Recently, we were able to obtain a dismissal of charges in a serious felony drug case because the regional drug team (BAYANET) lied in the search warrant affidavit.
In this case, the police alleged that they used a helicopter to fly over the target house and viewed it with a FLIR (forward looking infrared) camera. FLIR cameras are used to detect heat signatures. After doing the FLIR fly-over the police sought a search warrant to get into the house. In order to obtain this second search warrant, the police told the magistrate who issued the warrant that they had observed a heat signature inconsistent with nearby structures, but consistent with the use of grow lights used to maintain a marijuana growing operation.
After reading the search warrant affidavit, Josh Blanchard obtained a copy of the video that was produced by the FLIR camera so that it could be reviewed by an independent expert. As it turned out, the FLIR video showed that the structure was not emitting an unusual heat signature. In fact, the structure looked very similar to all of the surrounding houses.
Josh filed a motion seeking a Franks hearing to challenge the truthfulness of the statements made by the officers to the magistrate. The law states that if the affiant who procured the search warrant made a false statement either knowingly and intentionally or with reckless disregard for the truth, and if that false statement is necessary to the finding or probable cause, a hearing must be held. Franks v Delaware, 438 US 154, 155; 98 S. Ct. 2674; 57 L. Ed. 2d 667 (1978). “In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by 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.” Id.
Here, it was clear that the affiant, a BAYANET officer, had misled the magistrate in obtaining a search warrant. Recognizing that the just outcome was a dismissal, the Prosecuting Attorney chose to dismiss the charges prior to the hearing.
If you believe that a police officer or drug enforcement team officer lied to the court in order to obtain a search warrant, you should consult with a lawyer to determine whether a Franks hearing is appropriate.