Franks hearing in Virginia

2025As Flint failed to make the threshold showing that the challenged statement was necessary to establish probable cause, we do not review the court’s determination that the statement was not made with reckless disregard for the truth.4 See Barnes, 279 Va. at 33 (explaining that a court first must set aside the alleged false statement to determine whether there was probable cause regardless of the statement and only then proceed to conduct a Franks hearing).

2025As Flint failed to make the threshold showing that the challenged statement was necessary to establish probable cause, we do not review the court’s determination that the statement was not made with reckless disregard for the truth.4 See Barnes, 279 Va. at 33 (explaining that a court first must set aside the alleged false statement to determine whether there was probable cause regardless of the statement and only then proceed to conduct a Franks hearing).

2011Thus, in this case, as we have done in numerous prior cases where the Commonwealth has failed to object to -9- the procedures followed in the trial court, “we treat the hearing on [appellees’] motion[s] to suppress as a Franks hearing, despite the absence of ‘any preliminary showing’ by [appellees] of police misconduct.” Williams, 26 Va. App. at 617 , 496 S.E.2d at 115 (emphasis in original) (quoting West, 16 Va. App. at 689 , 432 S.E.2d at 737 ).

2011Thus, in this case, as we have done in numerous prior cases where the Commonwealth has failed to object to -9- the procedures followed in the trial court, “we treat the hearing on [appellees’] motion[s] to suppress as a Franks hearing, despite the absence of ‘any preliminary showing’ by [appellees] of police misconduct.” Williams, 26 Va. App. at 617 , 496 S.E.2d at 115 (emphasis in original) (quoting West, 16 Va. App. at 689 , 432 S.E.2d at 737 ).

2017Subsequent cases have expanded the doctrine beyond affidavits containing outright falsehoods, entitling a defendant to a Franks hearing “when affiants omit material facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (internal quotation marks and citation omitted); see also Williams v. Commonwealth, 26 Va. App. 612, 618 , 496 S.E.2d 113, 116 (1998) (recognizing that “Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whe

2017Subsequent cases have expanded the doctrine beyond affidavits containing outright falsehoods, entitling a defendant to a Franks hearing “when affiants omit material facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (internal quotation marks and citation omitted); see also Williams v. Commonwealth, 26 Va. App. 612, 618 , 496 S.E.2d 113, 116 (1998) (recognizing that “Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whe

2024To be entitled to a Franks hearing, a defendant must first “make[] a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (emphasis added). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” United States v. Colkley, 899 F.2d 297, 300 (4

2024To be entitled to a Franks hearing, a defendant must first “make[] a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (emphasis added). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” United States v. Colkley, 899 F.2d 297, 300 (4

2024To be entitled to a Franks hearing, a defendant must first “make[] a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (emphasis added). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” United States v. Colkley, 899 F.2d 297, 300 (4

2024To be entitled to a Franks hearing, a defendant must first “make[] a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (emphasis added). “[I]f, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” United States v. Colkley, 899 F.2d 297, 300 (4

2017This finding is “not reversible unless plainly wrong or not supported by the evidence.” Moats v. Commonwealth, 12 Va. App. 349, 355 , 404 S.E.2d 244, 247 (1991).

2017This finding is “not reversible unless plainly wrong or not supported by the evidence.” Moats v. Commonwealth, 12 Va. App. 349, 355 , 404 S.E.2d 244, 247 (1991).

2024The Franks test also applies when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

2024The Franks test also applies when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2015Virginia has followed these federal rulings and stated that, “[t]he United States Supreme Court and all circuits of the United States Court of Appeals have held that a defendant is not entitled to a Franks hearing unless the defendant makes a substantial preliminary showing that the affidavit for the search warrant contains deliberately false or recklessly false misstatements or omissions necessary to a finding of probable cause.” Barnes v. Commonwealth, 279 Va. 22, 33 (2010) (citing Franks, 438 U.S. at 155-56 ; United States v. Wilburn, 581 F.3d 618, 621, n. 1 (7th Cir. 2009); United States v

2024“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

2024“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

2023However, “‘if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing [pursuant to Franks] is required.’” Barnes v. Commonwealth, 279 Va. 22, 31 (2010) (quoting Franks, 438 U.S. at 171-72 ); see Neustadter v. Commonwealth, 12 Va. App. 273, 278 , aff’d on reh’g en banc, 13 Va. App. 283 (1991).

