Dallas Drug Trafficking Lawyer On How to Get a Search Warrant Thrown Out

Experienced Dallas drug trafficking lawyer John Helms explains the two ways a search warrant can be challenged and thrown out via a motion to suppress evidence.

Many drug trafficking cases involve law enforcement executing a search warrant. They do this to find evidence of drug trafficking, usually in a house or a place of business where drug trafficking might be happening, offers John Helms Dallas drug trafficking lawyer.  The evidence could be the drugs themselves, but it could also be indications of drug trafficking like drug ledgers or “pay and owe” notes that show deliveries and payments.  It could also be scales, baggies, hidden compartments, large amounts of cash, or other indications of possible drug transactions.

Sometimes, though, a search warrant affidavit may have some kind of incorrect information in it.  In other cases, there may be a question about whether the affidavit has enough credible facts to justify the search.  But if a magistrate or a judge signed the search warrant, does that mean it cannot be challenged?  The answer is, “No,” says drug charge lawyer Helms.

For a drug crime defense there are two primary ways to challenge a search warrant:  (1) Based on incorrect information in the affidavit; and (2) Based on failure to establish probable cause to do the search. For the accused, the good news is that, if you win, the court will throw out any evidence found during the search.  The bad news is that the showing you need to make to win is not easy.

A challenge to a search warrant affidavit based on incorrect information is made through what is called a Franks hearing.  This is named after a US Supreme Court case called Franks v. Delaware.  In order to get a Franks hearing, the accused has to make an initial showing of three things:  (1) there is false information in the search warrant affidavit; (2) the officer who was responsible for that information knew that the information was false or included it recklessly (meaning that there was a good chance it was not true, the officer did not know whether it was true, and the officer did not care whether it was really true or not); and (3) without the false information, the affidavit would not establish probable cause to conduct the search.

If the accused makes this initial showing, the court will hold a Franks hearing and consider evidence from both the prosecution and the defense on these three issues.  After considering the evidence from both sides, if the court believes that the three elements have been proved, the court will throw out the evidence from the search, informs drug crime defense lawyer Helms.

Even if there is false information in the search warrant affidavit, the second and third elements are critical. On the second element, if the officer was just negligent (careless), and not at least reckless, this is not enough. In other words, if all you can show is an honest mistake, you lose. It has to be worse than that.

The third element means that the false information really has to make a difference. If you take out the false information, and the rest of the affidavit still shows probable cause, then you lose. So, minor mistakes are not enough.

Proving all three elements can be difficult, but sometimes the accused can win.  It all depends on the specific facts of the case and a drug trafficking lawyer who knows what he or she is doing.

Challenging a search warrant affidavit based on failure to show probable cause is also tricky.  If a magistrate or judge has signed the search warrant, both the US Supreme Court and the Texas Court of Criminal Appeals (Texas’ highest criminal court), have held that you can’t just second-guess the magistrate or judge.  As long as the search warrant contains substantial evidence to justify probable cause to believe that there is evidence of a crime at the place to be searched, it is good enough, even if some judges might think it was insufficient.   This is because the law gives the magistrate or judge who signed the search warrant the benefit of the doubt.

Keep in mind that a search warrant affidavit does not have to prove someone is guilty of a crime, especially not beyond a reasonable doubt.  It does have to be enough to overcome a person’s privacy rights in a place in order to allow law enforcement to search the place.

In any drug trafficking case involving a search warrant, a criminal defense lawyer should carefully analyze the affidavit supporting the search warrant to determine whether it can be challenged.  A successful motion to suppress the results of a search can knock out critical evidence and sometimes be enough to win a case.  That is an important reason to hire a criminal defense lawyer who is skilled and experienced in this area.

If you or someone you know has been charged with a drug offense or are facing federal drug charges, contact Dallas drug trafficking lawyer John Helms immediately. Call 214-666-8010.