[¶ 11] Under Franks, 438 U.S. at 156, if the defendant makes a substantial preliminary showing to justify an evidentiary hearing, the defendant has the burden at that hearing to prove by a preponderance of evidence that false statements in the warrant affidavit were made intentionally or with reckless disregard for the truth.SeeState v. Wamre, 1999 ND 164, ¶ 24, 599 N.W.2d 268; State v. Tester, 1999 ND 60, ¶ 11, 592 N.W.2d 515; State v. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912; State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989); State v. Padgett, 393 N.W.2d 754, 757 (N.D. 1986).See 2 Wayne R. LaFave, Search and Seizure, § 4.4(d), pp. 506-07 (3d Ed. 1996). Whether the defendant establishes statements in a warrant affidavit were made intentionally or with reckless disregard for the truth is a finding of fact reviewed under the clearly erroneous standard.Damron, at ¶ 10; Morrison, at 275; Padgett, at 757.

[¶ 9] Damron argues the footprint evidence should be disregarded or "read out" of the affidavit because it gave the magistrate a false impression of what occurred. Damron relies on State v. Morrison, 447 N.W.2d 272 (N.D. 1989), for the proposition false material should not be considered when reviewing probable cause. In Morrison, we applied the test set out in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), for determining whether a statement in an affidavit is false.

" State v. Ballweg, 2003 ND 153, ¶ 17, 670 N.W.2d 490 (quoting State v. Holzer, 2003 ND 19, ¶ 7, 656 N.W.2d 686). "Whether the defendant has demonstrated recklessness or deliberate falsity is a finding of fact reviewed under the clearly erroneous standard." State v. Damron, 1998 ND 71, ¶ 10, 575 N.W.2d 912 (quoting State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989)). "`A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or when, although there is some evidence, on the entire evidence, the Court is left with a definite and firm conviction a mistake has been made.

[¶ 8] The defendant has the burden to prove false statements were made intentionally or with reckless disregard for the truth, and whether this burden was met is reviewed under the clearly erroneous standard. State v. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409 (citing State v. Damron, 1998 ND 71, ¶ 10, 575 N.W.2d 912); see also State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989). "A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or when, although there is some evidence, on the entire evidence, the Court is left with a definite and firm conviction a mistake has been made." Jones, 2002 ND 193, ¶ 11, 653 N.W.2d 668 (citing Schmitt, at ¶ 12).

[¶ 14] Ballweg and Materi argue the affidavit was misleading because it falsely implied the anhydrous tank was stolen even though Deputy Fetsch knew before he submitted the affidavit that the tank had not actually been stolen. Ballweg and Materi rely on Franks v. Delaware, 438 U.S. 154 (1978), which was applied by this Court in State v. Morrison, 447 N.W.2d 272, 274 (N.D. 1989). Under Franks: [W]here the defendant makes 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, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

[¶ 11] A defendant is required to prove a statement is false and its inclusion amounted to perjury or reckless disregard for the truth. State v. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912 (citing State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989)). Whether the defendant demonstrates recklessness or intentional falsity is a finding of fact.

A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause. State v. Morrison, 447 N.W.2d 272, 274 (N.D. 1989) (relying on State v. Ennis, 334 N.W.2d 827, 831 (N.D. 1983)). The standard set out in Franks may also apply to statements that are deliberately false or misleading by omission.

On review, we recognize the trial court's superior position to assess the demeanor and credibility of the witnesses, and we defer to that court's factual determinations about searches and seizures, unless those factual determinations are contrary to the manifest weight of the evidence. Bryl. See also State v. Pickar, 453 N.W.2d 783, 785 (N.D. 1990); State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989); State v. Frank, 350 N.W.2d 596, 599 (N.D. 1984). As an appellate court, we do not usually resolve conflicts in the evidence, determine the credibility of explanations, or weigh the evidence.

Ennen contends that the failure of Carlson to disclose the garden made his affidavit false. See Handtmann, supra; State v. Morrison, 447 N.W.2d 272, 274 (N.D. 1989). We do not reach that conclusion.

Bryl. See also State v. Pickar, 453 N.W.2d 783, 785 (N.D. 1990); State v. Morrison, 447 N.W.2d 272, 275 (N.D. 1989); State v. Frank, 350 N.W.2d 596, 599 (N.D. 1984). As an appellate court, we do not usually resolve conflicts in the evidence, determine the credibility of explanations, or weigh the evidence.