2023However, “‘if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing [pursuant to Franks] is required.’” Barnes v. Commonwealth, 279 Va. 22, 31 (2010) (quoting Franks, 438 U.S. at 171-72 ); see Neustadter v. Commonwealth, 12 Va. App. 273, 278 , aff’d on reh’g en banc, 13 Va. App. 283 (1991).

2023However, “‘if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing [pursuant to Franks] is required.’” Barnes v. Commonwealth, 279 Va. 22, 31 (2010) (quoting Franks, 438 U.S. at 171-72 ); see Neustadter v. Commonwealth, 12 Va. App. 273, 278 , aff’d on reh’g en banc, 13 Va. App. 283 (1991).

2023However, “‘if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing [pursuant to Franks] is required.’” Barnes v. Commonwealth, 279 Va. 22, 31 (2010) (quoting Franks, 438 U.S. at 171-72 ); see Neustadter v. Commonwealth, 12 Va. App. 273, 278 , aff’d on reh’g en banc, 13 Va. App. 283 (1991).

2015Analysis A. Franks Hearing Standard of Review “We review de novo the trial court’s application of the law to the particular facts of the case.” Branham v. Commonwealth, 288 Va. 273 , 279, 720 S.E.2d 74 , 77 (2012) (citing Glenn v. Commonwealth, 275 Va. 123, 130 , 654 S.E.2d 910, 913 (2008)).

2015Analysis A. Franks Hearing Standard of Review “We review de novo the trial court’s application of the law to the particular facts of the case.” Branham v. Commonwealth, 288 Va. 273 , 279, 720 S.E.2d 74 , 77 (2012) (citing Glenn v. Commonwealth, 275 Va. 123, 130 , 654 S.E.2d 910, 913 (2008)).

2011See Lester v. Commonwealth, 30 Va. App. 495, 501 , 518 S.E.2d 318, 320-21 (1999).

2011See Lester v. Commonwealth, 30 Va. App. 495, 501 , 518 S.E.2d 318, 320-21 (1999).

2010Thus, a Franks hearing `serves to prevent the admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was misled into believing that there existed probable cause.' United States v. Friedemann, 210 F.3d 227, 229 (4th Cir.), cert. denied, 531 U.S. 875 , 121 S.Ct. 180 , 148 L.Ed.2d 124 (2000)." B.

2010Thus, a Franks hearing `serves to prevent the admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was misled into believing that there existed probable cause.' United States v. Friedemann, 210 F.3d 227, 229 (4th Cir.), cert. denied, 531 U.S. 875 , 121 S.Ct. 180 , 148 L.Ed.2d 124 (2000)." B.

2010The Franks test also applies when affiants omit material facts `with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.' United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986)." In United States v. Photogrammetric Data Services, Inc., 259 F.3d 229, 237-38 (4th Cir. 2001), the United States Court of Appeals for the Fourth Circuit once again articulated the principles that we must apply when a defendant asserts that a search warrant is void in violation of Franks v. Delaware, supra : "An affidavit supporting an application for a search warran

2010The Franks test also applies when affiants omit material facts `with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.' United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986)." In United States v. Photogrammetric Data Services, Inc., 259 F.3d 229, 237-38 (4th Cir. 2001), the United States Court of Appeals for the Fourth Circuit once again articulated the principles that we must apply when a defendant asserts that a search warrant is void in violation of Franks v. Delaware, supra : "An affidavit supporting an application for a search warran

2002Brandon failed to establish by a preponderance of the evidence that Officer Flornoy intentionally or recklessly misrepresented the truth in his affidavit when he described a "small white object." See Lanier v. Commonwealth, 10 Va. App. 541, 549 , 394 S.E.2d 495, 500 (1990). 2 2 Brandon elected to proceed in the Franks hearing solely on Officer Flornoy's affidavit and the transcript of Officer Misiano's preliminary hearing testimony.

2002Brandon failed to establish by a preponderance of the evidence that Officer Flornoy intentionally or recklessly misrepresented the truth in his affidavit when he described a "small white object." See Lanier v. Commonwealth, 10 Va. App. 541, 549 , 394 S.E.2d 495, 500 (1990). 2 2 Brandon elected to proceed in the Franks hearing solely on Officer Flornoy's affidavit and the transcript of Officer Misiano's preliminary hearing testimony.