Amicus Brief — Franks v. Delaware

Core Ua

{ FILED

| JAN 9@ 1978

L_MICHAEL RODAK, JR, CLERK

No. 77-5176

Gn the Supreme Gourt of the United States

OctosER TERM, 1977

JEROME FRANKS, PETITIONER

v.

StaTe oF DELAWARE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

DELAWARE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WADE H. McCREE, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney Generel,

KENNETH 8S. GELLER,

Assistani to the Solicitor Generel,

JEROME M. FEIT,

PAUL J. BRYSH,

Attorneys,

Depertment of Justice,

Washington, D.C. 20530.

Qusthiat BUG sacccincecceeccecnntan

Interest of the United States_...._.....--~~-

Constitutional provision involved__....._-----

I crs eeeddcntin ce tghinatinimanse

Summeaty of eegunet...:......-- =,

PT RRA AD RES

I. Sound administration of the Fourth

Amendment exclusionary rule requires

that a defendant be permitted to chal-

lenge the accuracy of the representations

in a facially valid search warrant affi-

davit on a motion to suppress evidence_

II. The legal significance of a false statement

in a search warrant affidavit should be

. analyzed in light of the purposes of the

ge ERR A EE

III. An evidentiary hearing on a defendant’s

claim of misrepresentation in a search

warrant affidavit need not be held in the

absence of specific factual allegations

which satisfy the trial judge that a fur-

IV. This case should be remanded for a deter-

mination whether petitioner’s belated,

unsworn allegations were sufficient to

entitle him to an evidentiary hearing___

Gone. * ccnptientaciethtitiivadinindnamenin

mMOonwnworeres3

—_

11

21

& 8

as il

CITATIONS Cases—Continued

Cases: - i State v. Anonymous, 30 Conn. Supp. 211, rom

Aguilar v. Texas, 378 U.S. 108_______-.__ 18 £ce .)

Alderman v. United States, 394 U.S. 165_. 25 State v. Anselmo, 260 La. 306, 256 So. 2d

Bivens v. Sia Unknown Named Agents, 98, certiorari denied, 407 U.S. 911_-. 15-16, 17

403 U.S. 388________ 20 State v. Brugioni, 530 Mo. 202, 7.5.W..2d ce

e V. Allison, 431 U.S. 63...-..-. 31 O08 nih tei

Brauer v. United States, 338 U.S.160__. 27 State v. Burnett, 42 NJ. 377, 201 A. 2d “

Brown v. State, 565 P. 2d 697 parece 39 ....-

Carroll v. United States, 267 U.S. 132.__. 7,14 State v. LeBlanc, , 100 RL 68, a1 A. 2d i.

Caslin v. Commonwealth, 491 S.W. 24 832_ 12 471 ...- =

Elkins vy. United States, 364 U.S. 206._... 22 State v. Petillo, 61 N.J. 165, 293 A. 2d 649,

certiorari denied, 410 U. S. 945_........ 12, 17

Go-Bart Importing Co. v. United States,

RNP RAR AA re el 14

Gracie v. United States, 15 F. 2d 644, cer-

tiorari denied, 273 U.S. 748 - 12

Kenney v. United States, 157 F. 24 442... 12

Mapp v. Ohio, 367 U.S. 643_..- ow (9

McCray v. Illinois, 386 U.S. 300__.--.--- 16

Michigan v. Tucker, 417 U.S. 433 oe ate 22, 23, 27

North Carolina v. Wrenn, 417 U.S. 973... 11

Oubre v. State, 542 S.W. 2d 875_..______ 12

Owens v. State, 217 Tenn. 544, 399 S.W.

2d 507 12

Palermo v. United States, 360 U.S. 343__ 32

People v. Bak, 45 Ill. 2d 140, 258 N.E. 2d

' 341, certiorari denied, 400 U.S. 882__.. 16

People v. Stansberry, 47 Til. 2d 541, 268

N.E. 2d 431, certiorari denied, 404 U.S.

DUO nctuihiiniueenes For

Powell v. State, 540-S.W. 2d 1_--.-----__ 12

Rugendorf v. United States, 376 U.S.

I ceiscceceamciiaaieseiiia ieee ccrerncicubviaccivg commas 6, 11, 24

Silverthorne Lumber Co. v. United States,

NE Fi silicided tiercodipesippipibatnichicnpsiention 14

State v. Sanders, 222 Kan. 189, 563 P. 2d

461, certiorari denied, October 3, 1977,

No. 76-1793_.- Jaa) 2D

State v. Seymour, 46 RI. 257, 126 Atl

755 12

State v. Williams, 169 Conn. 322, 363 A. ,

98 [Brekke 12, 17

Stone v. Powell, 428 U.S. 465- ‘ 9,

| 10, 22, 23, 24, 25, 30

Terry Vv. Ohio, 392 U.S. 1---+-----+---... 14, 22

Tucker v. State, 244 Md. 488, 224 A, 2d 111,

certiorari denied, 386 U.S. 1024. mi «26

United States v. Armocida, 515 F. 2d 29,

certiorari denied sub nom. Gonzal_ v.

United States v. ‘Astroff, 556 F.2d :

rehearing en banc granted, 564 F. 2d

United States v. Belewlfine, 508 F. 2d 58_-

United States v. Bowling, 351 3. 2d 236,

certiorari denied, 383 U.S, 908....--~---

‘United States v. Brunett, 53 F; 2d 219.-_.-

United States v. Calandra, 414 U.S. .338_-

22, 23, 24,

$9

oe &

See

Cases—Continued

United States v. Carmichael, 489 F. 2d page

SD eintiniinnenctsocwmetiiien 13, 24, 28, 29, 32

United States vy. Collins, 549 F. 24 557... 28

United States v. Curry, 497 F. 2d 99, certi-

orari denied, 419 U.S. 1035__---___-_-_ . Bl

Umted States v. Dionisio, 410 U.S. 1 _- 17

United States v. Dt Re, 332 U.S. 581___- 21

United States v. Dunnings, 425 F. 2d 836,

certiorari denied, 397 U.S. 1002__.__-_< 20

United States v. Evers, 552 F. 2d 1119-: 27

United States v. Gonzalez, 488 F. 2d 833__ 28

United States v. Grunsfeld, 558 F. 2d 1231,

pending on petition for a writ of cer-

tiorari, No. 77-5271_------..---------: 25

United States v. Halsey, 257 F. Supp. 1002- 16

United States v. Harris, 403 U.S. 573... 24

United States v. Harwood, 470 F. 2d 322._ 13, 28

United States vy. Hole, 564 F. 2d 298______ 27

United States v. Houle, 490 F. 2d 167, cer-

tiorari denied, 417 U.S. 970__---_-___ ww”

Umited States v. Janis, 428 U.S. 433____- 29 28

United States v. Karathanos, certiorari de-

nied, 428 U.S. 910.__------------_-- 2. 15

United States v. Lee, 540 F. 2d 1205, cer-

tiorari denied, 429 U.S. 894_____________ 13, 28

United States v. Luna, 525 F. 2d 4, certio-

rari denied, 424 U.S. 965._....-.______ 13, 32

United States v. Marchand,.C.A. 2, No. T7-

1131, decided August 22, 1977, pending

on petition for a writ of certiorari, No.

