Opinion
Case No. 1:06-CR-15 TS.
September 28, 2006
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S REQUEST FOR FRANKS HEARING
This matter comes before the Court on Defendant's Request for a Franks Hearing. To qualify for a Franks hearing to challenge a warrant, Defendant must make a substantial preliminary showing that the affiant knew of, or recklessly disregarded, the falsity of the informant's information and, if purged of those falsities, the affidavit would not be sufficient to support a finding of probable cause. If, and only if, he makes such a showing is he then entitled to a Franks hearing under which the court hears evidence on whether the affiant's statements were knowingly or recklessly false.
Docket No. 18. Defendant's request for the Franks hearing was made in connection with Defendant's Motion to Suppress found at the same docket number.
E.g. United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997); see also United States v. Avery, 295 F.3d 1158, 1166 (10th Cir. 2002).
United States v. Owens, 882 F.2d 1493, 1498-99 (10th Cir. 1989) (following Franks v. Delaware, 438 US. 213, 236 (1983)).
Defendant has not made the requisite substantial showing, and has even failed to allege, that the affiant knew of, or recklessly disregarded, the falsity of the informant's information. Moreover, Defendant has not shown that in the absence of any alleged falsity the affidavit would not be sufficient to support a finding of probable cause. It is therefore
ORDERED that Defendant's Request for a Franks Hearing (Docket No. 18) is DENIED. The hearing on the Motion to Suppress on the other grounds asserted will proceed as scheduled.