By: WISCONSIN LAW JOURNAL STAFF//January 11, 2013//
United States Court of Appeals For the Seventh Circuit
Criminal
Search and Seizure — Franks hearings
A district court that is in doubt about whether to hold a Franks hearing has discretion to hold a so-called “pre-Franks” hearing to give the defendant an opportunity to supplement or elaborate on the original motion.
“Though permissible, this procedural improvisation is not without risk, as the sparse case law indicates. In such a pre-Franks hearing, the natural temptation for the court will be to invite and consider a response from the government. However, the court should not give the government an opportunity to present its evidence on the validity of the warrant without converting the hearing into a full evidentiary Franks hearing, including full cross-examination of government witnesses. We emphasize that the option to hold such a limited pre- Franks hearing belongs to the district court, not the defendant. If the defendant’s initial Franks motion does not make the required ‘substantial preliminary showing,’ the court need not hold a pre-Franks hearing to provide the defendant a further opportunity to do so.”
Vacated and Remanded.
Appeal from the United States District Court for the Central District of Illinois, Shadid, J., Hamilton, J.