TUM FGD ciwariccatibibbiiacbonndmatisiinswcedi 25

United States v. Marihart, 492 F. 2d 897,

certiorari denied, 419 U.S. 827__.__..___ 13, 28

United States v. Peltter, 422 U.S. 531__ 22, 23-24

v

Cases—Continued

Umited States v. Pond, 523 F. 2d 210, cer- page

tiorari denied, 423 U.S. 1058___--- ~~~ 13

United States v. Rosenbarger, 536 F. 2d

715, certiorari denied, 431 U.S. 965_-~- 28

United States v. Scott, 555 F. 2d 522, cer-

tiorari denied, No. 77-432, December 5,

FEE cateciicinttiiennaieentiinaiemaddnrs 31, 32

United States v. Taxe, 540 F. 2d 961, cer-

tiorari denied, 429 U.S. 1040__---_----_ 13, 27

United States v. Thomas, 489 F. 2d 664,

certiorari denied, 423 U.S. 844-_--~- 13, 25, 26

United States v. Ventresca, 380 U.S. 102_- 18

Wood v. State, 322 So. 2d 462__..--_--_- 12

Constitution, statutes and rule:

United States Constitution: Fourth Amend-

TE accncnnncwdinititienaneinnnabet passim

11 Del. Code Ann. 764 (1976 Cum. Supp.) - 3

11 Del. Code Ann. 783 (1976 Cum. Supp.)- 3

11 Del. Code Ann. 826 (1975)_----------- 3

11 Del. Code Ann. 2301 et seq. (1975)---- 15

Fed. R. Crim. P., Rule 41(¢)------------ 15

Miscellaneous :

American Law Institute, A Model Code

of Pre-Arraignment Procedure (1975):

0 EPO wectnciteratanichimiqtnige 13

fo. 4: ae 32

Comment, Challenges to the Veracity of

Facially Sufficient Warrants—Is_ the

Truth Irrelevant ?, 7 Seton Hall L. Rev.

eC tivtnititgiitinincinninianaiionn 12

Grano, A Dilemma for Defense Counsel:

Spinelli-Harris Search Warrants and

the Possibility of Police Perjury, 1971

Ss 2 & Ss | wen 19

vI

Miscellaneous—Continued

Kipperman, Inaccurate Search Warrant

Affidavits as a Ground for Suppressing pace

Evidence, 84 Harv. L. Rev. 825 (1971)_- _ 16,

22, 24-25, 27

Sevilla, The Exclusionary Rule and Police

Perjury, 11 San Diego L. Rev. 839

CREE - wnanweupunnmmentpingmainin 20

————————EEeEe—

Gn the Supreme Court of the Gnited States

OctoBerR TERM, 1977

No. 77-5176

JEROME FRANKS, PETITIONER

v.

STaTE OF DELAWARE

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

DELAWARE

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

The United States will discuss the following ques-

tion:

Whether the trial court erred in denying, without

an evidentiary hearing, petitioner’s motion to sup-

press evidence seized pursuant to a search warrant

issued on the basis of a facially valid, but allegedly

inaccurate, affidavit.

INTEREST OF THE UNITED STATES

This case presents an important question concern-

ing the proper scope of the Fourth Amendment ex-

(1)

2

clusionary rule. A substantial number of federal

criminal cases involve the use of evidence seized

during a search conducted on the. authority of a

search wai. nt issued upon an affidavit that, on its

face, establishes probable cause. On those occasions

when defendants have moved to suppress the evidence

on the ground that the affidavit contained misstate-

ments of fact, the federal courts of appeals have

expressed divergent views on the availability of

relief. Accordingly, the United States has a direct

and significant interest in the determination whether

the court below erred in concluding that a defendant

may not attack the accuracy of the representations

in a search warrant affidavit and, if so, what proce-

dural and substantive requirements must be satisfied

before an evidentiary hearing must be held or evi-

dence suppressed.

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but

upon probable cause, supported by oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

STATEMENT

Following a jury trial in the Superior Court of the

State of Delaware (Kent County), petitioner was con-

3

victed of rape, kidnaping, and burglary, in violation

of 11 Del. Code Ann. 764, 783, and 826 (1975 and

1976 Cum. Supp.) The Supreme Court of Delaware

affirmed (A. 38-40; 373 A. 2d 578).

1. In the early morning of March 5, 1976, Cynthia

Bailey was sexually assaulted in her home in Dover,

Delaware (Tr. 47-55). Later the same day, petitioner

was arrested by Dover police in connection with

another rape charge, this one-involving a 15-year old

girl named Brenda Bradley. Following his arrest, peti-

tioner remarked to Cpl. Robert McClements that he

assumed the charge against him concerned Bailey

rather than Bradley (Tr. 175, 186).

Four days later, after further investigation, police

officers obtained a warrant authorizing a search of

petitioner’s apartment for “a white knit thermal un-

dershirt; a brown 3/4 length leather jacket with a tie-

belt; a pair of black men’s pants; a dark colored knit

hat; [and] a long thin bladed knife or other instru-

ments or items relating to the” alleged assault upon

Bailey (A. 9). In the affidavit submitted in support

of the warrant (A. 6-8), Det. Ronald Brooks and Det.

Larry Gray related the circumstances surrounding

the Bradley rape and petitioner’s statement at the

time of his arrest for that crime on March 5 and

averred that, on the same day, Cynthia Bailey re-

ported that she had been raped by a black male, ap-

proximately 5 feet 7 inches in height and weighing 150

pounds, wearing a white thermal undershirt, black

pants, a belt having a silver or gold buckle, a brown

leather 3/4 length coat with a tie belt in the front,

253-045—78——2

4

and a dark knit cap pulled around the eyes. The af-

fiants further represented that petitioner matched

Bailey’s physical description of her attacker, that of-

ficial records showed that petitioner had previously

been convicted of assault with intent to rape, that pe-

titioner lived only a short distance from Bailey’s

home, that James Williams of the Delaware Youth

Center, where petitioner was employed, had revealed

that petitioner’s ‘‘normal dress’’ consisted of a white

knit thermal undershirt and a brown leather jacket,

and that Wesley Lucas, also of the Youth Center, had

stated that petitioner often wore a dark green knit

hat.

In the ensuing search of petitioner’s apartment, the

police seized several articles of clothing and a knife.

Prior to trial, petitioner moved to suppress the evi- —

dence taken from his apartment on grounds that

“(t]he search warrant used was legally insufficient in

that it did not show sufficient probable cause’’ and that

‘‘[t]he affidavit portion of the search warrant is

merely conclusory” (A. 11). At oral argument on the

motion, however, petitioner expanded his contentions,

alleging for the first time that the affidavit contained

several false material misstatements of fact and re-

questing an evidentiary hearing at which the truth-

fulness of the police officers’ representations to the

magistrate could be explored. Petitioner also asserted

that, if given the opportunity, he would produce Wes-

ley Lucas of the Delaware Youth Center and James

5

Morrison, formerly of the Youth Center, who would

testify (A. 16)

that neither one of them to the best of their

knowledge gave this information to either of the

affiants contained in this affidavit, and addition-

ally that the information that they did give was

somewhat different than contained in the affida-

vit and was not to an officer who even swore

out the affidavit and that what was stated in

there is not an accurate representation of pre-

cisely what they said.

No affidavits of Lucas or Morrison or any other

evidentiary materials were submitted in support of

petitioner’s claim. The trial judge rejected petition-

er’s request for an evidentiary hearing, accepting the

State’s argument that, in ruling upon the adequacy of

the showing of probable cause for a search warrant,

the court could not look beyond the “four corners”

of the affidavit (A. 24). It then denied the suppres-

sion motion (A. 25).

At trial, Bailey identified petitioner as her assailant

and denied that she had consented to engage in sexual

activities with him (A. 28-29). In addition, over peti-

tioner’s objection, the State introduced into evidence

various articles of clothing (A. 29-31) and the knife

(A. 31-32) that had been obtained during the search

of petitioner’s apartment. Petitioner took the witness

stand and admitted that he had had sexual intercourse

with Bailey on the morning of March 5, 1976, but

* The record is unclear whether the intended witness referred

to by petitioner as “James Morrison” is the same person as the

“James Williams” whose statements were relied upon in the search

warrant affidavit.

