Amicus Brief — Franks v. Delaware

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In THE

Supreme Court of the United States

Ocroper Term, 1977

No. 77-5176

——

JEROME FRANKS,

Petitioner,

—V.—

Tue State or DELAWARE,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF DELAWARE

——

MOTION OF THE AMERICAN CIVIL LIBERTIES

UNION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE

Bravuce J. Exyis

American Civil Liberties

Union Foundation

22 East 40th Street

New York, New York 10016

Attorney for Amicus Curiae

meeeeSeeee—————

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977.

No. 77-5176 ~*

JEROME FRANKS,

Petitioner

Vv.

THE STATE OF DELAWARE,

Respondent

—=—_-

On Writ of Certiorari to the

Supreme Court of Delaware

MOTION OF THE

AMERICAN CIVIL LIBERTIES UNION

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The American Civil Liberties

Union respectfully moves, pursuant to

Rule 42 of this Court's Rules, for

leave to file the within brief

amicus curiae. Counsel for the Peti-

tioner has consented to the filing

of this brief. */ Counsel for the

respondent has refused consent.

#7 A copy of that letter is being

filed with the Clerk.

Se ee ae ee ee

The ACLU is a nationwide, non-

partisan organization of over

250,000 members, dedicated to defend-

ing the Bill of Rights. Central among

those rights are the privacy rights

embodied in the Fourth Amendment.

The ACLU has participated in

hundreds of cases involving those

safeguards, including Ma v. Ohio,

367 U.S. 643 (1961) (exclusionary

rule), Camara v. Municipal Court,

387 U.S. 523 CISt7) (probable cause

requirement), and United States v.

Chadwick, U.S. , D3 L.-bd.2d 538

warrant requirement).

The ACLU has a particular inter-

est in this case because the privacy

protections reaffirmed in Mapp, Camara,

and Chadwick are directly threatened

by the respondent's arguments. Essen-

tially, respondent argues that courts

need not entertain sub-facial chall-

enges to the validity of search war-

rants, even when it is alleged, and

there is reasonable basis to believe,

that the warrant was obtained solely

because of knowing and intentional

misrepresentations made by police

officers. Moreover, we think it im-

portant that the Court be provided with

research that will not be submitted by

either party, challenging the wide-

spread assumption (accepted by the

court below) that most courts prohibit

sub-facial challenges to the veracity

of search warrant affidavits. Fin-

ally, this amicus brief argues that

this case can be resolved on a

narrower ground than either party

iii

will suggest.

In order to present this analysis,

the ACLU respectfully moves for leave

to file this amicus brief.

Respectfully submitted,

BRUCE J. ENNIS

American Civil Liberties

- Union Foundation

22 East 40th Street

New York, New York 10016

Attorney for Amicus Curiae

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-5176

JEROME FRANKS,

Petitioner,

THE STATE OF DELAWARE,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

BRIEF FOR THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

TABLE OF CONTENTS

Page

Motion for Leave to

File Brief Amicus Curiae .......-. i

Table of Authorities eeeereeeeeeeee vii

INTEREST OF AMICUS eeeereeereeeev eee 2

STATEMENT OF THE CASE ..eeeeececes 3

QUESTION PRESENTED e*eeereeneeeeneeeee¢ees¢: 3

SUMMARY OF ARGUMENT ...-eseeeecees 4

ARGUMENT e*eeeeneeeeneeneeeetc#neeeeneeeeee 6

THE FOURTH AMENDMENT REQUIRES

THAT DEFENDANTS BE AFFORDED AN

OPPORTUNITY TO IMPEACH INTENTIONAL

AND MATERIAL MISREPRESENTATIONS

IN SEARCH WARRANT AFFIDAVITS

Introduction eeeeoeeseeeeeeereeeeeeeeeee 6

A. A Search Pursuant to a Warrant

Based on Intentional and Material

Misrepresentations is a Search

without Probable Cause, in

Violation of the Fourth Amendment. 13

B. Sub-facial Challenges Allegin

Intentional Misstatement Should

Be Permitted 2... cece cece ce eee 24

1. There are no compellin

reasons for rohibiting

sub-facial challenges ...... 26

Page

a. The importance of the

Violation ccccccccccccscesses 26

b. Exigencies of law

ENHOFCeMENt .-eeeeeeeeceees 28

c. The magistrate's function.. 29

ad. The experience of other

* jurisdictionsS......-eeeee++ 30

2. Compelling Fourth Amendment

gone erations support sub-

Facial Cc a ENGES.-seseercees 44

CONCLUSION eoeeeeeeeveeeeeeeeeeeeeeee 47

vii

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S.

108 (1964) . > >. . > > . _ o .

Alderman v. United States,

394 0.8. 165 (3069) . « © « «

Almeida-Sanchez v. United States,

413.U.S. 266 (1973) .... 14,

Ashwander v. Ternessee Valley

Authority, 297 U.S. 288

(1937) > * * > o . oO . . > 7. .

Bivens v. Six Unknown Named

Agents, 456 F.2d 1339 (2d Cir.

1972), on remand from 403

U.S. 388 (1971) o . . a ° ° .

Brewer v. Williams, U.S.

(1977), 51 L.Ed.2a 424.7. .

Brinegar v. United States, 338

U.S. 160 (1949) ...+.e 12,

Brown v. State, 565 P.2d 697

(Okla. Cr. App. 1977) ....

Camara v. Municipal Court, 387

U.S. 523 (1967) ....2..e.. 14,

viii ix

Page

Chambers v. Maroney, 399 U.S. Page

ess + + es 6 & Se ee King v. United States, 282

F.2d 398 (4th Cir. saad

Chimel v. California, 395 U.S. ( Cir. 1960) 35

Tee GOOG lw ttle tl thle) aa McCray v. Illinois, 386 U.S.

390 (1967) _ . o _ >. oO oO >. . 8, 27

Dumbra v. United States, 268

o.8. 438 (1925) « «© «© ees 17 Mapp v. Ohio, 367 U.S. 643

ES Sg a a ee

Elkins v. United States, 364 5S, 14

U.S. 206 (1960) . . « « « » 25 North Carolina v. Wrenn, 417

C8. Gee Gabvane « ¢ 0 *& € 4 36

Feldman v. United States, 322

0.8. 467 (1944) «2. «© © © « 14 O'Bean v. State, 184 So. 2d 635

Gee. Ber oe eee ee 4 38

Gerstein v. Puch, 420 U.S.

