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Colorado Criminal Law – Attacking a Colorado Criminal Arrest Warrant – A “Franks” Challenge and Hearing

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.

Typically a Defendant will file A Defendant’s Motion to Dismiss and Request for a Franks Hearing,

For the reasons set forth below, the Motion is granted and the charges against Defendant are dismissed.

Applicable Law

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, in addition..

…suppression of the statement 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.

Legal Analysis of a Colorado Challenge to an Affidavit in Support of Search Warrant and or Arrest Warrant.

A Colorado Defendant must satisfy an initial two-part requirement for a so called “Franks hearing.”

The Court must – for the Defendant to win – conclude that there are false statements in the Affidavit for Arrest and that these statements are not only necessary to, but are in fact a vital sine qua non to, any finding of probable cause against Defendant.

Absent these the statements, the Court must find that there is no probable cause for concluding that Defendant committed the crime. No other independent basis can be alleged in the Affidavit for Arrest which would support the arrest for any of the alleged crimes.

Finally, no other justification, apart from (at least) a reckless disregard for the truth, could exist for the inclusion of these statements in the Affidavit for Arrest.

After applying these factors – if the Defendant is to be successful – the Court must strike the statements from the Affidavit for Arrest and must then find that in the absence of these statements there is no probable cause for Defendant’s arresT for any of the crimes charges.

Our Denver, Colorado based firm at the Steinberg Colorado Criminal Defense Law Firm is known for our effective legal strategies, which we customize to each case so that we can secure the best outcome possible. Depending on the specifics of your criminal case, there may be motions that we can file to suppress certain evidence or get the charges against you reduced or dismissed. If warranted, we may be able to reach a plea agreement with prosecutors. We will aggressively defend you in court if your case goes to trial.

Do NOT talk to anyone in law enforcement until you’ve retained the services of a Colorado criminal defense lawyer. Call the Steinberg Colorado Criminal Defense Law Firm at (303) 627-7777 or contact us online.

Steinberg Colorado Criminal Defense Law Firm serves criminal defendants in the Greater Denver area and in other cities and counties throughout Colorado. Our law offices are located on I-25 at Arapahoe Road – adjacent to an RTD Light Rail stop.

H. Michel is available for consultation after hours and on weekends.

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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