Franks hearing in Utah

2021See Nielsen, 727 P.2d at 191 (“By an extension of reasoning, the same test applies when a misstatement occurs because information is omitted . . . .”); see also State v. Fuller, 2014 UT 29, ¶ 25 , 332 P.3d 937 . ¶24 To receive a Franks hearing for an alleged factual omission, a defendant must, by a “detailed offer of proof,” (1) make a “substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and (2) demonstrate “that the affidavit if supplemented by the omitted information would not h

2021See Nielsen, 727 P.2d at 191 (“By an extension of reasoning, the same test applies when a misstatement occurs because information is omitted . . . .”); see also State v. Fuller, 2014 UT 29, ¶ 25 , 332 P.3d 937 . ¶24 To receive a Franks hearing for an alleged factual omission, a defendant must, by a “detailed offer of proof,” (1) make a “substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and (2) demonstrate “that the affidavit if supplemented by the omitted information would not h

2021See Nielsen, 727 P.2d at 191 (“The 20190810-CA 10 2021 UT App 83 State v. Gonzalez obvious purpose of Franks and its progeny is to avoid suppressing evidence when the actual facts, if known to the magistrate, would have resulted in a finding of probable cause.”). ¶25 Here, the district court granted Gonzalez’s request for a Franks hearing and voided the search warrants issued in this case based on its determination that Detective “recklessly omitted material information that would have been critical to the finding of probable cause.” Pointing to the three omissions mentioned previously, see su

2021See Nielsen, 727 P.2d at 191 (“The 20190810-CA 10 2021 UT App 83 State v. Gonzalez obvious purpose of Franks and its progeny is to avoid suppressing evidence when the actual facts, if known to the magistrate, would have resulted in a finding of probable cause.”). ¶25 Here, the district court granted Gonzalez’s request for a Franks hearing and voided the search warrants issued in this case based on its determination that Detective “recklessly omitted material information that would have been critical to the finding of probable cause.” Pointing to the three omissions mentioned previously, see su

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022Id.; see also State v. Fuller, 2014 UT 29, ¶ 26 , 332 P.3d 937 . ¶20 By an extension of reasoning, Utah and federal courts have applied the Franks standard to alleged omissions of material facts.

2022Id.; see also State v. Fuller, 2014 UT 29, ¶ 26 , 332 P.3d 937 . ¶20 By an extension of reasoning, Utah and federal courts have applied the Franks standard to alleged omissions of material facts.

2022Although not every recited fact need be correct, the United States Supreme Court in Franks v. Delaware explained that the assertions must be “truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” 438 U.S. at 165 (cleaned up). ¶19 If a defendant believes that the investigating officer’s assertions in support of the search warrant were untruthful, the defendant may challenge the warrant and seek an evidentiary hearing—a Franks hearing—to prove that claim.

2022Although not every recited fact need be correct, the United States Supreme Court in Franks v. Delaware explained that the assertions must be “truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” 438 U.S. at 165 (cleaned up). ¶19 If a defendant believes that the investigating officer’s assertions in support of the search warrant were untruthful, the defendant may challenge the warrant and seek an evidentiary hearing—a Franks hearing—to prove that claim.

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022See State v. Ogden, 2018 UT 8 , ¶ 24 n.3, 416 P.3d 1132 (“An appellant that fails to devote adequate attention to an issue is almost certainly going to fail to meet its burden of persuasion.” (cleaned up)). ¶30 Next, we address Defendants’ contention that “[t]here are several instances of intentionally omitting information that would be crucial to an adequate analysis for the issuance of a search warrant.” Although Defendants complain of “several” omissions, they identify only one: Officer’s alleged omission that 20200230-CA 12 2022 UT App 136 State v. Hebeishy & Sadler “there had never been a

2022See State v. Ogden, 2018 UT 8 , ¶ 24 n.3, 416 P.3d 1132 (“An appellant that fails to devote adequate attention to an issue is almost certainly going to fail to meet its burden of persuasion.” (cleaned up)). ¶30 Next, we address Defendants’ contention that “[t]here are several instances of intentionally omitting information that would be crucial to an adequate analysis for the issuance of a search warrant.” Although Defendants complain of “several” omissions, they identify only one: Officer’s alleged omission that 20200230-CA 12 2022 UT App 136 State v. Hebeishy & Sadler “there had never been a

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2022To warrant a Franks hearing for an alleged omission, “a defendant must, by a detailed offer of proof,” “make a substantial showing” that the investigating officer “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading” and “demonstrate that the affidavit if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.” Id. ¶ 24 (cleaned up). ¶21 Further, federal courts have allowed defendants to seek a Franks hearing for allegedly false statements or misleading omissions

2021See State v. Garcia, 2007 UT App 228, ¶ 8 , 164 P.3d 1264 (“In Franks, the Supreme Court held that a search warrant based on deliberate falsehoods or a reckless disregard for the truth must be evaluated to determine whether the affidavit supporting the warrant would still support probable cause once the false information is removed.” (cleaned up)). ¶18 Following the Franks hearing and additional argument, the district court granted Gonzalez’s motion to suppress.