103 (1975) ce ccreereee 16 Olmstead v. United States, 277

; 0.8. G66 (A5SG) we a ace « ee

Hill v. California, 401 U.S.

707 @iGvar ce ce eeeaeee 18 Petillo, United States ex rel.

Vv. New Jerse 400 F. .

Johnson v. United States, 333 (D.N.J. 1975). bens Mary

U.S. 10, 13-14 (1948) ... 14, 17 275 (3rd Cir. 1576), reinstated

418 F. Supp. 686 (1976). mk 1)

Jones v. United States, 6 Crim. PP ( by. 26, , 36

L. Rptr. 2124 (D.C. Cir. Phenix v. State, 488 S.W.2d 759

1964), rev'd on rehearing (Tex. Cr. App. 1973) .... 40

435 F.2d 385 (D.C. Cir. 1970) 32

Robinson v. Kentucky, No.

Katz v. United States, 389 U.S. 77-362, cert. denied Oct.

347 (1967) . . . . . . . 7 14 1977, 46 U.S.L.W. 3286 7 Ps ll

South Dakota v. Opperman, 428

C.S. 364 (1976) ...e -« 14, 15

Page

State v. Luciow, 740 N.W.2d

833 (Minn. 1976) ...+-«s -» 38

State v. Sanders, 222 Kan.

189, 563 P.2d 461 (1977) . . 39

State v. Spero, 371 A.2d 1155 -

(N.H. 1977) . . . . . . . . 30,

State v. Williams, 169 Conn. 322,

363 A.2da 72 (1975) . -~ « « « 41

Stone v. Powell, 428 U.S. 465

(1976) . ._ *« ._ « * 5, 8, 12, 25

Terry v. Ohio, 392 U.S. l

(1968) _« ° ° 2 . . . . . . . 2, 28

United States v. Armocida, 515

F.2d 29 (3rd Cir. 1975), cert.

denied, 423 U.S. 858 (1975). 36

United States v. Belculfine,

508 F.2d 58 (lst Cir. 1974) 35, 43

United States v. Carmichael,

489 F.2d 983 (7th Cir. 1973)

(en banc) ..- eee. 11, 35, 43

United States v. Chadwick,

U.S. , 53 L.Ed.2d 538

. ,. ae PS See ees

Page

United States v. Damitz, 495

P.24 SO (Sth Cir. 1974) ... 35

United States v. Gonzalez, 488

Pean.Gar Cae Gab. 39ral-« «6 « 35

United States v. Dunnings, 425

F.2d 836 (2d Cir. 1969) ... 28

United States v. Halsey, 257

F. Supp. 1002 (S.D.N.Y. 1966)36, 43

United States v. Harwood, 470

F.2d 322 (10th Cir. 1972) . .30, 35

United States v. Lefkowitz,

aus U.B. GOS Ci9Sa) « « o « 18

United States v. Luna, 525 F.2d

4 (6th Cir. 1975), cert. denied,

424 U.S. 965 (1976) ... .e 35

United States v. Marihart, 492

F.2d 897 (8th Cir. 1974), cert.

Genied, 419 U.S. 827 (1974) 35

United States v. Murray, 429

F.2d 178 (9th Cir. 1973)... 20

United States v. Old Dominion

Warehouse, 10 F.2d 736 (2d

Saas Bee « & ot & S &@ 6 6 a 15

xii

United States v. Ortiz, 422

FF 891 (1975) _ . > . . . .

United States v. Pond, 523

F.2d 210 (2d Cir. 1975), cert.

denied, 423 U.S. 1058 (1976)

United States v. Ramsey, U.S.

, 52 L.Ed.2d 617 (1977). .

United States v. Thomas, 489

F.2d 664 (5th Cir. 1973),

cert. denied, 423 U.S. 844

wae oC a 's:6 & s\6 # e-@. eee

United States v. Thornton,

454 F.2d 957 (D.C. Cir.

1971) oo © o . o 7: — . — .

United States v. United States

District Court, 407 U.S. 297

(1972) . 7 . ° 7 . . » 7 °

United States v. Upshaw, 448 F.2d

1218 (5th Cir. 1971) ...

Warden v. Hayden, 387 U.S.

eee CA0GT) ceo eces ees

Weeks v. Estelle, 509 F.2d

766 (Sth Cis. 1975) .« 2 c

——— TS Sn A

xiii

Page

Weeks v. United States, 232

0.8. 383 (1914) . . 7 . ° 2 . 45

Whitely v. Warden, 401 U.S.

S6@ (i971) .« « «© © 0 © 6.0 sane OO

Wrenn v. North Carolina, 486 F.2d

1399 (4th Cir. 1960), cert.

denied, 417 U.S. 973

TI3574) ° x 2-8 . ._ «© «# *# @ 35, 36

Constitutional Provision

United States Constitution,

Fourth Amendment... passim

Miscellaneous

American Law Institute, Model

Code of Pre-Arraignment Pro-

cedure, SS § 290.3 (1975)30, 31, 43

Herman, "Warrants for Arrest or

Search: Impeaching the

Allegations of a Facially

Sufficient Affidavit," 36 Ohio

SG. beable Van Caerer « «es

9, 11, 16, 24, 33, 43, 46

xiv IN TEE

SUPREME COURT OF THE UNITED STATES

Page October Term, 1977

Kipperman, "Inaccurate Search

Warrants as a Ground for No. 77-5176

Suppressing Evidence," 84

Harv. L. Rev. 824 (1971) .. - 36

Miller and Tiffany, "Prose-

cutor Dominance of the

Warrant Decision," 1964 JEROME FRANKS,

Wash. U.L.Q. 1 (1964) ... - 32

Petitioners,

Shaefer, "The Fourteenth

Amendment and Sanctity Vv.

of the Person," 64 N.W.U.L.

Rev. 1 (1969) . 2. ee cere 44 | THE STATE OF DELAWARE,

Schrock and Welsh, "Up from | Respondent.

Calandra: The Exclusionary

Rule as a Constitutional

Requirement, 59 Minn. L. Rev.

