# Amicus Brief — Franks v. Delaware > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0813%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1978 - **Citation:** 438 U.S. 154 ## Text 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 —— SS 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 ii 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 vi 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, 17 44 18 12 16 41 17 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 xi 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 35 36 14 30 27 20 ——— 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, j 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: 10 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 Mr 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 11 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 12 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. 13 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, 14 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. 8/ ABO v. United States, 322 U.S. 87, 489-90 (1044); see also Ma 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, 15 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.). 16 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. 17 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 18 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). oe 19 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 20 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. 21 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 22 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 23 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 24 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 25 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. 26 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). 27 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. 30 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 31 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." 32 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- 33 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 34 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. 35 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. ° 36 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). 37 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); 38 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, 39 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. See also State v. Koucoules, 343 A.24 -65 n.3 (Me. 1574)." One more state court has implied that impeachment would be permitted on a proper showing: State v. Sanders, 222 Kan. 189, 563 P.2d 461, 466-67 (1977) (alternate holding). 22/ States which deny opportunity to mpeach facially sufficient warrants are collected in Comment, supra n.25, at 843 n.95 as follows: "Liberto v. State, 248 Ark. 350, 356-57, 451 S.W.2d Fea, 763 (1970) (alternative holding) ; State v. Anon s, 30 Conn. Supp. 211, 215, 305 A. sa Ls. 147 (Super. ct. 1973); People v. Bak, 45 Ill. 24 140, 146, 258 ‘- E.2g 341, 344, cert. denied, 400 U.S. 882 (1970); 40 Caslin v. Commonwealth, 491 S.W.2d 832, S34 (Ky. 1573); Tucker v. State, 244 Md. 488, 499-500, 224 A.Zd Ill, 117-18 (1966), cert. denied, 386 U.S. 1024 (1967); State v. Petillo, 61 N.J. 165, 178-79, 2753 A.2d 649 (1572), cert. denied, 410 U.S. 945 (1973); Gwens v. State, 217 Tenn. 544, 553, 395 S.W.oa 507, 511 (1965). See also State v. English, 71 Mont. 343, 347-%8, 225 Pe. ’ 9 (1924) (dictum). "Additionally, there are a number of state cases that can be interpreted as prohibiting inquiry into the under- lying truth of statements in a search warrant affidavit, but it is not clear whether they specifically involved challenges to the truth of an affiant's statements. It appears that in these cases the defense was objecting to the conclusory nature of the affiant's statements, rather than attempting to ey ~ their underlying truth. See, e. Seager v. State, 200 Ind. 579, =82°- Lea N.E. 274, 275 (1928); State v. Brogioni, 320 Mo. 202, 206-07, (1928); Baker Vv. State, 448 P, (24 282, 283 (Okla. Crim. App. 1968); State v. Se ur, 46 R.I. 257, 258-60, : > (1924) ." See also Phenix v. State, 488 S.W.2d 41 There is therefore widespread judicial recognization that the Fourth Amendment requires states to permit defendants to challenge facially sufficient search warrants. That fact, together with universal approval by commentators, 28 759 (Tex. Cr. App. 1973). Amicus notes that Connecticut and Oklahoma have recently reaffirmed their holdings. State v. Williams, 169 Conn. 322, 363 ° ; Brown v. State, 565 P.2a 697 (Okla. Cr. App. 19577). The breakdown of state jurisdictions considering the issue is therefore as follows: fourteen states permit chal- lenge; eight have implied that they would permit challenge on a proper showing; as few as nine, or as many as thirteen, prohibit sub-facial attacks. Fon E.g., Forkosh, The Constitutional sehr pahen e the Content of avits in Warrants issued Under the woe St T1573); Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search War- rants and ehe Possibility of belice. Perjury, 1971 U. Til. CF 405; Herman, Warrants for Arrest or Search: Im- peaching the Allegations of a Facially 42 Sufficient Affidavit, 36 Ohio S.L.J. ); Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 64 Harv. L. Rev. oy C1373 Mascolo, Impeaching the Credibility of Affidavits Search Warrants: Piercing the Pre- sumption eee ees , 44 Conn. B.J. ss CST Oy; omment, allenges to the Veracity of Facially Sufficient War- rants - 1s the Trut evant t?, » hat Seton Hall L. Rev. Comment, Controvertin Probable Cause in pecially Su fFictent Affidavits, ° r . . ° 7 ° ; Comment, The Outwardly Sufficient Affidavits: What if ter. Failse?, .C.L.A.L. REV. 96 (1971); Note, Search Warrant Affidavits - The Con- stitutional Constraints, 23 Drake L. Rev. 623 (1974). 