11. Traverse

The following sample motion to traverse must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.

A motion to traverse is a motion to suppress evidence based on errors and/or omissions in a search warrant.



TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move the Court for an order permitting cross-examination of the affiant in the affidavit filed in support of the search warrant issued and executed in this case and for a further order permitting the defendant herein to present evidence to controvert the factual allegations of this affidavit.

Thereafter, Defendant will move for an order suppressing all evidence seized in the above entitled case including, but not limited to, all officer observations, witness identifications, and all physical and intangible evidence seized or obtained as a result of search and seizure violations that occurred during any searches relevant to this case.

This motion will be made on the ground that the evidence seized pursuant to the warrant was the product of an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, §13, of the California Constitution in that the affidavit in support of the above-mentioned warrant was defective by the omission of certain material facts and the inclusion of certain false statements described in the attached memorandum of points and authorities.

The motion will be based on this notice of motion, the attached declaration, the memorandum of points and authorities served and filed herewith, the records on file in this action and on such oral and documentary evidence as may be presented at the hearing.


By Larry Lawyer,
Attorney for Dave Douglass



I, Larry Fields, Attorney for Defendant, declare:

I am informed and believe that the affiant omitted the following facts from affidavit in support of the search warrant in this matter and or inserted the following falsehoods:

1. The search of the residence was substantially complete prior to the issuance of the warrant.
2. The affidavit lists two probationers as living in the residence; however, each named probationer went into custody more than a month prior to the affidavit being signed.
3. The confidential informant noted in the affidavit is John Jones, who is the current husband of Defendant’s ex-wife. This statement is made on information and belief.
4. Defendant was previously arrested by the affiant, but was cleared of all wrongdoing.


By Larry Fields,
Attorney for Dave Douglass


A defendant may move to traverse a search warrant and to suppress the evidence seized based on that warrant on the ground that the search and seizure was unreasonable because there was not probable cause for issuance of the warrant. (See Illinois v. Gates (1983) 462 U.S. 213.

A warrant based on a false or misleading affidavit is invalid. The affiant in the instant case withheld information from the magistrate who issued the warrant and the affiant affirmatively misled the magistrate by inserting false statements.

The Supreme Court has held that a defendant may offer evidence at a suppression hearing to prove that some of the allegations in an affidavit supporting a facially sufficient search warrant were false. In order to obtain such a hearing the defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” (Franks v. Delaware (1978) 438 U.S. 154, 155)

Neither Franks, nor the cases following it, require an “intentional” false statement. Rather, the burden on the defense is merely to show an intentional or reckless disregard for the truth. (People v. Panah (2005) 35 Cal. 4th 395, 429). Evidence obtained pursuant to a search warrant based on an affidavit including false statements, or statements made in reckless disregard of the truth, must be suppressed. (People v. Estrada (2003) 105 Cal. App. 4th 783, 790; People v. Thuss (2003) 107 Cal. App. 4th 221, 224).

It is also clear that when an affiant incorporates information obtained from another law enforcement officer, the intentional/reckless standard also applies to that source of information. (Franks v. Delaware (1978) 438 U.S. 154, 163, fn. 6; U.S. v. Roberts (9th Cir. 1984) 747 F. 2nd 537, 546, fn. 10).

If the required preliminary showing is made, then the material that is the subject of the alleged falsity or reckless disregard is set to one side, and the affidavit’s remaining content evaluated for probable cause. If there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required, but if the remaining content is insufficient, the defendant is entitled under the Fourth and Fourteenth Amendments to a hearing.

The deliberate falsehood or reckless disregard must be that of the affiant, not of any nongovernmental informant. (Franks v. Delaware (1978) 438 U.S. 154, 171). However, if statements the affiant relied upon are demonstrated to be false and the affiant was unreasonable in believing the truth of such information, those facts must be excised from the affidavit and probable cause tested from the remaining truthful information. (Theodor v. Superior Court (1972) 8 Cal. 3rd 77, 100-101).

A defendant may attack a facially sufficient search warrant affidavit on grounds that, though it contains no affirmative falsehoods, it is incomplete. When an affidavit in support of a warrant contains omissions, the court must determine whether any of the asserted omissions are material. Omissions are “material” if they render the affidavit “substantially misleading.” Material omissions can undermine the validity of a warrant when they are “made intentionally or with a reckless disregard for the accuracy of the affidavit.” (Franks v. Delaware (1978) 438 U.S. 154, 171).

An omission which was recklessly inaccurate or was a deliberate attempt to mislead the magistrate, “undermines the judicial process, makes the entire affidavit suspect, and calls for harsh deterrence. The appropriate response is to quash the warrant regardless of whether the omission ultimately is deemed material.” (People v. Kurland (1980) 28 Cal. 3rd 376, 391).

The entire point of the Fourth Amendment’s search warrant requirement is that inferences be made and conclusions be drawn by the magistrate, not the officer seeking the warrant. Indeed, the failure of the officer to set forth the facts which form the basis for his opinion can be evidence of reckless conduct. (See U.S. v. Alvarez (5th Cir. 1997) 127 F. 3rd 372, 374, which noted that “While we decline to hold that the absence of [underlying] facts in the affidavit invariably converts negligence into recklessness for Fourth Amendment purposes, it is certainly one factor that must be considered in the analysis”).

Once the material misrepresentations of fact are deleted and/or the material omissions of fact are added to the challenged affidavit, the probable cause analysis must follow the “totality of the circumstances test” (Illinois v. Gates (1983) 462 U.S. 213). Probable cause to issue a search warrant is found by looking at the “totality of the circumstances” contained within the four corners of the affidavit. (id. at 237). However, the court in Gates also warned that the magistrate must be provided with enough information to allow him to determine whether he is simply being provided with the “bare conclusions of others.” (id. at 239).

In United States v. Leon (1984) 468 U.S. 897, 920, the Supreme Court held that evidence seized pursuant to an invalid search warrant would nevertheless be admissible “when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” However, the “good-faith exception” does not apply if its application would allow the purpose of the exclusionary rule to be circumvented (i.e., deterrence of police misconduct.). Therefore, the exception does not apply when an affiant misleads the magistrate.

“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth.” (Leon, supra at 923).