251 (1974) *eeee* # #® # @ 46 } ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF DELAWARE

Wright, "Must the Criminal Be !

Free if the Constable Blunders?,”

50 Tex. L. Rev. 736 (1972) . 25, 26

BRIEF FOR THE

AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

Comment, "Challenges to the

Veracity of Facially Sufficient

Warrants-Is the Truth Relevant?,"

7 Seton Hall L. Rev. 827

(1976) stars eves 6 Oe eee oe

Interest of Amicus

The American Civil Liberties Union

is a nationwide, nonpartisan organiza-

tion of over two hundred and fifty

thousand members, dedicated to defending

the principles embodied in the Bill of

Rights to the Constitution.

Central among the protections of

the Bill of Rights are the safeguards

of privacy set forth in the Fourth

Amendment.

In recent years, there have been

substantial pressures to weaken the pro-

tections of the Fourth Amendment. The

ACLU has repeatedly urged the Court to

resist the "hydraulic pressures” Justice

Douglas warned »gainst in Terry v. Ohio,

392 U.S. 1, 39 (1968), pressures created

largely by a perceived overemphasis on

the "blunders of constables." This case,

however, concerns not mere blunders but

a deliberate, flagrant, and material

misrepresentation in a sworn police af-

fidavit requesting a search warrant.

The right of all Americans "to be secure

in their persons, houses, papers and

effects" requires a rejection of this

latest attack on the constitutional

requirement that searches be conducted

only on probable cause.

Statement of the Case

This case involves a trial court's

refusal to allow a defendant at a

state-created suppression hearing an

Opportunity (let alone a full and Fair

Opportunity) to demonstrate that a

facially sufficient affidavit submitted to

a magistrate in support of a search

warrant was intentionally and materially

inaccurate, and that the portions of

the affidavit that would remain after

excising the intentional and material

misrepresentations would not establish

probable cause.

The Delaware Supreme Court af-

firmed, reasoning (1) that no need had

been demonstrated for interfering with

the magistrate's role in determining

the reliability and credibility of ©

affidavits, and (2) that the suppression

hearing ought not be turned into an

adjudication of guilt or innocence.

Question Presented

Whether the trial court erred in

refusing to hear testimony at a sup-

pression hearing which would have shown

that material allegations in an affi-

davit made in support of a search

warrant were intentional misstatements.

Summary of Argument

The defendant offered to prove that

the search warrant authorizing an inva-

sion of his privacy issued on the

strength of an affidavit containing

deliberate, intentional and material

misstatements of fact. Accordingly, in

resolving this case, the Court need not

determine the consequences of innocent,

negligent, or even reckless misstate-

ments in probable cause affidavits, or

the merits of applying the exclusionary

rule when police have acted mistakenly,

but in good faith.

The search in this case was unrea~

sonable, and in violation of the Fourth

Amendment, unlers the warrant author-

izing the search met the constitutional

standard of probable cause. Although

the facts on which a search warrant

issues need not be accurate, the

affiant must have probable cause, de-

fined usually as "a reasonable ground

for belief," to believe that they are

accurate. Assuming the proffered

testimony to be true, the affiants

intentionally misstated facts to secure

a warrart and therefore could not have

had a reasonable belief in the truth

of the facts asserted. The search was

therefore conducted without probable

A ET i a al

cause, in violation of the Fourth

Amendment.

A magistrate's ex parte deter-

mination that the facts alleged in an

affidavit constitute probable cause for

a search warrant cannot insulate those

factual allegations from subsequent

review.

Delaware's refusal to allow the

defendant to establish that evidence

to be used against him at trial was

seized in violation of the Fourth

Amendment is inconsistent with Ma

v. Ohio, 367 U.S. 643 (1961) and Stone

vV. Powell, 428 U.S. 465 (1976). Set-

tled Fourth Amendment law permits

defendants to challenge the existence

of probable cause for a warrantless

search, or to challenge the execution

of the search as violative of the

warrant's provisions. None of the

arguments commonly advanced against

permitting sub-facial attacks on prob-

able cause affidavits has merit, or

justifies treating defendants who offer

to prove that police-affiants inten-

tionally misstated facts differently

from defendants advancing other Fourth

Amendment claims. No pn Paap of

law enforcement, or considerations of

efficiency, require the immunization

of deliberate misstatements in probable

cause affidavits from impeachment. The

magistrate's ex parte assessment of

credibility and reliability should be

no more conclusive than his ex parte

determination of reasonableness.

The arguments for permitting

sub-facial attacks are so compelling

that all eleven federal courts of

appeal and, contrary to widespreac

belief, most state courts reaching the

question permit such challenges in the

circumstances alleged here.

Enforcement of the Fourth Amendment

requires that defendants be permitted

to establish intentional Fourth Amend-

ment violations, and that evidence used

against them in violation of the Fourth

Amendment be e: cluded from their

trials.

ARGUMENT

THE FOURTH AMENDMENT REQUIRES THAT

DEFENDANTS BE AFPORDED AN OPPOR-

TUNITY TO IMPEACH INTENTIONAL AND

MATERIAL MISREPRESENTATION IN SEARCH

WARRANT AFFIDAVITS.

Introduction

Assuming, as we must, the truth

of the testimony proferred but not

received at the suppression hearing

Delaware's law enforcement officers’

clearly violated the defendant's Fourth

Amendment rights.l Police officers

established probable cause for a search

warrant only by deliberately falsifying

affidavits. The framers of the Fourth

a ee whe requirecé that warrants

supported by sworn affidavits, did

not intend to authorize invasions of

personal privacy on th j

sworn affidavits. eee hee reree

Delaware's attempt to shad j

category of Pourth ee Padre Shekietee

from the disinfecting light of judicial

review is particularly disturbing

because this case does not raise the

17 The Delaware Supreme Court, like

Other courts which refuse defendants

an opportunity to impeach false search

warrant affidavits, did not dispute

that petitioner's Fourth Amendment

—_— may have been violated; it simply

eclined to permit the violation to be

established, or remedied, in the course

of criminal proceedings.

difficult issues of Fourth Amendment

remedies that have seriously divided

the Court in recent years. Before

turning to our arguments on the merits,

we think it important to emphasize four

issues this case does not raise, and

which the Court need not resolve:

First, this case does not concern

innocent errors of policemen unschooled

in the intricacies of Fourth Amendment

law, and it therefore provides no

occasion to renew the troubled debate

over application of the exclusionary

rule when police officers have acted

"mistakenly, but in good faith and on

reasonable grounds." Stone v. Powell,

428 U.S. 465, 540 (1976) (White, J.,

dissenting).

