Defendant doesn’t get an opportunity to test the truth of the affidavit under Franks in a hearing without making a prima facie case of materiality and wilful falsity. United States v. Payne, 2016 U.S. Dist. LEXIS 127287 (W.D.N.C. Aug. 9, 2016), adopted, 2016 U.S. Dist. LEXIS 127285 (W.D.N.C. Sept. 19, 2016):
In the Memorandum in support of Defendant’s request for a Frank’s Hearing, Defendant states, “in order to assess the truth of the information supplied by law enforcement the application therefore, the Court is required to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)”. That statement is incorrect. As stated in Franks, an attack upon the search warrant must be more than conclusory and must be accompanied by a statement of supporting reasons, including affidavits or sworn or otherwise reliable statements of witnesses. The Defendant, in her pleadings, did not support her motion by affidavits, sworn or otherwise, nor was there any explanation as to why such information was not filed.
Despite the failure of Defendant to support the request for a Franks hearing, the undersigned, out of an abundance of caution, provided Defendant with a full opportunity to call witnesses and present evidence so the Court could determine whether or not Defendant could meet her burden of proof even to the extent of allowing Defendant to call witnesses repeatedly.