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Colorado Criminal Law – Attacking a Colorado Criminal Arrest Warrant – A “Franks” Challenge and Hearing To Dismiss The Charges

Colorado Criminal Law – Attacking a Colorado Criminal Arrest Warrant – A “Franks” Challenge and Hearing To Dismiss The Charges

By Colorado Criminal Defense Lawyer – H. Michael Steinberg – for the Defense of Criminal Charges – Criminal Trial Law

This web page will discuss a Colorado attack on an Arrest Warrant for lack of probable cause – and seeking a dismissal of the case on the base that the arrest warrant allegedly contained false statements which must be stricken under the standards of Franks v. Delaware, 438 U.S. 154 (1978) and that, without consideration of these stricken statements, the arrest warrant does not provide probable cause for the Defendant’s arrest.

Analysis – A motion is filed on behalf of the Defendant for a Franks hearing.

At the hearing date, the judge takes testimony and reviews any submissions by the parties to meet the standards in the Franks case. If the Motion is granted – the charges against Defendant are then dismissed.

The Affidavit – Facts That are Alleged to Support the Arrest Warrant

An Affidavit for Arrest is signed under oath and is the basis for the issuance of an arrest warrant for certain crimes allegedly committed stated in the warrant.

Applicable Colorado Law – The Veracity Hearing

The Fourth Amendment to the United States Constitution proscribes the issuance of any warrant except upon probable cause.

A defendant may challenge and have stricken a false statement contained in a warrant in a “veracity proceeding” by alleging and establishing by a preponderance of evidence each of the following: “

(1) …a good faith basis in fact for the challenge, based on affidavits submitted in support of the motion to suppress,

(2) [which] set forth with specificity the ‘precise statements challenged,’

(3) [and] establish at the veracity hearing that there are false statements in the affidavit, and

(4) establish that the false statements were the product of ‘intentional falsehood or reckless disregard for the truth’ by ‘the officer-affiant’ ….”

The court need not conduct a veracity hearing unless “the allegedly false statement is necessary to the finding of probable cause, and suppression is to occur only if the defendant proves perjury or reckless disregard and it then appears that with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause.”

If after having applied the factors set forth in Franks / Flores, the Court concludes that these statements must be stricken from the Affidavit for Arrest and that in the absence of these statements there is no probable cause for Defendant’s arrest for any of the crimes charges, the charges against Defendant must be and are dismissed.