Second, this case does not require

examination of the deterrent value of

the exclusionary rule on collateral

review.

Third, this case raises no ques-

tions concerning the government's

privilege to withhold the identities of

informers, McCray v. Illinois, 386 U.S.

390 (1967), or the Fo dment

consequences of the negligent or even

knowing use by law enforcement personnel

of misrepresentations by informers to

MMe

establish probable cause.2/

Finally, because the defendant

offered to prove that the police affi-

davit contained deliberate, intentional,

and material misrepresentations,3/ the

Court need not decide the Fourth —

27 Although the issue need not be re-

solved in this case, we note that prob-

lems relating to impeaching informer's

statements are discussed in Herman,

"Warrants for Arrest or Search: Inm-

peaching the Allegations of a Facially

Sufficient Affidavit,” 36 Ohio St. L.J.

721, 742-46 (1975) (here. fter cited as

Herman).

3/ The trial court refused to permit

petitioner's witnesses to state on the

record what the substance of their

testimony would be. See Appendix at

25-26. This Court must therefore

rely on counsel's offer of proof. That

offer plainly stated that the defendant

would prove that the police deliber-

ately and intentionally made false and

material allegations in the affidavit

in support of the search warrant. The

materiality of the allegations in

question has never been disputed by the

state. The offer of proof is stated

various ways, Appendix at 15, 16, 22-

26. The substance of the offer is best

summarized as follows:

Mr.

Finocchiaro:

Your Honor, I intenc to

produce Mr. Wesley Lucas

of the Delaware Youth Center,

whe I believe will give infor-

mation that will intend [sic]

to impeach the information

contained in the affidavit,

not only as to its accuracy

but to the fact it was never

given and as such there may

have been a rather material

misrepresentation made by

either one or both of the

affiants contained in the

search warrant. In addition,

I would like to call Officer

McClements to the stand.

The Court: That would be of

what paragraph? Paragraph 15?

Mr. Finocchiaro: Yes. Paragraphs

15, 16 and 17.

The Court: And what they would

testify to would rebut what is

in Paragraph 15, 16 and 17?

. Finocchiaro: Would rebut not

only certain factual matters

but also as to whether or

not it was given and to whom

it was given... .-

Appendix at 16.

ee ee ee eed

Amendment implications of innocent,

negligent, or even reckless misstate-

ments.4/ The issue presented to the

47 See, @.g., Robinson v. Kentuck

M1362, SOEs denied, Oct. 31, ‘ et

8. , 46 U.S.L.W. 3286 (lettin

stand ruling that inadvertent mis-

statements can establish probable cause).

The circuit courts have split on the

culpability required for suppressior..

Compare, e.g., United States v.

Carmichael, 489 F.2d S83 (7th Cir. 1973)

(en banc) (invalidating only intentional

and reckless misstatements, where

material) with United States v. Thomas,

489 F.2d 664 (5th Cir. 1573), cert.

Genied, 423 U.S. 844 (1975) (leaving

Open the possibility that material necli-

gent misstatements would invalidate

——— The — is canvassed in

, Supra n.2 at 746-50. Bec

the petitioner offered to prove that.

the affidavit contained material, in-

tentional misstatements, and because

a concrete factual setting is especially

important to analyze the Fourth Amend-

ment implications of sworn allegations

where the affiant's belief in their

truth is not reasonable, we urge the

— to decide only the narrow issue

ere presented. We note, how

similarity of the fests waahenks

Court is a narrow one, involving an

extremely serious claim that the police

deliberately submitted false affidavits.

This case thus presents the paragid-

matic situation of officials whose

intentional misconduct violates the

constitutional rights of defendants,

and the integrity of the courts. The

sharpest critics of the exclusionary

rule have indicated they would preserve

it for just such deliberate and fla-

grant violations of settled Fourth

Amendment rights. See, e.g., Brewer

v. Williams, U.S. 977), DL

f.Ed.2a 424, 450 (Burger, J., dis-

senting); Stone v. Powell, 428 U.S. at

538 (White, J., dissenting). All

reasonableness standard with the "rea-

sonable man" negligence standard of the

law of torts, suggesting that state-

ments negligently made - that is, made

without a reasonable degree of care ~-

cannot amount to probable cause, which

implies a “reasonable ground for be-

lief." See, Brinegar v. United States,

338 U.S. 160, 175 11545) ‘Throughout

this brief, unless otherwise indicated,

we will interchangeably use "“misrepre-

sentations” and "misstatements" in

the meaning this case presents -

statements which are intentionally and

deliberately falsely sworn.

eleven federal courts of appeal, and,

contrary to widespread belief, most

state courts considering the question,

are agreed that, in the circumstances

alleged below, sub-facial attacks on

the veracity of search warrants must be

permitted.5 Immunization of falsely

Swern probable cause affidavits from

impeachment at or prior to trial would

remove a critical deterrent to official

falsehood, would nullify the Fourth

Amendment's requirement that warrants

issue only on probable cause, and would

destroy a significant portion of the

right of privacy the Fourth Amendment

was designed to secure.

A. A Search Pursuant to a Warrant

Based on Intentional and Material

srepresentations is a Searc thout Probable

<< in Violation of the Fourth

n t.

The Fourth Amendment ccntains both

a guarantee of individual privacy

against unreasonable searches and

57 See infra nn. 22-27,

seizures,6/ and a mechanism to imple-

ment that “guarantee. It is now "axiom-

atic" that the warrant recuirement,

designed to insure that invasions of

privacy are undertaken only on the

constitutionally required showing of

probable cause, is critical to the

protection of individual privacy.7/

This Court has consistently recognized

that the essence of the protection af-

forded by the Fourth Amendment lies in

the determination by a disinterested

magistrate that probable cause exists.

ABO v. United States, 322 U.S.

