Motion to Quash and Traverse Search Warrant
Challenging Probable Cause
A motion to “quash and traverse” is one which challenges the affidavit, and the underlying probable cause, which the judge relies upon in issuing the search warrant. The motion to traverse challenges the truth of the affidavit. The motion to quash challenges the sufficiency of
the affidavit, which depends solely upon whether or not the facts are even true and whether they even rise to the level of probable cause.
These motions may be filed separately or together, but the terms are often interchangeable. For the sake of simplicity, we will discuss them as one. Your criminal defense attorney can assert motions to traverse and quash a search warrant in three types of hearings:
• Franks Hearing – To assert that the author of the affidavit (the “affiant”) provided false information.
• Luttenberger Hearing – To assert that the informant provided false information.
• Hobbs Hearing – Based on a sealed affidavit.
In this hearing, within which you are requesting to quash and traverse a warrant due to the fact that you believe the supporting affidavit contains false information, you must set forth the reasons you believe that it is inaccurate. Your criminal defense attorney may do this by representing that:
• The affidavit contained false statement(s)
• The statement(s) made knowingly or recklessly disregarded the truth
• The statement(s) were necessary, or material, to establish probable cause.
If the affiant intentionally leaves out information, he/she will be deemed to have provided false information by omission.
The court must hold an “in camera” hearing if the judge believes that you have challenged the truth of the affidavit.
During this hearing, the judge might question the affiant or the informant to determine whether or not the affidavit is accurate, false or misleading. If your criminal defense attorney is successful in proving that the affidavit contained false material information, and the information remaining is insufficient to support a finding of probable cause, the judge must quash the search warrant. If the search warrant is quashed, any evidence that was seized under the warrant will be suppressed.
When the affidavit contains information from an “undisclosed informant”, it is extremely tough to establish that the affidavit is false – which is the standard to get a Franks Hearing. If the informant is not a material witness with respect to your guilt or innocence, or an
eyewitness to the alleged crime, the prosecution is under no obligation to disclose his or her
This hearing takes place when you want to disprove the truth of the affidavit, but you do not know the identity of the informant. Your attorney might request information about:
• The informant's reliability
• The informant's motive for providing the information. For example, was the informant paid or offered promises of leniency in exchange for his/her testimony?
• Statements that the informant provided in connection with your case.
The burden of proof is less strict than it is in a Franks Hearing, but the defense must still cast doubt as to the truthfulness of the informant's testimony. If this is accomplished, the judge will then conduct an “in camera” hearing to determine if the statements are or are not material. If the statements are material, the judge will then remove any information that could disclose the informant's identity prior to providing you with the affidavit or supporting documents. During this hearing, if your attorney were to discover that the informant is a material witness to your guilt or innocence, he/she would then move to disclose his/her identity at a Hobbs Hearing.
This hearing is where your attorney will request that the judge reveal the identity of the confidential informant upon whose information the search warrant was issued. When the entire affidavit has been sealed in order to protect the informant's identity, it could be difficult to even qualify for a Luttenberger Hearing. This being the case, the court must conduct an “in camera” hearing upon receiving your motion to traverse or quash the search warrant. Unless the prosecutor agrees, the hearing will take place without you or your attorney. During this hearing, which is referred to as a “closed hearing”, the judge will decide whether to maintain the confidentiality of the informant, and whether the affidavit is properly sealed.
If the judge believes that the affidavit was properly sealed, but does not believe that the information contained therein was false/misleading, he/she will deny your motion. However, if the judge believes that you will be successful in your motion, he/she will give
the prosecution the chance to disclose their informant, or have the case dismissed if he/she rules in your favor. The prosecution will generally dismiss the case before revealing the police informant.
Time of Execution on a Search Warrant
A search warrant in California must be executed within ten (10) days of its issuance. It becomes void if not executed within that timeframe. If the search warrant does expire, it could be reissued as long as the judge believes that there is still probable cause to support the warrant. If the probable cause that existed at the time of the original search warrant is no longer relevant, the judge will not be inclined to reissue the warrant. It should be noted that there are also restrictions upon what time of day a search warrant can
be executed. A search warrant should only be executed between the hours of 7:00 a.m. and 10:00 p.m. However, if the judge believes that there is good cause to execute the warrant during different hours, he/she might authorize service at any time, day or night.
Good cause meaning that the judge believes there is a factual basis upon which a nighttime intrusion is justified based on pressing circumstances. If you have numerous outstanding warrants, then service will probably be authorized whenever possible. In establishing good cause, the judge will consider both the safety of the public and the safety of the law enforcement officers who will be serving the warrant.
A Search Warrant – With Respect to Seized Property The law enforcement officer seizing any property must provide a detailed receipt listing any and all property that he/she seized during the search. This officer must leave the receipt with the person he/she took the property from and/or the person who possessed the property. Or, if no one was present during the seizure, he/she must leave the receipt where the property was found.
Once the property is seized, the officer must keep the property in police custody until it is presented to the judge.
A Search Warrant – Forced Entry
When is it okay for a law enforcement officer to force entry into a home or business without permission? Only after entry has been refused. If you, the owner or occupant, refuse to open the door for law enforcement or do not permit them entry into your home or business, the officers may break into the home/business through a window, door, or any other part of the home/business in order to execute the search warrant.
Assuming you are home or at your business, there must be evidence that you have refused entry prior to the police legally forcing their way in. This is usually evidenced by either:
• An unreasonable delay in responding to the request to enter
• An outright refusal to open the door.
Below are some examples of situations wherein the California courts have held that unlawful forced entries took place.
• The knock-notice requirements weren't fulfilled. (This is where the officers are required to knock and announce themselves and their purpose prior to taking any action.) Example – Although the officer announced his presence, he didn't state his
purpose. Requirements not fulfilled.
• The officer simultaneously announced his presence and forced entry without giving
the homeowner opportunity to either comply or refuse.
• The forceful entry was a mere 20 seconds after the officers complied with the knock notice requirements.
• Knock-notice requirements were not followed when law enforcement entered the
home to secure it while the warrant was being obtained.
• The officer announced that he was a police officer, without stating his purpose, and only after he had already forced entry.
Unless permitted by the judge, law enforcement must follow requirements when executing a search warrant.
Exceptions to the Knock-Notice Requirements
Below are some of the most common exceptions to the knock-notice requirements:
• Consent – If the person(s) in the home/business consents to the officer's entry, then the officer does not need to follow the knock-notice requirements.
• Public Places – The knock-notice requirements are made with respect to a person's privacy in his/her home/business. This rule is not required when in a public place.
• Pressing Circumstances – This basically means that “time is of the essence”. When pressing circumstances are existing, the knock-notice requirements can be relinquished. This is usually the case where law enforcement believes that those inside the
home/business may be armed or that drugs will be destroyed if they use the knock-notice requirement to announce their presence.
Note: There is no certain exception for pressing circumstances. Each case is evaluated independently.
Absent a pressing circumstance, a violation of the knock-notice requirements could render any succeeding search and seizure unreasonable and hence illegal. When rendered illegal, the prosecution will be prevented from using the seized evidence against you at trial.
Do you have questions about a case? Visalia and Bakersfield area criminal defense attorneys at Martens & Brusseau can assist you with criminal charges. With years of criminal defense experience, our firm has handled thousands of cases. Attorneys here have the skills and knowledge needed to defend your rights. Serving the Visalia, Fresno, and Bakersfield areas, Martens & Brusseau can provide expert criminal defense counsel. CONTACT US AT 559-302-9722 OR 661-466-2142 TODAY