Challenging a Search Warrant

In United
States v. Spears
, (March 8, 2012) the 7th Circuit Court of
Appeals found that even though there were misrepresentation in the affidavit
presented to the magistrate judge, by the police, there was still sufficient
evidence to support a finding of probable cause. 

On August 1, 2008 an Indiana police officer acting as a
federal agent submitted an affidavit in support of a search warrant for the
home of Defendant Spears.  The affidavit
stated that a confidential informant had been in the basement of Defendant’s
home and had observed multiple rooms with marijuana plants, a water system,
growing lights, fertilizer, and PVC piping from the basement to outside the

The affidavit also stated that on July 31, 2008 officers
conducted a trash pull and found a marijuana stem in the trash.  The affidavit further stated that the
electric company reported higher than normal electrical usage for Defendant’s
home compared to similar homes.  The magistrate
judge granted the search warrant and the warrant was executed on August 6,

Defendant raised two main points, first that even though the
affidavit stated “I received” information about the electrical usage, the information
was actually received from an FBI analyst and passed on to the affiant.  Second, there was contradictory testimony as
to whether this, electrical usage information could be provided over the
telephone without a subpoena. 

Franks v.
, 438 U.S. 154 (1978), held that when a defendant makes a
substantial preliminary showing that the search warrant is based on intentional
or reckless misrepresentations, and those statements were necessary to the
finding of probable cause, he may challenge the constitutionally of the

At the Franks hearing, if the allegations of
intentional or reckless misrepresentations are established by a preponderance
of the evidence, the false statements are stricken and if the remaining
contents of the affidavit fail to establish probable cause the search warrant
is void and the evidence obtained will be suppressed.  So the court conducting the hearing must
first determine whether the defendant has shown by a preponderance of the
evidence that the false information was provided intentionally or recklessly, and
if the affidavit is presented without that information if it is sufficient to
establish probable cause.  These false
statements in the search warrant affidavit can be provided by either the
affiant or a government agent made to the affiant.  In either case the defendant must establish
either intentional or reckless disregard of the truth.

The initial inquiry for a Franks hearing is whether
the misinformation was included, or material information was excluded,
intentionally or with reckless disregard of the truth.  

When probable cause is based on information from an
informant, the court considers the extent to which the police have corroborated
the informant’s statements, the degree to which the informant’s information is
first hand, the amount of details provided and the time interval between the
events and the application for search warrant. 
Here in this case, the officers attempted to corroborate the informant’s
information by verifying the residence of Spears, the finding of a cannabis
stem, and the finding of equipment used in marijuana growing operations. 

The court thus concluded that there was
sufficient evidence in the affidavit and denied the Defendants motion.

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