6

mg petitioner's

tioner’s convictidgs

erly denied his

claim that the tri

request for an evidenNery

truthfulness of the statemé

warrant affidavit. Although the court below acknew!-

edged that the question whether the veracity of a

facially-valid search warrant affidavit could be chal-

lenged on a motion to suppress was an unsettled one,

it sided with what it viewed as “the majority rule” in

holding that such attacks were impermis-ible. The

court explained (A. 40):

First, it is the function of the issuing magistrate

to determine the reliability of information and

credibility of affiants in deciding whether the

requirement of probable cause has been met.

There has been no need demonstrated for inter-

fering with this function. Second, neither the

probable cause nor suppression hearings are

adjudications of guilt or innocence; the matters

asserted by [petitioner] are more properly con-

sidered in a trial on the merits.

SUMMARY OF ARGUMENT

I. Although this Court “has never passed directly”’

(Rugendorf v. United States, 376 U.S. 528, 531-532)

on the extent to which a facially valid search warrant

affidavit may be attacked on the ground that it con-

tains misstatements of fact, the federal courts of ap-

peals have uniformly concluded that there are cireum-

Ate presented in the search _-

7

stances in which at least a limited inquiry into the

accuracy of the representations must be allowed. We

agree with these decisions that a magistrate’s deter-

mination of the veracity of the factual showing for a

search warrant cannot be conclusive.

The Warrant Clause of the Fourth Amendment pro-

vides that “no warrants shall issue, but upon probable

cause, supported by oath or affirmation * * *,” and

this Court has defined probable cause as “facts and

circumstances within [the officers’] knowledge and of

which they had reasonably trustworthy information

* * * sufficient in themselves to warrant a man of

reasonable caution in the belief that” an offense has

been or is being committed. Carroll v. United States,

267 U.S. 132, 162. These important requirements

would mean very little if police officers could deceive

a magistrate into issuing a warrant on the strength of

false representations and could thus insulate their

lack of probable cause from subsequent judicial

review.

None of the reasons advanced to prohibit such

challenges is persuasive. A magistrate’s determination

of the sufficiency of a search warrant affidavit, while

entitled to deference by trial and appellate judges,

nonetheless may be attacked on a motion to suppress,

and there is no reason to assume that allowance of a

similar pre-trial challenge to the truthfulness of the

affidavit would tend to deprecate the magistrate’s

crucial function or would have an adverse effect upon

magistrates’ dedication, diligence, or morale. More-

8

over, while such challenges might on oceasion increase

the duration of pre-trial proceedings, the notion that

every allegation of a misrepresentation in a search

warrant affidavit would lead inevitably to a protracted

evidentiary hearing is illusory. Trial judges have a

variety of tools to dispose summarily of insubstantial

claims. Indeed, there is no proof that the numerous

jurisdictions that have recognized a defendant’s right

to impeach a facially-sufficient search warrant affi-

davit have experienced a wave of lengthy suppression

hearings.

II. Although a defendant may not be precluded

entirely from attacking the accuracy of the repre-

sentations in a search warrant affidayit, it does not

follow that the right to a hearing is automatic and

unlimited. As with any contention that relevant,

incriminating evidence must be suppressed because of

a Fourth Amendment defect in the procedures that

led to its seizure, the contours of a defendant’s right

must be analyzed in terms of the policies underlying

the exclusionary rule.

A. Despite its broad deterrent purpose, “the exclu-

sionary rule has never been interpreted to proscribe

the use of illegally seized evidence in all proceedings

or against all persons. As with any remedial device,

the application of the rule has been restricted to those

areas where its remedial objectives are thought most

efficaciously served.’’ United States v. Calandra, 414

-.8. 338, 348. Determination of the exclusionary rule’s

usefulness in the context of misstatements in a search

9

warrant affidavit thus requires a balancing of the in-

eremental deterrent value of suppression against the

wisdom of applying a rule that “deflects the truth-

finding process and often frees the guilty.” Stone v.

Powell, 428 U.S. 465, 490. This in turn demands a

pragmatie assessment of the culpability of the police

in presenting the false statement to the magistrate

and the magnitude of the harm caused by the official

misconduct to the privacy rights of the subject of the

search.

B. Suppression is most appropriate when law en-

forcement agents have engaged in intentional mis-

conduct. In such instances the knowing and voluntary

nature of their action gives rise to a strong need for

deterrence and creates a realistic expectation that the

suppression of evidence will have the desired effect of

preventing future transgressions. So convincing is the

argument in favor of suppression in cases of inten-

tional misstatements that the exclusionary rule should

be applied whenever the falsified information is likely

to have infliiented the magistrate’s decision to issue the

warrant, whether or not it was essential to the estab-

lishment of probable cause.

On the other hand, suppression of evidence attrib-

utable to wholly innocent misrepresentations, even

material ones, would advance none of the interests

protected by the exclusionary rule. Indeed, if the po-

lice officer had a well-founded, objective belief in the

truthfulness of the facts he relayed to the magistrate,

the Fourth Amendment would not have been offended

even if those facts were erroneous.

10

The most difficult exclusionary rule problems are

presented by affidavits containing factual misstate-

ments whose falsity, while not known to the affiant,

could have been ascertained through the exercise of

due care. We believe that the wisest accommodation

between the legitimate desire to deter unacceptable

police practices and the “‘other values vital to a ra-

tional system of criminal justice” (Stone v. Powell,

supra, 428 U.S. at 494) is achieved by concluding, as

have the majority of federal courts of appeals, that

an unintentional material misrepresentation voids the

search warrant if made recklessly, but not if made

merely negligently.

ITT. A defendant obviously need not be accorded

an evidentiary hearing if his claim of a misstatement

in a search warrant affidavit, accepted as true, would

not entitle him to relief under the standards we have

outlined above. Even if a suppression motion states

a claim for — however, the trial judge should not

be obliged to Brant an evidentiary hearing unless the

defendant (a) indicates with specificity the portions of

the affidavit alleged to be false, (b) characterizes the

government’s responsibility for the misrepresentation,

and (c) substantiates his assertions with affidavits or

other sworn statements from his intended witnesses.

These reasonable requirements would avoid unneces-

sary and time-consuming “fishing expeditions,” sought

either with the dim hope of eliciting statements that

would contradict the affidavit or to produce useful

discovery for trial, but would not unduly burden de-

ll

fendants who entertain a good faith belief that an

affidavit is inaccurate.

IV. The courts below denied petitioner’s request for

an evidentiary hearing on his suppression motion in

the erroneous belief that it was never permissible to

conduct an inquiry into the accuracy of the repre-

sentations in a search warrant affidavit. There has

therefore been no consideration of the precise nature

of petitioner’s claims or of the adequacy of his pre-

trial showing of falsity. In these circumstances, it

would be appropriate tg remand this case with in-

structions to assess petitioner’s motion to suppress in

light of the correct substantive and _ procedural

standards.

ARGUMENT

I. SOUND ADMINISTRATION OF THE FOURTH AMENDMENT

EXCLUSIONARY RULE REQUIRES THAT A DEFENDANT BE

PERMITTED TO CHALLENGE THE ACCURACY OF THE REP-

RESENTATIONS IN A FACIALLY VALID SEARCH WARRANT

AFFIDAVIT ON A MOTION TO SUPPRESS EVIDENCE

This Court “has never passed directly”? on the ex-

tent to which a facially valid search warrant may be

attacked on a motion to suppress evidence on the

ground that the underlying affidavit, although ap-

parently establishing probable cause for issuance of

the warrant, contained misstatements of fact. See

Rugendorf v. United States, 376 U.S. 528, 531-532;

North Carolina v. Wrenn, 417 U.S. 973, 973-976

(White, J., dissenting from the denial of certiorari).

253—045—3

12

In large part this is attributable to the fact that, until

recently, both state’ and federal * courts had been in

general agreement that such attacks were impermis-

sible.