87, 489-90 (1044); see also

Ohio, 367 U.S. 643, 655, 657 CISEDy;

Olmstead v. United States, 277 U.S. 438,

478 (1928) (Brandeis, J., dissenting).

x4 Almeida-Sanchez v. United States,

3 U.S. 266, 277 (1975) (powell, J.,

concurring).

of E.g., United States v. United States

istrict Court,

Katz 7 United states, 389 U.S. 347.

(1967); Camara v. Municipal Court, 387

U.S. 528-29 (1567); Johnson v. United

States, 333 U.S. 10, 13-14 (1948).

South Dakota v. rman, 328 U.S. 364

(1576), ana Unites States v. Ramsey,

The probable cause requirement

embodies the constitutional judgment

that searches are reasonable only

when the law enforcement officer has

a reasonable belief that items seizable

by virtue of connection with criminal

activity will be in the place to be

searched-9/ The probable cause require-

ment, together with the Fourth Amend-

ment's command of particularity and

its warrant requirement, protect the

privacy of innocent persons, and the

privacy of arguably guilty persons in

matters unrelated to crimes for which

U.S. (1977), 52 L.Ed.2d 617

(1977) are not to the contrary. In

both those cases, the Court justified

warrantless searches on less than

probable cause because the searches

were in non-criminal contexts and were

‘unrelated to the criminal investigative-

enforcement process." See, e.g.,

South Dakota v. rman, 42 -S. at

n.5. s Cour ecisions uni-

formly hold that a search in the cir-

cumstances of this case is unconsti-

tutional unless based on probable cause.

9 United States v. Old Dominion

arehouse, 10 F.2d 736 (2d Cir. 1926)

(Hand, J.).

the police have probable cause to

search .10 Chimel v. California, 395

U.S., 752, 767 n-i2 (1969).

The constitutional judgment that

searches are permissable only on

"probable cause" does not brand searches

as unreasonable whenever facts relief

on by the officer or by the magistrate

turn cut on later examination to be

incorrect:

Because many situations

which confront officers in

the course of executing their

duties are more or less am-

biguous, room must be allowed

for some mistakes on their

part. But the mistakes must

be those of reasonable men,

acting on facts leading sen-

sibly to their conclusions

of probability.

Brinegar v. United States, 338 U.S. 160,

an 7 (1945). See also, Gerstein v.

Pugh, 420 U.S. 103, 112 (\ 575).

107 See Herman, supra n.2, at 742-46.

Nonetheless, under the probable

cause standard, which the Court has

described as a “minimum requirement ,"11lj,

warrant cannot issue unless a law en-

forcement officer has a reasonable

belief that the facts warrant a searchl2/

and, lacking exigent circumstances, s

mits the facts on which he relies for

objective determination by a disinter-

ested magistrate. Johnson v. United

II7 “The Court has insisted upon prob-

able cause as a minimum requirement for

a reasonable search permitted by the

Constitution." Chambers v. Maroney,

399 U.S. 42, 51 (1970). See also,

United States v. Ortiz, 422 U.S. 891,

B56 (1975); Aime ida-Sanchez Vv. oe

States, 413 U.S. 266,

Camara v. Municipal Court, 387 U.S. 523,

538 (1567)

12/ In Dumbra v. United States, 268 U.S.

(1925), the Court Indicated that an

affiant must himself have a reasonable

belief in the truth of the facts as-

serted in the probable cause affidavit:

In determining what is probable

cause, we are not called upon

to determine whether the offense

charged has in fact been com-

mitted. We are concerned onl

with the question whether the

affian

reasonable grounds

States, 333 U.S. 10, 14 (1948); United

States v. Lefkowitz, 285 U.S. 452 (1932).

Kecordingly, although an officer's good

faith belief that probable cause exists

may be a factor in determining whether

he can be held liable in damages for a

search conducted without probable cause

(e.g., Bivens v. Six Unknown Named

tess s, 456 F.2d 1339, 1347-48 (2d Cir.

, on remand from 403 U.S. 388

(1971)) an officer's (or magistrate's)

good faith belief that probable cause

existed cannot justify a search where

probable cause did not in fact exist.

Hill v. California, 401 U.S. 797, 804

. instead, the Court has con-

sistently held that evidence seized

in the course of searches for which

probable cause has not been properly

established must be suppressed, both

when the magistrate wrongly assessed

the sufficiency of the affidavits pre-

sented, Aquilar v. Texas, 378 U.S. 108

(1964), when a warrantless arrest

or search lacked the necessary probable

at the time of his affidavit

and the issuance of the war-

rant for the belief that the

law was being violated on

the premises to be searched.

268 U.S. at 441 (emphasis added).

cause, Whitely v. Warden, 401 U.S. 560

566-69 TIOTI)- .

Thus, in Whitely v. Warden, a

magistrate issued an arrest warrant on

the strength of a facially insufficient

affidavit. Upon hearing a bulletin

announcing issuance of the warrant, an

officer arreste¢ the defendant, searched

him and found incriminating items.

After this Court held that the arrest

warrant was facially insufficient, and

that the search incident to that arrest

- was therefore invalid, it rejected as

well the state's argument that the

search was a reasonable warrantless

search because the arresting officer

acted reasonably, and therefore con-

stitutionally, in relying on the radio

bulletin:

Certainly police officers called

upon to aid other officers in

executing arrest warrants are

entitled to assume that the

officers requesting aid offered

the magistrate the information

requisite to support an inde-

pendent judicial assessment of

probable cause. Where, how-

ever, the contrary turns out

to be true, an otherwise illegal

arrest cannot be insulated from

challenge by the decision of

the instigating officer to rely

on fellow officers to make the

arrest.13/

401 U.S. at 568.

Similarly, lower courts have consistently

read Whitely to require probable cause,

not simply an officer's reasonable be-

lief that probable cause exists, to

ustify a warrantiess search under

zaigenk circumstances.14/

ently, the Court's holding on

L. a cae wianianen. None of the

dissenters in Whitely argued that an

arrest lacking ereEabie cause could be

found constitutional because of the

reasonableness of reliance on a warrant

based on an insufficient affidavit;

Justice Black's dissent contended in-

stead that the arresting officer had

probable cause to arrest, independent

of the warrant which Justice Black as-

sumed, arguendo, to be invalid.

14 E.g., Weeks v. Estelle, 509 F.2d

726 ( Cir. 107°); United States v.

