Law enforcement officers at times may be tempted to include deliberate false, inaccurate, or misleading statements in search warrant or arrest warrant affidavits. Likewise, officers may be tempted to deliberately omit important facts and information from an affidavit, which if included, would diminish the strength of probable cause necessary to support the issuance of the warrant.
Placing deliberate material false statements or those made with reckless disregard for the truth in an affidavit must be scrupulously avoided by officers. False statements of this nature have been declared patently unlawful by the U.S. Supreme Court. [1] Likewise, intentional material omissions from an affidavit have been declared unlawful by numerous federal appellate courts.
More importantly, including deliberate false statements in an affidavit necessarily involves an officer swearing under oath before a judge or magistrate. The consequences of this kind of misconduct can be serious and far-reaching, resulting in abrogation of the warrant, suppression of evidence, civil liability, employment termination and criminal perjury charges against the affiant and other involved officers. Consequences of this magnitude present a potential nightmare for those crossing the integrity boundary. A path no sane law enforcement officer should want to traverse.
Intentional false statements: Franks v. Delaware
Franks was tried and convicted in Delaware for rape. Evidence located by police during the execution of a search warrant at his residence was introduced during his trial. Prior to trial, Franks filed a motion to suppress and challenge the veracity of certain statements contained in the affidavit supporting the search warrant. [2] The trial court denied the motion and the Delaware Supreme Court affirmed, ruling that criminal defendants are not permitted by law to challenge the truthfulness of statements contained in sworn search warrant affidavits.
The United States Supreme Court reversed, holding that if a defendant can make a substantial preliminary showing that: (1) a search warrant affidavit contains a statement/statements that are deliberately false or made with reckless disregard for the truth, and (2) that those statements are necessary/material to probable cause, the presiding judge must declare the warrant to be unconstitutional, i.e., a violation of the Fourth Amendment and suppress evidence of criminal conduct located during the search.
Material omissions
As previously mentioned, warrant affidavits are likewise scrutinized for material information omitted by the affiant or other law enforcement officials that assisted him/her in the preparation of the affidavit. According to the William & Mary Bill of Rights Journal, [3] ”Although not considered in the Franks opinion, every [Federal] circuit has extended Franks to include challenges to omissions in the warrant affidavit.” [4] If an affiant or an officer who assists in the preparation of an affidavit, omits or withholds from a judge or magistrate information material to a probable cause determination, the warrant is likely to be declared unconstitutional and evidence gathered suppressed.
Recent cases indicate ignorance or disregard of Franks and its progeny
In a recent federal appellate decision, Atlanta Police Detective James Barnett arrested Harry Sylvester for the murder of his mother and stepfather who were found strangled and burnt to death in his mother’s home. Detective Barnett conducted an investigation that culminated in his submission of an affidavit for an arrest warrant for Sylvester. The warrant was issued, and Sylvester was arrested. He subsequently remained incarcerated for more than a year until the district attorney dropped the charges. Another person was ultimately charged with the crimes.
Sylvester sued Barnett in federal court for violating his Fourth Amendment rights. Sylvester alleged that Barnett deliberately omitted material facts from his warrant affidavit that if included would have resulted in denial of the warrant by the judge. The district court ruled in Barnett’s favor and Sylvester appealed.
The Eleventh Circuit Court of Appeals [5] reversed and observed that Barnett omitted from the affidavit facts indicating that the murder victims were alive and well when Sylvester left their house and that he did not return after leaving. Moreover, the investigation revealed evidence indicating that the murders and house fire occurred approximately seven hours after Sylvester left the residence. This information was likewise omitted from the affidavit.
The court ruled in favor of Sylvester and explained, “There were material facts omitted from the warrant affidavit. When those omissions are corrected, the affidavit fails to establish even arguable probable cause. As to Detective Barnett’s state of mind when he authored the affidavit, a reasonable jury could find that Detective Barnett intentionally or recklessly left out information that exonerated Sylvester. And if a jury finds such misconduct, qualified immunity will not shield Detective Barnett from liability.” [6]
Conclusion
Franks v. Delaware is not a brand-new decision from the United States Supreme Court. The case was decided by the Court in 1978. There is nothing complicated about the decision itself or the plethora of federal appellate and district court opinions that followed over the years. The message from these cases is clear and simple to comprehend.
If an officer prepares a search or arrest warrant affidavit that contains intentional false/misleading information or includes such information recklessly and the information is material/necessary for probable cause, the warrant is invalid, and the evidence found will be suppressed. Likewise, if the affiant deliberately or recklessly omits (i.e. Hides) information critical to a probable cause determination, the result will be the same.
