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Click here for the full text of this decision FACTS:Authorities arrested Jane Etta Harris as a result of a “covered buy” instigated by a confidential informant on behalf of Fort Worth narcotics officer Donnie Morton. Morton gave the informant $20 in cash, checked his pockets to make sure he had no drugs on him and then sent him into Harris’ apartment to buy crack cocaine. The informant returned after successfully completing the buy. Morton then obtained a search warrant for Harris’ apartment. Upon its execution, he and other officers found cocaine and two handguns and arrested Harris. At a pretrial hearing on Harris’ motion to suppress, Morton testified that his investigation began with an anonymous tip to the Tarrant County Crime Stoppers hotline that drugs were being sold out of Harris’ apartment. Morton said that he arranged to meet a person he knew to be a “credible and reliable informant” at Harris’ apartment complex. Morton then described how he used the informant to carry out the covered buy, including giving him money and directing him to Harris’ apartment. In the affidavit that Morton submitted in support of the search warrant, he made no mention of the Crime Stoppers tip. Morton did say in the affidavit that he “met with a reliable confidential informant,” the informant told him that he had personally observed Harris selling crack cocaine in the apartment, and the informant “specifically pointed at the location described in the body of this affidavit.” The parties at the suppression hearing did not discuss either this portion of the affidavit or the omission of the Crime Stoppers tip from the affidavit. The trial court denied Harris’ pretrial motion to suppress, and a jury convicted Harris of possession of a controlled substance and sentenced her to 10 years of imprisonment. The 2nd Court of Appeals reversed the trial court’s judgment. The 2nd Court rejected the state’s argument that Harris failed to preserve error. The court also concluded that the inconsistencies between Morton’s affidavit and his testimony required excision of certain statements from the affidavit, because they were “either untrue or statements made with reckless disregard for the truth.” The court ultimately held that the surviving portion of the affidavit was inadequate to support a neutral magistrate’s probable cause determination that would justify the warrant. As a result, it held that the trial court abused its discretion in denying Harris’ motion to suppress. Seeking review by the CCA, the state asserted that Harris failed to preserve error at trial. HOLDING:Reversed and remanded. Under the U.S. Supreme Court’s 1978 opinion Franks v. Delaware, a defendant who makes a substantial preliminary showing that a false statement was made in a warrant affidavit knowingly and intentionally, or with reckless disregard for the truth, may be entitled by the Fourth Amendment to a hearing, upon the defendant’s request. A Franks hearing, the CCA stated, is required only where the false statement is essential to the probable cause finding. If at the hearing the defendant establishes the allegation of perjury or reckless disregard by a preponderance of the evidence, the affidavit’s false material is set aside. If the remaining content of the affidavit no longer establishes sufficient probable cause, then the search warrant must be voided and the evidence resulting from that search excluded. To be granted a Franks hearing, the CCA stated a defendant must: 1. allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the allegedly false portion of the affidavit; 2. accompany these allegations with an offer of proof stating the supporting reasons; and 3. show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant. In this case, the CCA stated that the record did not support a finding that the trial court was even aware at the original hearing on the motion to suppress that a Franks violation was at issue. The 2nd Court concluded the opposite. The CCA’s review of the record however, found that the only arguable reference to Franks in either the original or the amended motion to suppress fell short of the three-prong test. Nor, the CCA stated, was any evidence presented at the hearing to establish even a prima facie violation under Franks. The main thrust of defense counsel’s argument, the CCA stated, during both testimony and closing arguments at the hearing concerned whether Morton had sufficiently corroborated and verified the information he received before seeking the search warrant. That argument, the CCA stated, is an entirely different complaint than a complaint that Morton misrepresented the information to the magistrate with at least reckless disregard for the truth. “This is a far more serious allegation,” the CCA stated, “and from the record it is clear that none of the parties even suggested such a thing at the hearing.” Therefore, the CCA held that Harris failed to preserve the Franks issue for review. OPINION:Womack, J., delivered the opinion for a unanimous court.

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