Attacking a Colorado Criminal Arrest Warrant – The Veracity Hearing

I ntroduction -This web page will discuss a Colorado attack on an Arrest Warrant for lack of probable cause – and seeking a dismissal of the case on the base that the arrest warrant allegedly contained false statements which must be stricken under the standards of Franks v. Delaware, 438 U.S. 154 (1978)

The Law

The Fourth Amendment to the United States Constitution proscribes the issuance of any warrant except upon probable cause.

A defendant may challenge and have stricken a false statement contained in a warrant in a “veracity proceeding” by alleging and establishing by a preponderance of evidence each of the following:

1. a good faith basis in fact for the challenge, based on affidavits submitted in support of the motion to suppress,
2. [which] set forth with specificity the ‘precise statements challenged,’
3. [and] establish at the veracity hearing that there are false statements in the affidavit, and
4. establish that the false statements were the product of ‘intentional falsehood or reckless disregard for the truth’ by ‘the officer-affiant’ ….”

No Veracity Hearing Unless the Statement is Essential to Probable Cause Finding

The court need not conduct a veracity hearing unless:

“the allegedly false statement is necessary to the finding of probable cause, and suppression is to occur only if the defendant proves perjury or reckless disregard and it then appears that with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause

Analysis of the Veracity Process in Colorado

The Court must find that the Defendant has satisfied the initial two-part requirement for a Veracity Hearing. A good faith showing must be made to the Court to permit the Court to conclude that there are false statements in the Affidavit for Arrest and that these statements are not only necessary to, but are a vital sine qua non to any finding of probable cause against Defendant.

Absent the statements there can be no probable cause for the commission of the crimes charged and applying the above analysis the Court must conclude that the statements must be stricken from the Affidavit for the Arrest.

In the absence of the stricken statements if and when there is a finding of no probable cause for Defendant’s arrest for any of the crimes charges there is then an inadequate factual basis for the arrest and no probable cause for any of the charged crimes. Therefore the charges must be DISMISSED.