Can a defendant challenge the veracity of an affidavit of probable cause made in support of a search warrant?

California, United States of America


The following excerpt is from People v. Hagerl, A141752 (Cal. App. 2015):

"In Franks v. Delaware (1978) 438 U.S. 154 [98 S.Ct. 2674, 57 L.Ed.2d 667], the United States Supreme Court held that a defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed. (Id. at pp. 155-156 [98 S. Ct. at pp. 2676-2677].)" (People v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford).)

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