# Amicus Brief — Franks v. Delaware

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0813%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 154

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0813%3A7. Public record. Not legal advice.