Every federal court of appeals that has confronted

the issue in the past few years, however, has held

otherwise. Although articulating slightly different

standards governing the kinds of allegations that must

be made in a suppression motion to entitle a de-

fendant to an evidentiary hearing or the type of show-

ing that must be made at the hearing to entitle a

defendant to relief, these courts have recognized that

2 Indeed, this is still the rule in almost half of the states that

have considered the question. See, e.g., Powell v. State, 540 S.W.

2d 1 (Ark. Sup. Ct.) ; State v. Williams, 169 Conn. 322, 363 A.

2d 72; People v. Stansberry, 47 Ill. 2d 541, 268 N.E. 2d 431, cer-

tiorari denied, 404 U.S. 873; State v. Sanders, 222 Kan. 189, 563

P. 2d 461, certiorari denied, October 3, 1977, No. 76-1793; Caslin

v. Commonwealth, 491 S.W. 2d 832 (Ky. Ct. App.); Wood v.

State, 322 So. 2d 462 (Miss. Sup. Ct.) ; Zucker v. State, 244 Md.

488, 224 A. 2d 111, certiorari denied, 386 U.S. 1024; State v. Bru-

gioni, 320 Mo. 202, 7 S.W. 2d 262; State v. Petillo, $1 N.J. 165,

293 A. 2d 649, certiorari denied, 410 U.S. 945; Brown v. State, 565

P. 2d 697 (Okla. Crim. App.) ; State v. Seymour, 46 R.I. 257, 126

Atl. 755, partially overruled on other grounds, State v. LeBlanc,

100 R.I. 523, 217 A. 2d 471; Owens v. State, 217 Tenn. 544, 399

S.W. 2d 507; Oubre v. State, 542 S.W. 2d 875 (Tex. Crim. App.).

See generally Comment, Challenges to the Veracity of Facially

- Sufficient Warrants—Is the Truth Irrelevant?, 7 Seton Hall L.

Rev. 827, 843-844 (1976) (collecting cases).

* See, ¢.9., Kenney v. United States, 157 F. 2d 442 (C.A. D.C.) ;

Gracie v. United States, 15 F. 2d 644 (C.A. 1), certiorari denied,

273 U.S. 748; United States v. Brumett, 53 F. 2d 219 (W.D. Mo.).

See also United States v. Bowling, 351 F. 2d 236, 242 n. 2 (C.A.

6), certiorari denied, 383 U.S. 908.

13

at least a limited examination of the accuracy of the

representations in a search warrant affidavit is appro-

priate. See, e.g., United States v. Belculfine, 508 F.

2d 58 (C.A. 1); United States v. Pond, 523 F. 2d

210 (C.A. 2), certiorari denied, 423 U.S. 1058; United

States v. Armocida, 515 F. 2d 29 (C.A. 3), certiorari

denied sub nom. Gonzal v. United States, 423 U.S.

858; United States v. Lee, 540 F. 2d 1205 (C.A. 4),

certiorari denied, 429 U.S. 894; United States v.

Thomas, 489 F. 2d 664 (C.A. 5), certiorari denied,

423 U.S. 844; United States’ v. Luna, 525 F. 2d 4

(C.A. 6), certiorari denied, 424 U.S. 965; United

States v. Carmichael, 489 F. 2d 983 (C.A. 7) (en

banc) ; United States v. Marihart, 492 F. 2d 897 (C.A.

8), certiorari denied, 419 U.S. 827; United States v.

Taxe, 540 F. 2d 961 (C.A. 9), certiorari denied, 429

U.S. 1040; United States v. Harwood, 470 F. 2d 322

(C.A. 10).*

We agree with these decisions that the proper

administration of the exclusionary rule demands some

inquiry into the truth of the factual basis for a search

warrant affidavit. The Warrant Clause of the Fourth

Amendment provides that ‘‘no warrants shall issue,

but upon probable cause, supported by oath or affir-

mation * * *,’’ and this Court has defined probable

* See also American Law Institute, A Model Code of Pre-Ar-

raignment Procedure §SS290.3(1)(a) (1975): “[I]n any pro-

ceeding on a motion to suppress evidence seized by authority.of a

search warrant, or incidental] to an arrest made by authority of an

arrest warrant, the moving party shall be entitled to contest, by

cross-examination or offering evidence, the good faith of any testi-

mony presented to the issuing authority and relied on to establish

reasonable cause for issuance of the warrant.”

14

cause as ‘facts and circumstances within [the offi-

cers’] knowledge and of which they had reasonably

trustworthy information * * * sufficient in themselves

to warrant a man of reasonable caution in the belief

that” an offense has been or is being committed or

that evidence of a crime will be found in the area

to be searched. Carroll v. United States, 267 U.S. 132,

162. These important requirements, which are de-

signed to ‘‘prevent[] the issue of warrants on loose,

vague or doubtful bases of fact’’ (Go-Bart Importing

Co. v. United States, 282 U.S. 344, 357), would be

“reduce[d] * * * to a form of words” (Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 392) if

police officers could deceive a magistrate into issuing

a search warrant on the strength of false representa-

tions and could thus insulate their lack of probable

cause from subsequent judicial review. To ensure

compliance with constitutional standards, an officer

who makes a warrantless search (¢.g., because of

exigent circumstances) is routinely obliged to defend

the accuracy as well as the sufficiency of his assess-

ment of probable cause at an adversary suppression

hearing. Terry v. Ohio, 392 U.S. 1, 21-22. There is

little reason to relieve the officer of a substantial part

of this obligation by foregoing entirely any post-

search scrutiny of the truthfulness of his factual

assertions simply because the probable cause deter-

mination may have been submitted ex parte to a judi-

cial officer in advance. On the contrary, it would

appear that the deterrent objectives of the exclu-

15

sionary rule would be well served by allowing such

challenges in appropriate circumstances.°

Moreover, none of the rationales that have been

advanced in decisions prohibiting challenges to the

accuracy of a search warrant affidavit is persuasive.

1. The argument most frequently presented is that

the privacy interests protected by the Fourth Amend-

ment are substantially satisfied by requiring the mag-

istrate to consider the affiant’s credibility carefully

before issuing the search warrant * and would not be

aided significantly by a second inquiry into the subject

after the search has occurred. See, e.g., State v.

° Although not relevant to a defendant’s entitlement to an evi-

dentiary hearing on his suppression motion, the fact that a war-

rant was obtained by the police officer may be extremely signifi-

cant in the ultimate determination whether the evidence uncov-

ered as a result of the search should be suppressed. In the govern-

ment’s petition for a writ of certiorari in United States v. Kara-

thanos, No. 75-1402, certiorari denied, 428 U.S. 910, we argued

that a distinction should be drawn for exclusionary rule purposes

between searches with and without warrants and that the rule

should not be applied to bar the admission of evidence, obtained

in good faith by federal law enforcement officers executing a

facially valid search warrant issued by a federal magistrate, be-

cause the warrant was ultimately held to have been erroneously

issued. The petition recognized an exception, however, for war-

rants “procured in bad faith or on the basis of material misrepre-

sentations” (Pet. 11-12).

* Magistrates are equipped with authority to accomplish this

task. Rule 41(c), Fed. R. Crim. P., for example, provides that

“bJefore ruling on a request for a warrant the federal magistrate

or state judge may require the affiant to appear personally and

may examine under oath the affiant and any witnesses he may

produce * * *.” See also 11 Del. Code Ann. 2301 e¢ seg. (1975).