Murray, 492 F.2d 178, 188 (Sth Cir.

The Court's approach in Whitel

is precisely the approach required by

the Fourth Amendment in this case:

Certainly [a magistrate is]

entitled to assume that the

officers requesting aid of-

fered [him] the information

requisite to support an inde-

pendent judicial assessment

of probable cause. Where,

however, the contrary turns

out to be true, an otherwise

illegal [search] cannot be

insulated from challenge by

the decision of the [magistrate]

to rely on [information supplied

by the officers].

It is settled that a magistrate's

unreasonable inference drawn from facts

which officers reasonably believe can-

not justify a search when those facts

do not establish probable cause; yet

Delaware here urges that a magistrate's

reasonable inference from facts which

officers do not reasonably believe

should somehow suffice. This result is

entirely inconsistent with the Fourth

Amendment. As a leading commentator

has written:

It is true that, of the

various functionaries who

participate in the probable-

cause and warrant-issuing

processes, the magistrate is

supposed to play a unique role.

The assumption underlying the

warrant clause of the fourth

amendment is that innocent

privacy will be jeopardized

if the probable-cause process

(the very core of the fourth

amendment) is entrusted solely

to law enforcement officers

who, ". . . in the often com-

petitive enterprise of fer-

reting out crime," are likely

to draw every inference and

resolve every doubt in favor

of taking intrusive action.

To safeguard innocent privacy,

we therefore insist that a

"neutral and detached” magis-

trate draw the inferences and

resolve the doubts. But the

importance of this function

should not blind us to the

fact that it is only a part

of the probable-cause process,

and the final part, at that.

The antecedent parts are the

acquisition and transmission

of the very information that

the magistrate must evaluate.

These parts cannot feasibly

be administered by the magis-

trate and must therefore be

entrusted to law enforcement

officers. That we assign

different parts of the pro-

bable-cause process to dif-

ferent functionaries is hardly

reason for viewing either the

parts or the functionaries in

isolation. It does not tri-

vialize the magistrate's in-

ference-drawing task to say

that it is no more important

than the officer's task of

acquiring information and

transmitting it to the magis-

trate. Indeed, it makes ut-

terly no sense to ask only

whether the magistrate drew a

reasonable inference without

asking whether the information

from which he drew the infer-

ence was acquired carelessly

or transmitted inaccurately.

Probable cause and its pro-

cess are a whole. If any part

is defective, if any function-

ary performs improperly, the

whole fails, thereby increasing

the risk of invading privacy

and subverting the fourth

amendment's primary value.

When a court is concerned

only with whether the magis-

trate had probable cause (that

is, whether the magistrate

properly performed his role),

it indicates either that it

does not understand the multi-

faceted nature of probable

cause and its process or that

it does not understand that

each part is as important as

any other. Sub-facial attacks

are intended to expose the

malfunctioning of the law-

enforcemen* part, but no less

to assert the total failure

of probable cause and the

consequent risk to innocent

privacy. ‘hen a court pro-

hibits sub-facial attacks by

dropping an iron curtain be-

tween magistrate and affiant,

it fragments the process to

such an extent that the sum

of the parts no longer equals

the whole. To the same extent

it diminishes the protection

that innocent privacy is con-

stitutionally entitled to

receive.

Herman, supra n.2, at 739-40 (footnotes

omitted).

B. Sub-facial Challenges Allegin

Intentional Misstatement Shou

Permitted.

Just two years ago, seven members

of this Court agreed that the Fourth

Amendment requires "implementation of

the exclusionary rule at trial and its

— See

enforcement on direct appeal of state-

re wr wo Stone v. Powell,

-S. 465 (1976) .157 Even the two

Justices who would have abolished the

exclusionary rule where "the evidence

at issue was seized by an officer

acting in the good faith belief that

his conduct comported with existing law

and having reasonable grounds for this

belief" noted that it should be en-

forced in cases, such as this case,

where the police acted without a rea-

sonable, good-faith belief that their

actions were permissable. Stone v.

Powell, 428 U.S. at 538 (White, J.,

dissenting); Id., at 501-502 (Burger,

J., concurring) .16/

4 The exclusionary rule was applied

— in United States v. Chadwick,

. . id 7 L.Ed.2a 535 (1577).

i6/ This distinction, which rests on

such cases as Elkins v. United States,

364 U.S. 206 ( -

Vv. ed

States, 277 U.S. 438 (Brandeis ana

Holmes, JJ., dissenting), has been

justified by Professor Wright as follows:

It is demeaning to the Courts

and to the legal system if

convictions can rest on blatant

disregard by the police of the

constitutional rights of our

people.

Delaware's refusal to allow testi-

mony at the suppression hearing which

would have established that the affi-

davits contained intentional and

material misstatements was inconsistent

wtih Stone, which held that states are

required to determine whether evidence

to be used at trial was seized in

violation of the Fourth Amendment.

United States ex rel. Petillo v. New

Jersey, 418 F. Supp. 666 (D.N.J. 1976).

As we shall now demonstrate, none

of the commonly advanced arguments

against permitting sub-facial challenges

has merit. There is no principled

justification for treating the violation

of petitioner's Fourth Amendment rights

differently from other search and

seizure challenges, all of which can be

considered at trial and on direct review.

l. There are noc llin

reasons for prohibiting sub-facial

challenges.

a. The importance of the violation.

Wright, "Must the Criminal Be Free if

the Constable Blunders?," 50 Tex. L.

Rev. 736, 744 (1972).

First, petitioner's claim is at

least as threatening to Fourth Amend-

ment values as are other claims which

settled law requires courts to hear.

