Justice Albin filed a dissent in which he was joined by Justices LaVecchia and Pierre-Louis. The dissent opined in relevant part: Defendant is entitled to discovery as set forth in Luttenberger but the majority violates the essential tenets of that standard, citing the majority’s announcement that a defendant’s sworn statement contradicting averments in a warrant affidavit will not be sufficient to cast “reasonable doubt” on the veracity of the affidavit and therefore to entitle him to an in camera hearing. That pronouncement, Justice Albin notes, presupposes that the averments in a police officer’s affidavit will always be truthful and that the averments in a defendant’s affidavit will always be false — a notion soundly rejected by other courts.
Unlike the Luttenberger court, Justice Albin adds, the majority also requires the defendant to have telepathic powers — to always be able to identify the specific items of discovery withheld from him. Crafting an illusory particularity requirement that defendants cannot reasonably meet will throttle meritorious claims for discovery, in Justice Albin’s view. Justice Albin would remand to the trial court for application of the Luttenberger standard as it is and would require as a prerequisite to defendant’s discovery request that he support his claim by sworn statements in an affidavit or certification. Justice Albin would also make clear that a pre-Franks discovery motion must always be resolved before a court considers whether a defendant is entitled to a Franks hearing.
It is surprising that the majority did not at least agree that a pre-Franks discovery motion should always be resolved before a Franks hearing is considered. To hold otherwise would be illogical. It would also be an inefficient use of our courts’ resources because receipt of relevant discovery after the initial Franks hearing decision will necessitate a motion to reconsider the initial decision. This was another recent example of a 4-3 criminal case decision with the Court divided along political party lines.