16

Anselmo, 260 La. 306, 256 So. 2d 98, 101, certio-

rari denied, 407 U.S. 911; People v. Bak, 45 Ill. 2d

140, 144-146, 258 N.E. 2d 341, 343-344, certiorari

denied, 400 U.S. 882. As Chief Justice Weintraub put

the matter in State v. Burnett, 42 N.J. 377, 388, 201

A. 2d 39, 45, in a passage quoted with approval in

McCray v. Illinois, 386 U.S. 300, 307, “[w]here the

issue of probable cause is submitted upon an appli-

eation for a warrant, the magistrate is trusted to

evaluate the credibility of the affiant in an ex parte

proceeding.” Once that process has occurred, these

courts have reasoned, re-examination of the credibil-

ity question on a motion to suppress would tend to

deprecate the importance of the magistrate’s crucial

function and “would make the issuance of a warrant

more mechanical and less a solemn judicial act * * *.’’

Kipperman, Inaccurate Search Warrant Affidavits as

a Ground for Suppres ng Evidence, 84 Harv. L. Rev.

825, 830 (1971).’

2. Other courts have contended, with some justifica-

tion, that a rule sanctioning challenges to a search

warrant based upon the falsity of the underlying affi-

davit would necessarily precipitate a number of time

"As Judge Frankel observed in United States v. Halsey, 257 F.

Supp. 1002, 1005 (S.D. N.Y.) : “To begin at the beginning, when

the Fourth Amendment demands a factual showing sufficient to

comprise ‘probable cause,’ the obvious assumption is that there

will be a truthful showing. And so, if there were nothing more

to consider, it would follow that the veracity of a supporting

affidavit could always be tried on a motion to suppress. But there

are other, ultimately decisive things to consider. One is the ques-

tion of appropriately dividing power and responsibility between

the magistrate issuing a warrant and a judge later considering its

legality.”

17

consuming ‘‘mini-trials,” often requiring the resolution

of difficult questions concerning a witness’s veracity.

In light of what these courts have considered to be

“the speculative risk of a rare warrant issued on a

false statement’’ (State v. Petillo, 61 N.J. 165, 178,

293 A. 2d 649, 655, certiorari denied, 410 U.S. 945), and

the availability of an ‘‘indictment for perjury or false

swearing, a charge of criminal contempt, and assess-

ment of monetary damages in a civil action” against

the occasional mendacious affiant (id. at 174, 293 A. 2d

at 653-654), such mini-trials have not been thought to

be worth the cost of taxing further an already over-

burdened judicial system and of ‘‘frustrat[ing] the

public’s interest in the fast and expeditious adminis-

tration of criminal laws.’’ United States v. Dionisio,

410 U.S. 1, 17. See, e.g., State v. Anonymous, 30 Conn.

Supp. 211, 309 A. 2d 135, 143; Brown v. State, 565 P.

2d 697, 701 (Okla. Crim. App.); State v. Anselmo,

supra, 256 So. 2d at 103-104.

3. Finally, other courts, among them the court be-

low (A. 40), have observed that any claim of falsity

in a search warrant affidavit, when raised in a pre-

trial suppression motion, is inherently suspect in view

of the probative evidence of criminal activity uncov-

ered by the search, but that, to the extent that the

question of the affidavit’s truthfulness is subject to

relitigation, it involves essentially an issue of credi-

bility of the government’s proof that should best be

left for trial. See, e.g., State v. Williams, 169 Conn.

322, 363 A. 2d 72, 76-77; State v. Petillo, supra, 61

N.J. at 177, 293 A. 2d at 655.

18

There are, we believe, satisfactory answers to each

of these concerns. It does not disparage the impor-

tant role played by the magistrate to suggest that his

conclusions about an affiant’s veracity should be re-

viewable. A magistrate’s probable cause determina-

tion, after all, while entitled to some deference at a

suppression hearing (United States v. Ventresca, 380

U.S. 102, 106, 109; Aguilar v. Texas, 378 U.S. 108,

111), has always been subject to later examination by

trial and appellate judges, apparently without ap-

preciable adverse effects upon magistrates’ dedication,

diligence, or morale. Indeed, there would appear to be

even greater justification for permitting post-search

challenges to an affidavit’s accuracy than to its suf-

ficiency: unlike the legal question of probable cause

(which depends for its resolution solely upon a read-

ing and evaluation of the face of the affidavit), an

adequate inquiry into the truthfulness of the affiant’s

factual allegations often may not be feasible in a non-

adversary proceeding or in the hurried atmosphere in

which many warrants are issued. Moreover, even if

such an inquiry could be made, a rule preventing any

examination into the accuracy of the representations

in an affidavit after a warrant has been issued would

discourage magistrates from relying upon an affiant’s

facially credible factual assertions, surely an unwise

development.

Nor can an absolute prohibition on such challenges

be justified by considerations of administrative con-

venience. If, as we believe, challenges to the veracity

of a search warrant affidavit are necessary to ensure

19

the realization of the deterrent purposes of the ex-

clusionary rule, the desire to expedite pre-trial pro-

cedures, albeit legitimate, would not justify total pre-

clusion of a forum in which to air these claims. But

more important, the premise for this argument is

faulty:

First, 60 to 90 per cent of all defendants

plead guilty, usually without a prior motion

to suppress. Second, most searches are con-

ducted without warrants, and the defendants

in these cases now have full opportunity to file

a suppression motion. Third, even in those few

cases involving warrants, defendants can obtain

a suppression hearing of limited scope, simply

by asserting that the warrant’s execution was

unlawful. Hence, permitting defendants to con-

trovert warrants would increase the present

number of suppression hearings only insignifi-

cantly and merely add length to some hearines

already granted. _

Grano, A Dilemma for Defense Counsel: Spinelli-

Harris Search Warrants and the Posstbility of Police

Perjury, 1971 U. of Ill. L. F. 405, 417 (footnotes omit-

ted). Moreover, it is by no means necessary that every

allegation of a misrepresentation in a search warrant

affidavit be permitted to spawn a protracted evi-

dentiary hearing. As we discuss below (see pp. 30-33,

infra), trial judges have a variety of tools to dispose

of frivolous or insubstantial claims without a full-

dress hearing. We know of no evidence indicating

that those state and federal jurisdictions that have

allowed defendants to attack the accuracy of search

20

warrant affidavits on a motion to suppress have ex-

perienced a deluge of time-consuming proceedings.‘

Finally, it is no answer to the problem of inaccurate

search warrant affidavits to suggest that the credi-

bility question be left for trial. The affiant may not

testify, and even if he does, the representations he

made in order to obtain the warrant may be wholly

irrelevant te the issue of guilt or innocence, in which

event cross-examination on that subject would prop-

erly be foreclosed. What is more, once the court has

determined to admit the evidence seized pursuant to

the challenged warrant, the remedy to a defendant

* By the same token, there is little reason to believe that these

administrative costs, even if slight, are unnecessary because the

alternative sanction of civil or criminal proceedings against a

police officer who has submitted a false affidavit would be a suffi-

cient deterrent. See generally Sevilla, The Exclusionary Rule and

Police Perjury, 11 San Diego L. Rev. 839 (1974). Even if avail-

able, and they may not be (¢.g.. the false statement may not have

been intentional), such alternative remedies have not been thought

adequate to deter Fourth Amendment violations in other

contexts. Although the exclusionary rule has been criticized as “a

blunt instrument, conferring an altogether disproportionate re-

ward not so much in the interest of the defendant as in that of

society at large” (United States v. Dunnings, 425 F. 2d 836, 840

(C.A. 2) (Friendly, J.), certiorari denied, 397 U.S. 1002), and its

utility has been severely questioned (see, ¢.g., Bivens v. Siz Un-

known Named Agents, 403 U.S. 388, 411-424 (Burger, C. J., dis-

senting) ), it is the currently accepted response once evidence has

been seized in violation of a defendant’s Fourth Amendment

rights. Mapp v. Ohio, 367 U.S. 643. Although we discuss below

what we believe to be the proper limitations of the exclusionary

Tule in the context of false search warrant affidavits (see pp.

21-30, infra), we see no justification, so long as the exclusionary

rule exists, for a blanket refusal to apply the remedy of suppres-

sion for such violations.