For officers engaging in the practice of filing false affidavits, false police reports, testifying falsely under oath, or other similar nefarious misconduct, suppression of evidence in a criminal case may be only the start of potential serious negative consequences. Other consequences are likely to involve internal discipline, including termination [7]; civil liability [8]; criminal prosecution for perjury [9]; name addition to prosecutor “Brady” (i.e. “Do Not Call” to testify) lists [10]; and potential decertification from being a police officer [11].
Such negative consequences will likely result in career destruction, if not worse. Principles of honesty, integrity and good character must stand against and prevail over the temptation to do the wrong thing. Remember, a valued outcome is always eclipsed by the exposure of malevolent means.
References
1. Franks v. Delaware, 438 U.S. 154 (1978).
2. Franks’ reasoning and rationale applies equally to arrest warrant affidavits. See, United States v. Barbosa, 896 F.3d 60 (1st Cir. 2018).
3. Diana B. Frankly, It’s a Mess: Requiring Courts to Transparently “Redline” Affidavits in the Face of Franks Challenges, 29 Wm. & Mary Bill Rts. J. 825, 836 (2021).
4. Id. Footnote 125, “See generally United States v. Owens, 917 F.3d 26 (1st Cir. 2019); United States v. Moody, 931 F.3d 366 (4th Cir. 2019); United States v. Reed, 921 F.3d 751 (8th Cir. 2019); United States v. Whyte, 928 F.3d 1317 (11th Cir. 2019); United States v. Perkins, 850 F.3d 1109 (9th Cir. 2017); United States v. Brown, 857 F.3d 334 (6th Cir. 2017); United States v. Hansmeier, 867 F.3d 807 (7th Cir. 2017); United States v. Dorman, 860 F.3d 675 (D.C. Cir. 2017); United States v. Danhach, 815 F.3d 228 (5th Cir. 2016); United States v. Thomas, 788 F.3d 345 (2d Cir. 2015); United States v. Pavulak, 700 F.3d 651 (3d Cir. 2012); United States v. Ruiz, 664 F.3d 833 (10th Cir. 2012).”
5. Sylvester v. Fulton County Jail, APD INV. James Barnett, #5918, Darren Smith, (No. 22-13258) (11th Cir. 3/11/ 2024).
6. For other recent cases ruling against police officer affiants on this critical issue, see, Pinkney v. Meadville, Pennsylvania; Patrolman Jared Frum, (No. 23-1095) (3d Cir. 3/12/24). In this case, the court ruled, “Police may not fake facts to find probable cause. Officer Jared Frum applied for an arrest warrant. In his application, he allegedly turned a shaky witness statement into a confident identification and left out evidence that undermined the identification’s reliability. A judge then relied on this altered story to issue a warrant to arrest Kobe Pinkney. But because there was no probable cause to arrest him, Officer Frum violated his clearly established [Fourth Amendment] rights.”
See also, United States v. Anderson, (Criminal Action No. 7: 19-cr-00027), U.S.D.C. WD Virginia, (January 16, 2020). Here, the court ruled in favor of the defendant and observed, “Detective Bridges acknowledged that “when the information forming the basis of probable cause comes from an informant, information regarding the reliability of the informant is absolutely critical.” (Hr’g Tr. 27.) See also United States v. Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996) (“Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983))). Thus, after omitting information regarding the CIs’ reliability, Detective Bridges had obvious reason to doubt the accuracy of his affidavit.” The court explained, “Anderson has established by a preponderance of the evidence that Detective Bridges omitted information essential to the magistrate’s probable cause determination in reckless disregard of whether the omission would mislead the magistrate.”
7. See, e.g. City of Boston v. Boston Patrolman’s Association, 443 Mass. 813, 824 (2005).
8. Wilson v. Russo, 212 F.3d 781, (3rd Cir. 2000); Bilal v. Borough, (Civil Action no.14-5438), U.S.D.C., E.D. Penn. (2017).
9. Commonwealth v. Luna, 418 Mass. 749 (1994).
10. See, Matt Chapman, Max Blaisdell, Sam Stecklow, “Disgraced Cops Still On The Streets and in The Courtrooms,” Chicago Reader, March 26, 2024.
11. For an analysis of some of the states that have created or added statutory requirements for officer decertification, in the past few years see, “Developments in Law Enforcement officer Certification and Decertification,” National Conference of State Legislatures (NCSL), February 17, 2023.