2021See State v. Garcia, 2007 UT App 228, ¶ 8 , 164 P.3d 1264 (“In Franks, the Supreme Court held that a search warrant based on deliberate falsehoods or a reckless disregard for the truth must be evaluated to determine whether the affidavit supporting the warrant would still support probable cause once the false information is removed.” (cleaned up)). ¶18 Following the Franks hearing and additional argument, the district court granted Gonzalez’s motion to suppress.

2020See id. (“A defendant is not entitled to suppression of the fruits of a search warrant, even based on intentional falsehoods or omissions, unless probable cause is lacking once the false information is purged and any omitted information is considered.”).

2020See id. (“A defendant is not entitled to suppression of the fruits of a search warrant, even based on intentional falsehoods or omissions, unless probable cause is lacking once the false information is purged and any omitted information is considered.”).

2020See United States v. White, 850 F.3d 667, 673 (4th Cir. 2017).

2020See United States v. White, 850 F.3d 667, 673 (4th Cir. 2017).

2014See United States v. Iiland, 254 F.3d 1264 , 1267 n. 1 (10th Cir.2001). 27 .

2014See United States v. Iiland, 254 F.3d 1264 , 1267 n. 1 (10th Cir.2001). 27 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2014United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986). 11 .

2014United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986). 11 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2014United States v. Snow, 228 Fed.Appx. 203, 205-06 (3d Cir.2007) (unpublished) ("We review for plain error a defendant's claim that the district court erred by not holding a Franks hearing or suppressing evidence on the basis of a fraudulent omission in the warrant affidavit, when the defendant failed to request a Franks hearing or raise a challenge to the truthfulness of the affidavit securing the warrant before the district court."). 25 . 2004 UT 94, ¶ 15 , 100 P.3d 1222 (internal quotation marks omitted). 26 .

2014United States v. Snow, 228 Fed.Appx. 203, 205-06 (3d Cir.2007) (unpublished) ("We review for plain error a defendant's claim that the district court erred by not holding a Franks hearing or suppressing evidence on the basis of a fraudulent omission in the warrant affidavit, when the defendant failed to request a Franks hearing or raise a challenge to the truthfulness of the affidavit securing the warrant before the district court."). 25 . 2004 UT 94, ¶ 15 , 100 P.3d 1222 (internal quotation marks omitted). 26 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2014Lombardi v. City of El Cajon, 117 F.3d 1117, 1123 (9th Cir. 1997) (internal quotation marks omitted); see Colkley, 899 F.2d at 300 ("'The 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." (internal quotation marks omitted)); State v. Missouri, 337 S.C. 548 , 524 S.E.2d 394, 397 (1999) (same). 10 .

2007We will not address a legal argument raised for the first time on appeal when the opposing party did not have notice that it should have presented evidence below to respond to that *1268 legal argument. 4 Therefore, we do not consider the officers' alleged fllegal entry on appeal; rather, we continue with the Framks analysis. 118 Courts have construed Franks to apply to illegally obtained evidence referenced in a search affidavit See United States v. Walton, 56 F.3d 551, 554 (4th Cir. 1995) (noting that the trial court appropriately followed the Franks doctrine when it "examined the search war

2007We will not address a legal argument raised for the first time on appeal when the opposing party did not have notice that it should have presented evidence below to respond to that *1268 legal argument. 4 Therefore, we do not consider the officers' alleged fllegal entry on appeal; rather, we continue with the Framks analysis. 118 Courts have construed Franks to apply to illegally obtained evidence referenced in a search affidavit See United States v. Walton, 56 F.3d 551, 554 (4th Cir. 1995) (noting that the trial court appropriately followed the Franks doctrine when it "examined the search war

2007See United States v. Dessesaure, 429 F.3d 359, 367 (1st Cir.2005) ("[Wlhen faced with a warrant containing information obtained pursuant to an illegal search, a reviewing court must excise the offending information and evaluate whether what remains is sufficient to establish probable cause.").

2007See United States v. Dessesaure, 429 F.3d 359, 367 (1st Cir.2005) ("[Wlhen faced with a warrant containing information obtained pursuant to an illegal search, a reviewing court must excise the offending information and evaluate whether what remains is sufficient to establish probable cause.").