State v. Jardine ( 1990 )

BURNETT, Judge,

specially concurring upon denial of petition for rehearing.^*

The foregoing opinion was issued following a petition by the state for a rehearing on the appeal. By separate order filed today, we have denied that petition. In its petition, the state takes the position that we have concluded that a Franks hearing may be held not only to determine whether police officers have given false or misleading information to a magistrate, but also to determine whether the officers could have conducted a more thorough investigation before seeking a search warrant. I write here simply to confirm my understanding that the Court does not regard the Franks hearing as a general forum for debating the adequacy of a police investigation. Rather, the limited focus of the hearing is on the accuracy of the affidavit (or transcript of sworn testimony) presented to the magistrate in support of the search warrant application.

In the present case, that information was misleading. Accordingly, I join the Court in denying the state’s petition for rehearing and concur in the substitute opinion issued today.

* Judge Burnett’s special concurring opinion was prepared prior to his resignation on July 16, 1990.