What Happens if Police Lie or Make Mistakes in a Search Warrant?

From a criminal defense lawyer’s perspective, every single person in this country should know about search warrants. It’s important to understand things aren’t the same in the real world as they are in books or on TV. Hunches are not enough in real life to allow law enforcement to search anyone or anything.

Key insights:

• search warrants are formal documents following formats established in state and federal law

• all search warrants must comply with the constitutional requirements of the Fourth Amendment

• mistakes or lies in the search warrant can form the basis of a motion to suppress evidence

• defense motions to suppress evidence because of mistakes or false information in the search warrant can mean dismissal of the case; reduced charges; plea bargains

• denials of a defense motion to suppress based upon a search warrant having errors or lies can be appealed and can also benefit from things like revealing weaknesses in the government’s case.

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What is a Search Warrant?

A search warrant, whether issued by the federal government or the State of Texas, is the tool created to protect basic privacy rights. The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Police officers or federal agents just can’t do whatever they want, whenever they want. A search warrant must be obtained by law enforcement, and they get this from a judge or magistrate. (There are exceptions to this general rule, which we’ll discuss in a future article). It is a document that includes the court’s order as well as the underlying sworn affidavit supporting the search, and will have the inventory of what was seized when it is filed of record.

Without a formal search warrant, or with a flawed or fraudulent search warrant, the defense lawyer can move to suppress any evidence they got based upon that warrant as violating the Fourth Amendment. It can’t be used if the motion to suppress is successful.

A “warrant” is a legal term that describes this document signed by a member of the judiciary (state or federal) that allows, approves, or directs someone to take a specific action. A search warrant allows the searching of persons or property, and seizing of anything that may lead to admissible evidence.

The Texas legislature has formally defined the term “search warrant” for Texas cases in Texas Code of Criminal Procedure Article 18.01 as follows:

A “search warrant” is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order.

Also see Federal Rule of Criminal Procedure 41 regarding search warrants under federal law.

What Does a Search Warrant Look Like?

Anyone being served with an official search warrant would be wise to know what a proper warrant looks like. It is a official-looking document, usually made up of several pages, appearing with proper headings (like the issuing court, style of the case); signatories (the official approving it; the affiant); etc.

An example of a federal search warrant form is provided online by the federal government, and the Texas District & County Attorneys Association has a veritable library uploaded of search warrant form examples under state law.

The Justice Department has uploaded all sorts of a real life federal search warrants that were served and seized evidence, like this one involving the search of a 2002 Saturn SL1, blue, 4 door sedan, based upon an affidavit filed by a Postal Inspector with the U.S. Postal Inspection Service.

Regardless of whether it is issued under state or federal law, every search warrant must have the following:

1. Sworn Probable Cause Explanation to Justify the Search

There will be a sworn statement (affidavit) of “probable cause.” This is an explanation in writing by an officer or government agent that details facts within their personal knowledge or things provided by an informant that support the argument that evidence of illegal activity will be found if the search is approved. It is sworn to under oath as being truthful.

2. Detailed Focus of the Search

The search warrant must describe the place to be searched with details, giving particulars about what is being searched and what is not. (A home may be searched, but not the detached garage, for instance unless the warrant describes with particularity that the detached building is included in the search focus.)

3. Guidance for the Search

There must be specific instructions within the search warrant that explain exactly how the search is to be conducted. And when it is to happen. Searches should not happen during the night unless there are special circumstances that justify it. Officers must be given instructions on how the search is to be done, too. See, e.g., Fed.R.Crim.P. 41(a)(1)(B), which defines “daytime” regarding federal search and seizures as “the hours between 6:00 a.m. and 10:00 p.m. according to local time.”

4. Neutral Judge or Magistrate

The judicial official that reviews the search warrant and approves it must not be connected to the case or biased towards anyone or anything connected to it. Impartiality and detachment is demanded here, and is intended to protect against abuse of police powers.

5. Specifics About Who is Conducting the Search

The search warrant will identify those authorized to do the search. Private citizens (think private investigators or bounty hunters) cannot execute a search warrant. Under Fed.R.Crim.P. 41(a)(2)(C), this involves “a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.”

When Search Warrants Fail: Mistakes or False Info Can Get Evidence Thrown Out

With the understanding that each case is unique and deserves individual respect and scrutiny, the experienced criminal defense lawyer will usually find bases to challenge a search warrant involving the following arguments:

1. False Statements or Material Omissions in the Probable Cause Affidavit

The affidavit supporting the search warrant better be right. If there are mistakes in it, or if there are false statements or exaggerations, then the affidavit fails to provide probable cause. What if the tip was suspect or weak because the informant or witness was known to be unreliable? What if someone lied?