It is instructive to compare the

defendant's situation under the rule

adopted by the Delaware Supreme Court

with that of three hypothetical cefen-

dants. Defendant A moves to suppress

evidence seized in a warrantless search

which police claim was incident to a

lawful, but warrantless, arrest.17

Defendant B moves to suppress ev ce

which police claim was seized in hot

pursuit.18/ Defendant C moves to

suppress evidence seized pursuant to a

valid warrant on the ground that the

evidence was seized upstairs (which the

police deny) and the warrant only

authorized a downstairs search. Defen-

dants A, B, and C are entitled to

present witnesses at a suppression

hearing to prove that the facts were

not as the police asserted. But under

the decision below, petitioner could

not present witnesses to prove that

the facts were not as the police al-

leged, even though the police had

+ ay v. Illinois, 386 U.S.

io at) ee nois

18 Cf., Warden v. Hayden, 387 U.S.

4 (1589). —

28 29

misrepresentations. States are already

under an obligation to hear Fourth

Amendment claims, which often require

witnesses. These claims are currently

resolved at suppression hearings, or at

trial, as a matter of course. Accord-

Fourth Amendment] are not accomplished ingly, permitting sub-facial challenge

if the judicial officer is put upon by to allegedly intentional police mis-

1] D

“as Poa bas, panes Sees 5? enas statements would not require the creation

Surely intentional misstatements that of a new judicial mechanism, would not

unduly strain judicial resources, and

are used to perpetuate a fraud upon the wale nek create new rules that might

courts are a greater threat to Fourth confuse or complicate law enforcement

Amendment values than the police con- efforts

duct at issue in hypotheticals A, B, ‘

and C. It follows that the conduct at

issue in this case must be subject

to at least the same degree of judicial

review as is presently available in

hypotheticals A, B, and C.

falsely and intentionally sworn to

those facts before a magistrate, and

had thereby abused and corrupted the

judicial process. As Judge Friendly

has observed, "the objectives [of the

ee ee

c. The magistrate's function.

Requiring trial courts to afford

defendants an opportunity to challenge

search warrant affidavits would not

interfere with or demean the magis-

hos se nao ae the court

ow mention n passing that a

No exigencies of law enforcement, magistrate's function includes weighing

or meaningful considerations of effi- the credibilit

y and reliability of

ciency, require the immunization of search warrant affidavits, it did not

false probable-cause affidavits. This rule, as a matter of state or federal

is not a case, like Terry v. Ohio, 392 1

: aw, that a magistrate is required to

399 'U.8. 42 (1970 aheee ve earoney, conduct an independent investigation

rf ta , where compelling of the truth or falsity of factual

aw ay aged = justify striking allegations in the affidavits. And

Y Bene aoe of Fourth Amendment there is no indication in the recora

easonabieness." The only practical of this case that such an investigation

effect which sub-facial challenges to was, in fact, conducted. To the

false affidavits can have on police

behavior is to deter intentional contrary, no witnesses were called or

b. Exigencies of law enforcement.

examined, no transcript was made, and

the warrant issued almost immediately.

Furthermore, even if there had been

some investigation, it is impossible

fully to assess credibility and reli-

ability in an ex parte hearing.19/

I37 The experience of other courts

strongly suggests that falsified war-

rants frequently slip past magistrates.

See, e.g., United States v. Harwood, 470

F.2d , 324- ir.

eee er States v. Upshaw, 448 F. 24. 1218

T5th Cir. 1571), cert. denied, 405 U.S.

934 (1972); United States ex rel.

Petillo v. New Jersey, 400 F. Supp. 1152

(D.N.Jg. 1975), vacated, 541 F.2d 275,

reinstated, 418 F. Supp. 686 (1976);

State v. Spero, 371 A.2d 1155 (N.H.

1577). For this reason, the American

Law Institute recommends that challenges

to the veracity of probable cause af-

fidavits should be permitted:

The reasou is that the pro-

ceeding before the issuing

magistrate is ex varte; the

record made before bim is

not of the same probative

value as the record of a trial,

and is therefore not en-

titled to be treated like a

record on appeal. To put

the matter another way, what

is 'right' for an issuing

magistrate to do on the

basis of an ex parte record

may not be what is right

for the court to do on the

basis of an adversary pro-

ceeding on motion to sup-

press. To conclude other-

wise, and immunize the war-

rant fair on its face from

factual challenge, would be

to preserve pro tanto the

ex parte character of the

proceeding on issuance.

ALI, Model Code of Pre-Arraignment

Procedure, Part II - Commentary, Ss §

290.3 at 570 (1975). The relevant

statutory provirion is Part II-Statute,

SS § 290.3. As this Court stated in

Alderman v. United States, 394 U.S. 165,

183-84: “Adversary proceedings will

not magically eliminate all error, but

they will substantially reduce its

incidence by guarding against the

possibility that the trial judge,

through lack of time or unfamiliarity

» « « Will be unable to provide the

scrutiny which the Fourth Amendment

exclusionary rule demands."

The basic point, however, is that

ordinarily the ex parte review by the

magistrate does not involve a hearing.

Because of the need for speed, most

warrants issue almost immediately,

as a matter of course.20/

Furthermore, even if a magistrate

has conducted an ex parte review or

hearing, permitting a subsequent plenary

review is not at all unseemly or un-

necessary.21/

207 One important function of probable

cause affidavits may be to establish and

"freeze" a record upon which the exist-

ence of probable cause can later be

decided at an adversary hearing. Jones

v. United States, 6 Crim. L. Rptr.

(D.C. Cir. 1964), rev'd on rehearing on

other grounds sub nom. Dorman V.

States, 435 F.2d 305 (D.D. cir. L970)

(Leventhal, J.); Miller and Tiffany,

"Prosecutor Dominance of the Warrant

Decision,” 1964 Wash. U.L.Q. 1, 13

(1964).

21/ An issuing magistrate seldom

inquires into the truth of a

facially sufficient affidavit.

Consequently it is inaccurate

to treat a sub-facial attack

at a suppression hearing ‘#a

review of the issuing magis-

trate’s decision. Rather, it

is an inquiry of first in-

stance. Finally, the defendant

is permitted, at a suppression

hearing, to attack the facial

sufficiency of the affidavit

even though the issuing magis-

trate has already resolved that

issue. If the suppression

judge agrees with the defendant,

he is saying that the magistrate

erred on a matter of law in

issuing the warrant -- that is,

that he stupidly or unreasonabl

issued it. Can it be more =

seemly if the suppression judge

holds that the magistrate was

deceived by a facially suffi-

cient, but untrue, affidavit?

Herman, supra n.2, at 721, 724-25 (1975).

As for the aware Supreme Court's

contention that the falsity of affi-

davits properly belongs to trial on the

merits because "neither the probable

cause nor suppression hearings are

adjudications of guilt or innocence,"

with all respect we are at a loss to

understand what this means. See

Herman, supra n.2, at 725, text accom-

panying notes 23-24. Although the

veracity of the search warrant affi-

davits may conceivably be relevant at

trial for the purpose of undermining

the credibility of the affiant, if he

ad. The experience of other

“jurisdictions.