21

who has exposed the inaccuracy at trial will rarely

be adequate.’

Il. THE LEGAL SIGNIFICANCE OF A FALSE STATEMENT IN A

SEARCH WARRANT AFFIDAVIT SHOULD BE ANALYZED IN

LIGHT OF THE PURPOSES OF THE EXCLUSIONARY RULE

The conclusion that a defendant may not be totally

precluded from attacking the accuracy of a search

warrant affidavit does not suggest that every suppres-

sion motion charging a mistake or misrepresentation

in the affidavit must result in an evidentiary hearing

or that every showing that an affidavit contained a

false statement must inevitably lead to the suppression

of evidence. The right to challenge the veracity of the

representations in a facially valid search warrant

affidavit, we submit, is not automatic and unlimited.

This case may not be an appropriate vehicle in

which to explore fully the limits of the right, because

the courts below denied petitioner an evidentiary hear-

ing, without any consideration of the nature of his

claims, in the belief that “no attack upon the veracity

of an underlying affidavit may be made” (A. 40).

Nonetheless, it may prove helpful in the disposition

of this case to provide a brief outline of the approach

that we believe should be utilized to resolve this type

of recurring problem.

~ * The related suggestion that the discovery of probative evidence

in the course of execution of the warrant tends to substantiate

the accuracy of the representations in the affidavit is incompatible

with the settled doctrine thet the legality of a search may not

be sustained by what it in fact discloses. See United States v. DiRe,

332 U.S. 581, 595.

22

In our view, the contours of a defendant's right to

obtain suppression of relevant, incriminating evidence

seized pursuant to a facially sufficient search warrant

because of a defect in the procedures that led to its

issuance must be analyzed in terms of the policies

underlying the Fourth Amendment exclusionary rule.

A court should delve behind the face of a search

warrant affidavit only in those instances where an

alleged error in the affidavit has resulted “from an

act or omission by a government agent which is ob-

jectionable in light of the purposes of the fourth

amendment.” Kipperman, supra, 84 Harv. L. Rev. at

831.

A. The judicially created exclusionary rule is de-

signed to compel ‘‘respect for the constitutional guar-

anty in the only effectively available way--by remov-

ing the incentive to disregard it.” Elkins v. United

States, 364 U.S. 206, 217." As the Court explained in

** The exclusionary rule has also been justified on principles

of “judicial integrity” that make courts unwilling to become a

“party to lawless invasions of the constitutional! rights of citizens.”

Terry v. Ohio, supra, 392 U.S. at 12-13. See also Elkins v. United

States, supra, 364 U.S. at 222. But those principles require “essen-

tially the same [inquiry] as the inquiry into whether exclusion

would serve a deterrent purpose.” United States vy. Janis, 428 U.S.

$33, 458-459 n. 35. That is, principles of judicial integrity preclude

the courts from admitting evidence where to do so would signifi-

cantly encourage future invasions of constitutional rights. /did.

The rationale of judicial integrity therefore does not constitute

“an independent basis for excluding challenged evidence.” Michi-

gan v. Tucker, 417 U.S. 433, 450 n. 25. See also Stone v. Powell, 428

U.S. 465, 485; United Siates v. Peltier, 422 U.S. 531, 536-539;

United States y. Calandra, 414 U.S. 338, 355-356 n. 11.

23

Michigan v. Tucker, 417 U.S. 433, 447:

The deterrent purpose of the exclusionary rule

necessarily assumes that the police have en-

gaged in willful, or at the very least negligent,

eonduct which has deprived the defendant of

some right. By refusing to admit evidence

gained as a result of such conduct, the courts

hope to instill in those particular investigating

officers, or in their future counterparts, a

greater degree of care toward the rights of an

accused.

Despite its broad deterrent purpose, however, “the

exclusionary rule has never been interpreted to pro-

seribe the use of illegally seized evidence in all

proceedings or against all persons. As with any reme-

dial device, the application of the rule has been

restricted to those areas where its remedial objectives

are thought most efficaciously served.” United States

v. Calandra, 414 U.S. 338, 348. Recognizing that the

suppression remedy is not “a personal constitutional

right of the party aggrieved’’ (id. at 348) and that “if

applied indiscriminately it may well have the opposite

effect of generating disrespect for the law and admin-

istration of justice” (Stone v. Powell, 428 U.S. 465, 491),

this Court on a number of occasions has declined to

extend the exclusionary rule to situations in which the

effectiveness of the sanction in deterring improper

official conduct was outweighed by the significant

social costs that the rule exacts—the suppression of

relevant evidence of criminal activity. See, e.g., Stone

v. Powell, supra, 428 U.S. at 489; United States v.

Janis, 428 U.S. 483, 454; Untted States v. Peltier, 422

24

U.S. 531, 539; United States v. Calandra, supra, 414

U.S. at 351-352; Alderman v. United States, 394 U.S.

165, 171-172.

Determination of the exclusionary rule’s usefulness

in the context of misrepresentations in search war-

rant affidavits thus requires a balancing of the incre-

mental deterrent value of suppression against the

wisdom of applying a rule that “deflects the truthfind-

ing process and often frees the guilty.” Stone v.

Powell, supra, 428 U.S. at 490." This in turn demands

a pragmatic assessment of the culpability of the

police in presenting the false statement to the magis-

trate and the magnitude of the harm caused by the

misconduct to the privacy rights of the defendant, 1.e.,

the materiality of the misrepresentation to the issu-

ance of the warrant.”

11 There must, of course, be a threshold finding that the Fourth

Amendment has been violated before the appropriateness of apply-

ing the exclusionary rule may be considered. For example, er-

roneous statements in a search warrant affidavit as to matters not

within the affiant’s personal knowledge—snch as allegations of

criminality, related by a previously reliable informant, that turn

out to be untrue—would not vitiate probable cause if the affiant

had a substantial, reasonable basis for crediting the erroneous rep-

resentations. See United States v. Harris, 403 U.S. 573; United

States v. Carmichael, supra, 489 F. 2d at 989, This Court recog-

nized as much in Rugendorf v. United States, supra, 876 U.S. at

533 (footnote omitted) : “Petitioner’s only challenges to the verac-

ity of the affidavit are the two inaccurate facts mentioned above.

Since the erroneous statements that petitioner was the manager of

Rugendorf Brothers Meat Market and was associated with Leo

in the meat business were not those of the affiant, they fail to show

that the affiant was in bad faith or that he made any misrepresen-

tations to the Commissioner in securing the warrant.”

28 Materiality here means only that the erroneous allegation

was necessary to establish probable cause. See Kipperman, supra,

eo ee

Ante Ce eee ee Soe

a ee es

25

Bb. Application of the exclusionary rule obviously is

most appropriate when law enforcement officers have

engaged in intentional misconduct. In such cases the

knowing and voluntary nature of the misrepresenta-

tion gives rise to a strong need for deterrence and at

the same time promises that the suppression of evi-

dence will tend to have the desired effect of preventing

future transgressions. Suppression is also justified to

further the “imperative of judicial integrity,’’ since

the misconduct involved is the deliberate deception of

a judicial officer and the consequent subversion of the

judicial process. See Stone v. Powell, supra, 428 U.S.

at 484.

Indeed, so convincing is the argument in favor of

suppression in cases of intentiona] misstatements in

a search warrant affidavit (and so implausible the

countervailing interests justifying such behavior) that

84 Harv. L. Rev. at 829 n. 35. To determine materiality, the court

“excis[es] the misrepresentative parts from the affidavit and then

examin[es] the residue for probable cause.” United States v.