These challenges can be made by the defense lawyer at a “Franks Hearing.” This is a hearing based upon the United States Supreme Court case, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In a Franks Hearing, the defense lawyer demonstrates to the judge that the probable cause affidavit either left out important information or contains lies that supported the approval of the search warrant. There was reckless disregard for the truth, and the defense has a big job here. The Franks Hearing may mean bringing witnesses to court to testify, as well as introducing things like internal police records or other documents into evidence. These hearings take time in investigation, in preparation, and in court time.

If the Franks Hearing is successful, then the evidence obtained in the search warrant cannot be used by the government against the accused.

What Happened in Franks

The Franks case is a landmark case for search warrant defense matters. It began in March 1976, when a woman in Dover, Delaware, reported to police she was attacked in her house by a man with a knife and was sexually assaulted. She told the police what the man was wearing. She told them what he looked like.

Around the same time, Jerome Franks was arrested for an earlier sexual assault. During that arrest, he was heard saying something about “Bailey” (the victim’s name), apparently thinking he had been arrested for a different person. His statement was included in the police probable cause affidavit.

Wanting to search Mr. Franks’ apartment, the police requested a search warrant with an affidavit claimed that the officers had interviewed his co-workers and they confirmed that he often wore clothing that matched the Dover, Delaware victim’s description of her assailant’s clothing. The judge granted the search warrant. The police searched Mr. Franks’ apartment. They seized clothing and a knife.

At a subsequent defense hearing challenging the search warrant, Mr. Franks’ defense attorneys unsuccessfully moved to suppress all this evidence from the apartment search (both clothing and knife). They argued parts of the probable cause affidavit were false and that those false statements were used to get the warrant. The police lied. They had witnesses ready to testify, but the trial judge wouldn’t allow it.

The case went up on appeal all the way to the United States Supreme Court. The High Court issued an opinion that is key to defense challenges to search warrants today, granting Mr. Franks’ right to challenge the search warrant, stating:

There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.

Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.

2. Mistakes in The Description of Place to be Searched

It’s surprising how often the search warrant will have the wrong address or a bad, confusing, or false description of the place to be searched. Maybe it’s the wrong apartment number. Maybe the description is murky, like “the beige house on South Broadway” and when the defense team checks out the area, there are several homes that could fit that description.

Defense lawyers will argue that this goes against the language of the Fourth Amendment which requires the search warrant to particularly describe the place to be searched. A motion to suppress the evidence obtained in the search warrant can be filed.

The defense lawyer must be ready not only to explain the problem but to show that this was a serious error and no one could have relied in good faith on the warrant. See, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

3. Other Arguments: Old Facts or Stale Information; Language is Too Broad

If the affidavit relies upon old information (like an informant’s tip that was given two years ago), then there is an argument that it is not reasonable to believe there is probable cause to search at this late date.

If the search warrant is not clear and specific in what is being targeted in the search, then the defense can challenge it as being overly broad. “All records,” for instance is not correct. It is too far-reaching a description and does not give details.

Search Warrants With Mistakes or Lies: Evidence Cannot Be Used

Discovering that a faulty search warrant has been used to seize evidence that is now being used against someone means that the criminal defense lawyer has to take steps to challenge this wrong. This is done in both state and federal courts as a formal request to exclude (“suppress”) the evidence. A motion will have to be researched and drafted with details of the factual basis and the legal reasoning. Franks, for instance, may be a legal cornerstone for the defense motion.

Read: What is a Motion to Suppress?

Then a hearing must be scheduled on the court’s docket. The government must be properly notified of the hearing’s date and time. Subpoenas must be issued, as necessary, for any witnesses who will need to take the stand.

At the hearing, both the government lawyers and the defense attorney will argue and present evidence. The presiding judge will then make a decision. If the suppression motion is granted based upon errors or lies in the search warrant, then the evidence cannot be used.

This may mean that the government’s case fails because they cannot prove their charges beyond a reasonable doubt without it. Or it may mean they still have a case, but on lesser charges (reduced charges). If so, then there is an opportunity opened to the defense to negotiate a plea bargain.

And in the event that the motion to suppress is denied, the decision may be appealed. And it may be advantageous as well in doing things like identifying weaknesses in the government’s case.

For more, read:

• Admissibility of Digital Data: Use of Electronic Evidence in Federal Criminal Case;

• Encryption and Law Enforcement Investigations: Police Access to Encrypted Data;

• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview;

• The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing.

Published by Michael Lowe, Esq., Board Certified in Criminal Law by the Texas Board of Legal Specialization since 2007; for more information from Mr. Lowe, check out his videos on YouTube.  Statutory references and case law current as reviewed on date of publication.  Recommended Citation: Michael Lowe, Esq., What Happens if Police Lie or Make Mistakes in a Search Warrant?,  DallasJustice.com Criminal Law Blog (October 2025); https://www.dallasjustice.com/dallascriminallawyerblog/.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations.”