Lying to Obtain a Search Warrant Affidavit of Probable Cause
A question that some people have is: “What can make a search warrant invalid?” While “scope of the search” can be an issue, it has more to do with its execution and whether the search was conducted within the stated terms of the search warrant. A “scope of the search” argument only challenges specific evidence seized outside the authorized conditions of the search warrant. A broader argument is to challenge the validity of the search warrant itself. When the underlying justification to establish probable cause for a search warrant is based on materially false statements made by police or when critical information was omitted in the search warrant affidavit of probable cause, then the defendant may have a suppression motion hearing to argue that the search warrant was not valid.
In the landmark case of Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that: “Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant's request.”
Therefore, if there is a preliminary showing that a police officer made false statements in the search warrant affidavit, either knowingly or intentionally or with reckless disregard for the truth, then a suppression hearing may be held. And if it is established during the suppression hearing that the police officer who requested the affidavit of probable cause committed perjury or a “reckless disregard for the truth” regarding a statement on which the probable cause finding was based, then the search warrant may be deemed invalid and any resulting physical evidence may be suppressed as “Fruit of the poisonous tree”.
However, a hearing is not required to determine whether the search warrant contained false information, when there is sufficient unchallenged information to establish probable cause apart from the challenged statement. See State v. Goldberg 214 N.J. Super 401, 408 (App Div. 1986). In other words, if there are enough facts to establish probable cause without the inclusion of the false statement, then the false statement doesn’t matter.
Material omissions are also a consideration when it comes to a “Franks Hearing”. When information is omitted from a search warrant affidavit, it is only relevant if the information withheld was material to the justification of probable cause. Material simply means that it would have defeated a probable cause finding had it been included in the affidavit. See State v. Stelzner, 257 N.J. Super. 219, 235 (App. Div.), certif. den. 130 N.J. 396; State v. Marshall, 148 N.J. 89, 193, cert. den. 522 U.S. 850 (1997); and State v. Smith, 212 N.J. 365, 399, 410 (2012).
So then, what is a good definition of probable cause, you ask? As stated in State v. Dangerfield, 171 N.J. 446 (2002): "Probable cause exists if at the time of the police action there is 'a well- grounded suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204,, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). It requires nothing more than "'a practical, common-sense decision whether, given all the circumstances. . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2322, 76 L. Ed. 2d 527, 548 (1983)); State v. Novembrino, 105 N.J. 95, 117-18 (1987). The flexible, practical totality of the circumstances standard has been adopted because probable cause is a "'fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.'" Schneider v. Simonini, 163 N.J. 336, 361 (2000) (quoting Illinois v. Gates, supra, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).
While this definition may seem confusing or ambiguous, it’s because the evaluation of probable cause is very subjective. Determining what constitutes probable cause is dependent on the totality of the circumstances involved in each case. So, if there are other undisputed facts contained in the search warrant affidavit that would form a basis for probable cause by themselves, then the inclusion of false statements made with “reckless disregard for the truth” or the omission of information may not be sufficient to secure a Judge’s approval for a suppression hearing if you cannot provide a preliminary showing that the information was material to the probable cause determination.
People often believe that simply because a cop made a false statement in the search warrant affidavit that the seized evidence should be automatically thrown out. This is not so. Getting a Judge’s permission to conduct a suppression hearing based on “Franks v. Delaware” can be challenging. An allegation of “reckless disregard for the truth” must point out specifically with supporting reasons the portion of the warrant affidavit claimed to be false. It must also be accompanied by proof, including affidavits or reliable statements of witnesses, sworn or otherwise. Hearings have been denied because either there was no preliminary showing of false or misleading statements or there was sufficient undisputed information contained in the search warrant to establish probable cause. Furthermore, it must be proven that a statement was willfully false and that it was intentional. It is sometimes hard to prove intent. You must show that the police officer knowingly and intentionally made the false statement or had reckless disregard for the truth. If the malicious intent is not clearly visible then it might be downplayed by the prosecutor as a simple mistake.
However, each case is different. If you are personally aware of false statements made or information left out of your search warrant affidavit and believe that they are material to the probable cause determination and believe they were willfully false with a reckless disregard for the truth, then it can be a powerful defense argument, if you meet the Franks standard.