Thomas, supra, 489 F. 2d at 668. Misstatements not essential to

the probable cause showing subject those against whom the search

was directed to no greater intrusion than the government was en-

title to undertake, since the warrant presumably would have is-

sued in the absence of any misrepresentation. It is for this reason

that the exclusionary rule has not been held to require the sup-

pression of evidence seized pursuant to a search warrant issued on

the basis of an affidavit including tainted representations that

were not necessary to the establishment of probable cause. See

United States v. Marchand, C.A. 2, No. 77-1181, decided August

22, 1977, slip op. 5410-5411 (Friendly, J.) (collecting cases),

pending on petition for a writ of certiorari, No. 77-775; United

States v. Grumsfeld, 558 F. 2d 1231, 1239-1241 (C.A. 6), pending

on petition for a writ of certiorari, No. 77-5271.

26

the exclusionary rule should be applied even if the

falsified information is not necessarily material to

the probable cause determination. Unless this sanction

were available, there would be little to discourage un-

scrupulous police officers from appending untrue al-

legations to an affidavit in any close ease in an effort

to sway a hesitant magistrate. We agree with the

First Cireuit’s observation in United States v. Belcul-

fine, supra, 508 F. 2d at 63, that “[w]Jere the judi-

cial response to be merely the elimination of the

false statements and the assessment of the affidavit’s

adequacy in light of the remaining averments, en-

forcement officers would be placed in the untoward

position of having everything to gain and nothing to

lose in strengthening an otherwise marginal affi-

davit by letting their intense dedication to duty blur

the distinction between fact and fantasy.’’ To elimi-

nate any incentive of the police to capitalize upon

such tactics, evidence should be excluded if obtained

as a result of a search warrant procured by use of an

affidavit containing any “intentional, relevant, and

nontrivial misstatement” (ibid.).”

“33 An alternative standard, articulated by some courts, bars

evidence whose seizure is attributable to any misrepresentation

“committed with an intent to deceive the magistrate.” See, ¢.g.,

United States v. Thomas, supra, 489 F. 2d at 669. A broader

rule, requiring suppression in every instance of an intentional mis-

representation, would be unnecessarily costly, since law enforce-

ment officers may occasionally include false statements in a search

warrant affidavit in good faith and with no desire to subvert the

Fourth Amendment (e.g.,@ pseudonym may be used to protect the

identity of a confidential informant). While such misrepresenta-

27

On the other hand, suppression of evidence attribut-

able to wholly innocent misstatements, even material

ones, would advance none of the interests protected by

the exclusionary rule. See, e.g., United States v. Hole,

564 F. 2d 298, 301 (C.A. 9); United States v. Evers,

502 F. 2d 1119, 1122 (C.A. 5); United Staies v. Taze,

supra, 540 F. 2d at 967. The law ‘‘cannot realistically

require that policemen investigating serious crimes

make no errors whatsoever. The pressures of law en-

forcement and the vagaries of human nature would

make such an expectation unrealistic.’”” Michtgan v.

Tucker, supra, 417 U.S. at 446. Where the erroneous

official action was pursued in good faith, therefore,

the deterrence rationale loses much of its force. Id.

at 447.

More important, if the police officer had a well

founded, objective belief in the accuracy of the facts

he relayed to the magistrate, even if those facts were

erroneous the Fourth Amendment itself would not

have been offended. ‘‘It is true that the warrant will

have been issued on inaccurate data, but the fourth

amendment has been read not to proscribe ‘inaccurate’

searches, but rather only ‘unreasonable’ ones. And a

warrant based on information which the affiant and

the magistrate both had reasonable grounds for believ-

ing is a reasonable one.” Kipperman, supra, 84 Harv.

L.. Rev. at 832 (footnote omitted). See Brinegar v.

United States, 338 U.S. 160, 176; note 11, supra.

tions are not encouraged, they do not involve the same

of culpability as do misrepresentations calculated eithér to obtain

a warrant that should not be issued or to remove doubts about the

existence of probable cause.

28

In between the polar extremes of intentional and

innocent misrepresentations lie factual misstatements

whose falsity, while not known to the affiant, could

have been ascertained by the exercise of due care.

Although the federal courts of appeals are in agree-

ment that such misrepresentations should not lead to

suppression if unnecessary to the establishment of

probable cause, slightly different positions have

emerged in the treatment of material misrepresenta-

tions. The majority of cireuits have held that an un-

intentional material misrepresentation voids the

warrant if made recklessly, but not if made merely

negligently. See, e.g., United States v. Collins, 549

F. 2d 557, 561 (C.A. 8); United States v. Lee, supra,

540 F. 2d at 1209; United States v. Rosenbarger, 536

F. 2d 715, 720 (C.A. 6), certiorari denied, 431 U.S.

965; United States v. Marihart, supra, 492 F. 2d at

899-900; United States v. Carmichael, supra, 489

F. 2d at 989. Other circuits have suggested, however,

that the deterrent purposes of the exclusionary rule

would be better served by holding the warrant in-

valid even if the affidavit contained only a negligent

misrepresentation of a material fact. United States v.

Astrof, 556 F. 2d 1369, 1371-1372 (C.A. 5), rehear-

ing en bane granted, 564 F. 2d 199. See also United

States v. Gonzalez, 488 F. 2d 833, 837 (C.A. 2);

United States v. Harwood, supra, 470 F. 2d at 324-

325.

There is much to be said in favor of a rule requir-

ing the suppression of evidence seized as a result of

material misstatements that are included in an affi-

we ae

29

davit without regard for their accuracy. Reck-

less misstatements submitted toa magistrate in an ef-

fort to procure a search warrant are deserving of con-

demnation, are deterrable, and (when material) have

directly contributed to a significant, unjustified gov-

ernmental intrusion. Enforcement of the exclusionary

rule in these cireumstances would encourage law en-

forcement officers to make some effort to verify key

facts before seeking a warrant and would add sub-

stantially to the privacy interests protected by the

Fourth Amendment.

These arguments lose much of their force, however,

when a misstatement is the product of simple negli-

gence. While negligent conduct by police officers is

avoidable in theory, in practice ‘‘no workable test sug-

gests itself for determining whether an officer was

negligent or completely innocent in not checking his

facts further.’’ United States v. Carmichael, supra,

489 F’. 2d at 989. It would, in addition, be especially

unfortunate if suppression of probative evidence of

guilt were to depend upon the outcome of elaborate

evidentiary hearings at which both sides would at-

tempt—seldom, we suspect, with satisfactory results—

to establish the degree of care that a hypothetical

‘reasonable policeman’’ would have exercised under

the circumstances of a particular case or upon a ju-

dicial determination of a concept as subjective and

slippery as “negligence.”

' Moreover, even assuming that exclusion of evidence

in the case of a negligent misrepresentation might

have some ‘incremental deterrent effect” (United

30

States v. Calandra, supra, 414 U.S. at 351), any mar-

ginal benefits would be “outweighed by the acknowl-

edged costs to other values vital to a rational system

of criminal justice.” Stone v. Poweli, supra, 428 U.S.

at 494. All too often the rule would result in suppres-

sion where “[t]he disparity * * * between the error

committed by the police officer and the windfall af-

forded a guilty defendant * * * is contrary to the

idea of proportionality that is essential to the concept

of justice.” Id. at 490 (footnote omitted). Under no

view of the realistic “balancing process” (td. at 488)

required by the exclusionary rule do we think it ap-

propriate to insist upon the suppression of evidence in

such circumstances.

UII. AN EVIDENTIARY HEARING ON A DEFENDANT'S CLAIM

OF MISREPRESENTATION IN A SEARCH WARRANT AFFI-

DAVIT NEED NOT BE HELD IN THE ABSENCE OF SPECIFIC

FACTUAL ALLEGATIONS WHICH SATISFY THE TRIAL

JUDGE THAT A FURTHER INQUIRY IS REQUIRED

Although a defendant should be allowed to challenge

the accuracy of the representations in a facially-valid

search warrant affidavit, such claims may of course be

dismissed without an evidentiary hearing if, accepted

as true, they would not entitle the defendant to relief.

