Texas Prosecutor, May-June 2016, Volume 46, No. 3

Don’t fear the Franks motion

Though defense counsel’s accusations that an officer lied in an affidavit for search warrant might strike panic in a prosecutor’s heart, you need not fear.

I recently had a misdemeanor driving while intoxicated (DWI) case where defense counsel asserted in his motion to suppress the blood draw results that the peace officer lied in the affidavit for a search warrant, even going so far as to accuse the officer of perjury. In my case, the officer had not administered field sobriety tests because the defendant had just been in a major collision where she struck another vehicle and injured the driver, and it is the general policy of the Corpus Christi Police Department (CCPD) not to ask or require a suspect to perform SFSTs when she has been in a wreck.
    In Nueces County, the police department’s affidavit for search warrant contains a paragraph that reads, “I requested performance of field sobriety tests by the suspect and recorded the results and my observations of the suspect’s performance of filed [sic] sobriety tests and signs of intoxication in the attached SFST scoring sheet, which is attached hereto and incorporated herein for all purposes.” This is stock language included in all Nueces County affidavits for search warrants (see below for a scan of the affidavit), and it implies that all DWI suspects undergo SFSTs. Because of the wreck in my case, the officer did not perform the tests and noted such on the Field Sobriety Incident Report, where he checked the boxes to say that he did not administer SFSTs to the defendant (see the attachment below)—but admittedly there was a discrepancy between the stock language in the affidavit and the checkboxes on the worksheet.
    Defense counsel accused the officer of lying to obtain the search warrant simply because he had left in the aforementioned stock language. Based on this error in the warrant, he filed a Franks motion, asking the search warrant be suppressed. This motion is a useful tool for defense attorneys but relatively easy for prosecutors to defeat.
     When defense counsel files a Franks motion, he is alleging that an officer was intentionally untruthful in obtaining a warrant. More specifically, the motion attacks a warrant on the ground that an officer intentionally lied or misstated facts that are the basis for the probable cause and therefore misled the judge to obtain the warrant. A Franks motion will usually arise in the context of a suppression hearing, but it can also be the subject of its own hearing.    

The Franks decision
The Franks motion is derived from the United States Supreme Court case Franks v. Delaware,1 which held, “Where the defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant with a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”2
    However, if after a Franks hearing, the false material is set aside and there remains sufficient content in the affidavit to support a finding of probable cause, the warrant will stand. Additionally, “allegations of negligence or innocent mistake are insufficient.”3 Defense counsel cannot simply pick any discrepancy and claim that it was done intentionally but rather must affirmatively prove that it rises to the level of knowingly false.
    The simple truth is that we expect a lot of our officers, and they sometimes make mistakes. Officers cannot be expected to focus on only one thing during an investigation involving DWI or a crash—they are performing numerous tasks at once, often late at night, in dangerous areas, and under a time crunch. (That was certainly true for my officer: He encountered the defendant and her crashed car at a major Corpus Christi intersection that’s always busy, and the woman in the other car was badly bruised and having chest pain.) To further complicate the issue, many police departments, like ours, use stock forms for search warrants, and a lot of times the officers who are writing reports are the newest on the force, and they may not have a lot of experience with these forms.

Defeating the motion
The court asked defense counsel and myself to write briefs on the Franks motion. In my brief I reiterated the holding in Franks and pointed out that defense counsel failed to make the required “substantial preliminary showing” that the officer knowingly, intentionally, or with reckless disregard for the truth included a false statement in the warrant affidavit.4 My argument was that inclusion of stock language in the affidavit did not negate the search warrant because that stock language was not meant to manufacture probable cause. In fact, the officer had an abundance of probable cause to stop the defendant. The defendant admitted she was alone in the car (so she was clearly the driver) and could be heard crying on the dash-cam video, asking if she had hurt the other motorist. Her blood test came back with a .187 BAC.
    Also helpful to me was that for all DWI stops, CCPD officers complete a worksheet for standardized field sobriety tests. It includes checkboxes next to the horizontal gaze nystagmus (HGN), one-leg stand, and walk-and-turn tests to indicate whether the test was performed. The officer in my case checked boxes for all three SFSTs that clearly indicated that the tests were not performed. I pointed out to the court that the officer had to affirmatively mark on the scoring sheet that none of the three field sobriety tests were performed, whereas the stock language is a standard paragraph that is included in every affidavit for search warrant in Nueces County.
    I also called the officer to the stand during the Franks hearing. As Cates v. State says, “When a defendant challenges the warrant affidavit on the grounds that it contains known falsehoods, the trial court is not limited to the four corners of the affidavit,”5 so an officer’s testimony at a suppression hearing can be used to address and clarify the allegations of untruthfulness. My officer testified that he made a mistake by not striking the stock language, but it was not purposeful or intentional at all. When the court heard from the officer, it was clear that he did not act with the intent to manufacture probable cause—he had simply overlooked the stock language in the affidavit.
    After reading counsels’ briefs, the court ruled in the State’s favor. The defendant ended up pleading guilty to DWI above a 0.15 and received a jail sentence.

Conclusion
In conclusion, don’t fear the Franks motion. It is understandable that allegations of untruthfulness against our officers strike fear into the hearts of prosecutors, but in most cases it is simply an intimidation tactic from the defense to throw the State off-guard. Face it head on, let the officer explain the realities of getting a blood search warrant, and do your research—with a little bit of time and dedication, the State can easily prevail over this type of motion.

Endnotes

1 Franks v. Delaware, 438 U.S. 154 (1978).
2 Id. at 155-156.
3 Id. at 171.
4 Id. at 154, 155-156.
5 Cates v. State, 120 S.W.3d 352, 355 n. 3 (Tex. Crim. App. 2003.)