Asked in Criminal Law for Oregon

Q: Do you go to court to challenge a search warrant (call witnesses, etc) or submit the challenge in writing?

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1 Lawyer Answer
Greg Freeze
Greg Freeze
  • Port Townsend, WA
  • Licensed in Oregon

A: Challenging a search warrant begins with a motion to suppress. The classic case that is nearing 30,000 citations from other cases in the country is Franks v. Delaware. Here is quote from that case.

"... where the defendant makes a substantial preliminary showing that a false statement knowingly and 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." Franks v. Delaware, 438 US 154, 155–56, 98 S Ct 2674, 2676, 57 L Ed 2d 667 (1978).

To get to a so-called Franks hearing, you must present a motion to the court supported by one or more affidavits that state with specificity what went wrong exactly in the warrant affidavit. That means, not any generalities, but specific incidents of the bad stuff used by the police to get a judge or magistrate to sign off on the warrant. If the motion and affidavit make a strong enough case as to wrong doing, and the judge thinks that, if your contention is correct, then maybe the warrant wouldn't have been issued (i.e., it was "necessary to the finding of probably cause") and then you get to have a Franks hearing.

If you win the argument at the Franks hearing (i.e., pretrial, no jury yet), then the court will suppress certain things that may go beyond even what was discovered in the search (i.e., fruits of the search).

Your odds are not strong in putting together a winning case of this sort without considerable legal training and experience. This whole line of argument also plays better from a third-party (i.e., your attorney). This is because, well, the judge and the attorneys on both sides know what evidence there is. Basically the defense attorney is arguing for a technical foul, where, in some cases, much of the good evidence for the prosecution is excluded from ever reaching a jury. If the defendant is lucky, the prosecutions case might not have enough stuff to go forward to trial.

Get a local attorney to go over your specific facts. This type of motion is heavily fact specific.

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