Thus, under the principles outlined above, summary

disposition of a motion to suppress would be appro-

priate if a defendant’s claims amounted to nothing

more than an allegation of an unintentional imna-

terial misrepresentation or of an innocent or negligent

misrepresentation, whether or not material.

31

Even if a defendant’s allegations state a claim for

relief, however, the trial judge should not be required

to grant a hearing if the suppression motion is sup-

ported solely by vague or conclusory assertions. It

would be the rare defendant who could not invent a

plausible claim of falsity in the search warrant affi-

davit (combined with an automatic allegation that the

misstatement was intentional) in the hope that, by

cross-examination of the affiant and the sources of the

affiant’s information, he might elicit statements that

would either contradict the affidavit or provide useful

discovery for trial.

Such “fishing expeditions” should be prohibited not

only because they would embroil the courts in time-

consuming and unnecessary pre-trial proceedings, but

also because a search warrant affidavit is more than a

mere pleading, the contents of which may be placed in

issue by a simple denial. It is a sworn statement, gen-

erally by a law enforcement agent, that has been

accepted as true and acted upon by a judicial officer.

As such, as the federal courts have uniformly held, it

is presumptively valid and may be called into question

only by a preliminary showing of falsity. See United

States v. Scott, 555 F. 2d 522, 528 (C.A. 5) (collecting

cases), certiorari denied, No. 77-432, December 5,

1977."* | |

** This notion obviously is not limited to attacks upon search

warrant affidavits. A defendant’s entitlement to an evidentiary

hearing on a motion for a new trial (see, ¢.7., United States v.

Ourry, 497 F. 24 99, 101 (C.A. 5), certiorari denied, 419 U.S. 1035;

United States v. Houle, 490 ¥. 24 167, 171 (C.A. 2), certiorari de-

nied, 417 U.S. 970) or collateral relief (see Blackledge v. Allizon,

431 U.S. 63, 75-76) is also dependent upon his yan initial

demonstration iiwidiwiw

32

Because affidavits for search warrants will vary

widely in their content, it is impossible to anticipate

the different types of showings that would satisfy this

standard. “[A]s it does so very often in procedural

and evidentiary matters,” the final decision must rest

“within the good sense and experience of the district

judge * * *,.’? Palermo v. United States, 360 U.S. 343,

353. At a minimum, however, we believe that the bur-

den must include the following: First, the defendant

should be required to specify the precise information

in the search warrant affidavit that he contends is

false and to state whether the misrepresentation re-

sulted from the intentional or reckless conduct of the

government. Each of these contentions should be ac-

companied by a detailed statement of the reasons that

support it. See United States v. Scott, supra, 555 F.

2d at 528. Second, the defendant should be obliged

to furnish affidavits or other sworn statements (¢.g., a

transcript of testimony at another proceeding) of the

major witnesses upon whom he will rely to prove his

claim. See United States v. Luna, supra, 525 F. 2d at

6; United States v. Carmichael, supra, 489 F. 2d at

989. In cases where satisfaction of the affidavit re-

quirement would be impractical (e.g., where the de-

fendant intends to call a hostile witness, such as a

police officer), the defendant should inform the court

of these difficulties and should submit an affidavit

18 Cf. American Law Institute, A Model Code of Pre-Arraign-

ment Procedure, supra, § $S290.3(1)(b) (evidence upon which a

search warrant is issued may be contested “only upon

motion, supported by affidavit, setting forth substantial basis for

questioning the good faith of the testimony * °°").

33

setting forth the testimony that he expects to present

at an evidentiary hearing to establish the falsity

of the representations made to procure the search

warrant.

Compliance with these procedures would not be

unduly burdensome to defendants who entertain a

good faith belief that a search warrant affidavit is

inaccurate. Moreover, these requirements are not in-

flexible, and trial judges would have a wide measure

of discretion to dispense with them in an appropriate

case. But a defendant should have no constitutional

right to an evidentiary hearing unless these reasonable

prerequisites, which accommodate the interests of the

Fourth Amendment with legitimate concerns for judi-

cial economy, have been satisfied.

IV. THIS CASE SHOULD BE REMANDED FOR A DETERMINA-

TION WHETHER PETITIONER’S BELATED, UNSWORN

ALLEGATIONS WERE SUFFICIENT TO ENTITLE HIM TO AN

EVIDENTIARY HEARING

At the oral argument on his suppression motion,

petitioner challenged for the first time those portions

of the search warrant affidavit of Detectives Brooks

and Gray that represented that James Williams and

Wesley Lucas of the Delaware Youth Center, where

petitioner was employed, had told them that petitioner

often dressed in clothing similar to that worn by

Bailey’s assailant. Petitioner asserted that Lucas and

Morrison would testify at an evidentiary hearing that

some of the statements attributed to them in the

affidavit had never been made to the affiants and

that the affiants had not accurately related others to

34 7

the magistrate (A. 16). Although it is arguable that

the allegedly false statements were not essential to the

establishment of probable cause, the nature of the

allegations of falsity suggests the possibility that the

misstatements, if any, were made with an intent to

deceive the magistrate into issuing the warrant.” If

that suspicion were substantiated, the materiality of

the false statements would be irrelevant under the

standards we have proposed.

On the other hand, although petitioner's allegations

of falsity were specific, they were neither made in

his written motion to suppress nor supported by aff-

16 As noted above (see p. 3, supra), the affiidavit truthfully rep-

resented that petitioner had virtually admitted to the police that

he had been involved in sexual activity with Bailey. Although

at the suppression hearing petitioner objected to the use of this

statement on the ground that it had been unlawfully obtained (A.

15), this contention was rejected by the trial judge and the Su-

preme Court of Delaware and petitioner did not preserve the issue

in his petition for a writ of certiorari.

1 Petitioner's counsel explained at the suppression hearing (A.

22-23): “The affidavit indicates that personal information, per-

sonal contact wag made with certain witnesses and certain informa-

tion was obtained. I intend to produce evidence that the person who

said that did not personally contact those individuals at all, and I

think this is not dealing with peripheral relevancy. As such, I feel

that there may have been at least some misrepresentation to the

Magistrate from what I have been told that in fact they didn’t even

contact that person. They may have had some other information

a little bit different, but obtained through another police officer

35

davits or other evidentiary materials from persons

with first-hand knowledge of the crucial events, even

though there would appear to be no reason why such

proof could not have been obtained. At thi juncture,

however, there is no necessity for this Court to con-

sider the adequacy of petitioner’s pre-trial showing of

falsity, because the trial judge based his denial of

petitioner’s request for an evidentiary hearing, not

upon any defects in petitioner’s proffer, but rather

upon the erroneous legal conclusion that such a hear-

ing was never required (A. 28). In these circum-

stances, we submit that the appropriate disposition is

to remand this ease with instructions to consider

petitioner’s request for an evidentiary hearing on his

motion to suppress under the substantive and pro-

cedural principles discussed above."

and they learned of it, but nevertheless apparently a misrepresen-

tation to the Magistrate in the court below and I don’t feel that

is dealing with the peripheral relevancy.

“I think any magistrate would be extremely upset if a police

officer gave him an affidavit and it turned out later that officer

ns ne a eS Seay ie Go way Se wld

1t was.

** A state is of course free as a matter of local practice to impose

less restrictive guidelines than the ones we have suggested for de-

termining whether a defendant’s preliminary showing is sufficient

to entitle him to an evidentiary hearing.

36

CONCLUSION

The judgment of the Supreme Court of Delaware

should be vacated and the case remanded for further

proceedings consistent with the views we have ex-

pressed.

Respectfully submitted.

Wane H. McCreg, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

KENNETH 8S. GELLER,

Assistant to the Solicitor General.

JEROME M. Fer,

Pav. J. Brysx,

Attorneys.

JANUARY 1978.

SS. GOVERE SEE FEIETING OFFICE. 1878