43 demonstrates that such challenges can be permitted without impairing legiti- mate state interests.29/ 297 Cf., Chimel v. California, 395 U.s. 752, 769 (1965) (Harlan, J., dis- senting). Some courts have held that although the Fourth Amendment requires sub-facial challenges, the costs in terms of judicial time and energy justify limit- ing such challenges to defendants who make a sufficient preliminary showing. E.g., United States v. Belcufine, 508 58 (ist Cir. 1974); United States v. Carmichael, 489 F.2d 983 (7th Cir. 1573) (en banc); United States v. Halsey, 257 F. Supp. 1002 (S.D.N.Y. 1566). See also, Model Code of Pre-Arraignment Procedure, SS § 290.3(1)(b) (1975). The arguments os such a requirement, or at least against its most severe forms, are convincingly presented by Professor Herman, supra n.2, at 721, 756-59 (1976). However, because the offer of testimony made by petitioner at the suppression hearing plainly satisfies the most yeemrdn: standards suggested, the Court need not and should not decide on this record whether states may deny hearings on lesser showings. Amicus urges the Court to defer ruling 44 ‘ 2. Compe tring Fourth Amendment considerations support sub-facial challenges. If, as we have argued, a warrant which issues on the basis of material and intentional misstatements cannot justify a search, then settled law requires that evidence seized in that search cannot be introduced against the defendant at trial. Mapp v. Ohio, 367 U.S. 643 (1961); Stone v. Powell, 428 U.S. 493 (1976). Although this case does not directly involve the exclusionary rule itself, we think it important to emphasize that the exclu- sionary rule is directed not only at illegal police conduct, but also at the violation of constitutional liber- ties by the entire criminal justice system. Thus, the exclusionary rule is not a sanction directed solely at on that issue until it has the benefit of wider experience under a variety of state rules. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341 randeis, J., dissenting). Cf., Shaefer, "The Fourteenth Amendment and Sanctity of the Person," 64 N.W.U.L. Rev. 1, 7-11 (1969). 45 the individual police officer, either by its terms or by its effect. The rule exists to enforce the Fourth Amendment throughout the criminal jus- tice system, from the officer on the beat, to the prosecutor, to the triai judge. Weeks v. United States, 232 U.S. 383, 391-92 (1514). A leading law review article on the exclusionary rule has pointed out that courts and police officers are not morai strangers ... but... parts of the same government and parties to the same govern- mental course of conduct and, indeed, neither a criminal court nor a law enforcement of- ficer makes sense in isolation of the other. A criminal court is not an intelligible insti- tution without the expectation that it will receive evidence from which to synthesize ver- dicts and judgments. By the same token, a policeman--e.g., the marshal in Weeks--may ES out in the iield, but his being out there in a law en- forcement, as opposed to some administrative, capacity is only intelligible on the ex- pectation that he will come in to court. 46 Thomas S. Schrock and Robert C. Welsh, "Up from Calandra: The Exclusionary Rule as a Constitutional Requirement," 59 Minn. L. Rev. 251, 300 (1974). The Fourth Amendment requires probable cause at every stage of the criminal justice process. As Professor Herman has observed: » « « In a case involving a warrant, the process has three parts: acquisition of information, transmission to a magistrate, and evalu- ation by the magistrate. Each part, no less than the others, plays a vital role in serving fourth amendment goals. Facial attacks-the validity of which has never been ques- tioned-assert the malfunc- tioning of the evaluation part. Sub-facial attacks implicate the other parts, primarily transmission. Given the equally crucial role played by each part, sub-facial attacks should, as a matter of fourth amendment law, be permitted without restriction, for they go to the very heart of the protection of privacy. Pro- hibiting sub-facial attacks or 47 imposing restrictions that are functionally equivalent to prohibition “reduces the Fourth Amendment to a form of words." Herman, supra n.2 at 760, citing Silverthorne Lumber Co. v. United States, 251 U.S. 365, 392 (1920). CONCLUSION In the circumstances of this case, the Court below erred in denying the defendant an opportunity to challenge the veracity of material allegations in an affidavit used to establish probable cause to search.* Respectfully submitted, BRUCE J. ENNIS c/o American Civil Liberties Foundation 22 East 40th Street New York, NY 10016 212-725-1222 *®” Amicus wishes to acknowledge the substantial assistance of Charles S. Sims, a candidate for admission to the New York Bar, in the research and drafting of this brief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0813%3A8. Public record. Not legal advice.