Most courts faced with this issue

- have recognized that compelling Fourth

Amendment considerations require that

defendant be permitted to challenge

search warrant affidavits. In a rare

display of unanimity, each of the

testifies, it has a wholly different

and crucial relevance at the probable

cause or suppression hearing: namely,

to negative the existence of probable

cause, thereby resulting in sup-

pression of seized evidence. Although

it is not the function of criminal

proceedings to punish Fourth Amendment

violations, the Fourth Amendment is

designed to restrain police from un-

reasonably invading privacy in their

search for evidence to be used at a

criminal trial.

federal courts of appeal has either

held,22/ or indicated that it would

M4 United States v. Belculfine, 508

.2d 58, 63 (ist Cir. I9574); United

States v. Gonzalez, 488 F.2d 837-36

fe y implication);

United States v. Pond, 523 F.2d 210,

cation), cert. denied, 423 U.S. 1058

(1976); King v. United States, 282

F.2d 398, 180 Fe 60);

Wrenn v. North Carolina, 486 F.2d 1399

Ze mem.), cert. denied,

417 U.S. 973 (1974); United States v.

Thomas, 489 F.2d 664, 669 (5th cir.

, cert. denied, 423 U.S. 844

(1975); United States v. Luna, 525 F.2d

4, 8 (6 r. , cert. denied,

424 U.S. 965 (1976); United States v.

Cir. IS73) (en banc); United States v

Marihart, 492 F.2d 897, BO9- :

Cir.), cert. denied, 419 U.S. 827

(1974); United States v. Damitz, 495

F.2d 50, 54 (Sth Cir. 1974); Unitea

States v. Harwood, 470 F.2d 322-24

r. °

hold when the opportunity arose, 23

that sub-facial challenges to pro le

cause affidavits must be permitted.

And, contrary to widespread belief,24/

a majority of the state courts that

have considered the question either

EY United States V. Armocida, 515 F.2d

40-41 (3d Cir.), cert. denied, 423

U.S. 858 (1975); United States v.

Thornton, 454 F.2d 957 (D.C. Cir. 1971).

Deading district court opinions include

United States ex rel. Petillo v. New

Jersey, 400 F. Supp. 1152 (D.N.J. 1975),

vaca ed, 541 F.2d 275 (3rd Cir. 1976),

reinstated, 418 F. Supp. 686 (1976)

Stern, J.); United States v. Halsey,

257 F. “wg 3 1002 (S.D.N.Y. 1566)

(Frankel, J.).

a, & op orenie Carolina v. renee

Burger, C. >. dissenting), denying cert.

to 486 F.2d 1399 (4th cir, 1973);

Kipperman, "Inaccurate Search Warrants

as a Ground for Suppressing Evidence,"

84 Harv. L. Rev. 824 (1971).

permit such oer payee aA or have

implied, by holding that the necessary

Cases unequivocally holding that

Feeialie sufficient affidavits may be

impeached are collected in Comment,

"Challenges to the Veracity of Facially

Sufficient Warrants--Is the Truth

Relevant?," 7 Seton Hall L. Rev. 827,

843 n.92 (1976) [hereinafter cited as

Comment] as follows:

"McConnell v. SESTes 48 Ala. App. 523,

52/- 328, 332-33 (Crim.

App. 1972); ~ wn rt v. State, 515

P.2d 377, 380 (Alas. 1573); State v.

, 224 N.W.2d 609, 616 (1owe 1574) ;

ate v. Melson, 284 So. 2d 873,

874-75 (La. 15973); Commonwealth v. Hall,

451 Pa. 201, 204, 302 A.2d 342,

(1973); State v. "Sachs, 264 s.c. 541,

556, 216 5S.E.2d 501, 509 (1975); State

v. Manly, 85 Wash. 24 120, 530 P.2a

306, cert. denied, 423 U.S. 855 (1975).”"

As of 1976, four states permitted im-

peachment as a matter of statutory

interpretation, Comment at 843 n.94:

"Theodor v. eperioz Court, 8 Cal. 3d 77,

9 ’ . ’ a Cal. Rptr.

226, 235 (1972) (en banc); le v.

pypinite. 16 N.Y.2a 181, SE SIT HE .24

, 264 N.Y.S.2d 243, 246 (1965);

threshold showing _ yo a hearing

had not been made, that they would per-

mit challenges on proper showings, 2€

State v. Wright, 511 P.2d 1223, 1225-26

h.>s (Ore. L (en banc); State v.

Bankhead, 30 Utah 2d 135, I38, 514 P.2d

800, 802 (1973)."

Amicus has found three more states that

have joined the growing movement toward

permitting sub-facial attacks: O'Bean

Vv. State, 184 So. 2d 635, 638-39 (Miss.

tate v. Luciow, 240 N.W.2d 833,

837 (Minn 1576); State v. Spero, 371

A.2d 1155 (N.H. 1977). The Alabama

Supreme Court hzs let stand the lower

court ruling cited above, 289 Ala. 746,

266 So. 2d 334 (1973).

26/ Cases upholding warrants against

-facial challenges on the ground that

any alleged or demonstrated inaccuracies

were either unintentional, immaterial,

or both, are collected in Comment,

supra n.25, at 843 n.93 as follows:

"State v. Sebari, *°%? Ariz. 553, 555-56,

Sif P.2d 474, 76-77 (1973); Williams v.

State, 232 Ga. 213, 213-14, 205 S.E.2d

B59, 860 (1974); State v. Baca, 84 N.M.

513, 515, 505 P.2d 856, 9858 (1973);

State v. Vance, 25 N.C. App. 92, 94,

A lesser number of states flatly pro-

hibit such challenges, or have older

court decisions which indicate that

such challenges might be vrohibited.27/

212 S.E.2d 249, 250, cert. denied, 287

N.C. 264, 214 S.E.2d 436 (1575); State

v. Dodson, 43 Ohio App. 2d 31, 36, 332

N.E.2a 371, 375 (1974); Scott v. State,

73 Wis. 2d 504, 243 N.W.