18

Would I be correct in saying that police have a duty to fairly represent the facts to a judge when they attempt to get a warrant to search premises? Is there some sort of oversight in regard to how warrants are issued? Or is the oversight having your lawyer contest the validity of the search at your trial?

If a judge thinks the police are, either through neglect or incompetence, withholding information that would keep a judge from issuing a warrant what would happen then? Is this grounds for a policeperson losing his or her job or can a judge just then choose not to issue any further warrants with that department, making there job just that bit harder?

2
  • 2
    Deception as in, "lying through omission"?
    – RonJohn
    Jul 1 at 7:30
  • Good question, so upvoted, but the wording of the title implies this doesn't happen. Perhaps a little editing by the OP? (I don't want to edit and accidentally change your intent). Jul 2 at 4:23
20

You are correct. A judge may only issue a warrant when it is supported by an affidavit, in which the officer seeking the warrant swears under oath to the facts supporting the warrant. Lying on the affidavit would constitute perjury.

But judges very frequently just rubber-stamp the warrants without meaningfully reviewing the affidavits, so the primary form of oversight would be the defendant's Fourth Amendment challenge asserting that the warrant wasn't supported by probable cause.

If a judge does review the warrant application and finds the officer's statements not to be credible, he can refuse to sign the warrant, and he is free to also carry that credibility determination to subsequent warrants sought by the same officer or other officers in his department.

5
  • 8
    The DA might also have a Brady obligation to reveal to criminal defense counsel a 4th Amendment ruling successfully concluding that the officer's testimony in support of the warrant was not truthful in any future criminal prosecution reliant upon the credibility of that officer.
    – ohwilleke
    Jun 30 at 21:48
  • 3
    Unfortunately, a police officer lying to a judge to get a warrant will also lie later. I assume a defense lawyer will be given the reason why a judge signed a warrant very easily?
    – gnasher729
    Jun 30 at 22:52
  • 1
    You can tell me if I should ask this in a seperate question but if there emerges a pattern of warrants authorised by a specific judge, being overthrown, does the oversight that the judiciary surely must face consider this when judges are appointed again? What would the condequence be for the judge if it haapened reguarly?
    – Neil Meyer
    Jul 2 at 10:37
  • There are sort of several different answers to that question. It probably should be separated out.
    – bdb484
    Jul 2 at 14:39
  • @bdb484 I Did Go And Ask Another Question. I'm really enjoying this site and the things I'm learning
    – Neil Meyer
    Jul 2 at 19:11
12

Evidence obtained under a warrant supported by a falsely-sworn affidavit can be challenged as inadmissible, see Franks v. Delaware, 438 U.S. 154, if

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

If the defendant makes a good case for an evidentiary hearing (the court says more specifically what that means), and

after a hearing, a defendant establishes by a preponderance of the evidence that the false statement was included in the affidavit by the affiant knowingly and intentionally, or with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, then the search warrant must be voided, and the fruits of the search excluded from the trial to the same extent as if probable cause was lacking on the face of the affidavit

So even if the warrant is signed, it can be invalidated.

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  • 1
    Since the validity of a warrant could depend upon whether someone is telling the truth, which would seem to be a matter of fact that could affect whether someone is convicted, is there any reason why should a defendant not be entitled to have such issues evaluated by a jury? To be sure, telling a trial court jury that they should disregard certain evidence if they they think an officer was lying in a warrant application might not be as beneficial to the defendant as not having the jury hear such evidence in the first place, but if a judge believes a cop that the defense thinks a jury...
    – supercat
    Jul 2 at 20:10
  • 1
    ...would not find credible, instructing the jury to disregard the evidence if they don't believe the cop would be better than instructing the jury to accept the evidence without considering such issues.
    – supercat
    Jul 2 at 20:11
5

You are correct that the defendant's lawyer is the main protection against this kind of thing. The lawyer will file a motion to suppress the evidence based on lack of probable cause. If successful, the evidence can't be used at trial and the prosecutor will probably have to drop the charges unless they have or can come up with some other evidence.

Also note that under Leon the trial court is generally going to show deference to the magistrate judge's decision re granting the warrant. But if there is deception on the part of the officer the trial court will no longer show deference. That means there is a much better chance of winning on your motion to suppress than you'd have in a case without deception.

7
  • What could you do if a police officer searches your home with a valid warrant, that you believe was based on deceiving the judge, when you are completely innocent, no evidence is found, and you never end up in court? Police entering your house is unpleasant and the neighbours might get the wrong idea, so can you sue for anything?
    – gnasher729
    Jun 30 at 22:55
  • 3
    A federal § 1983 suit for damages caused by a deprivation of your constitutionally protected right to be free from unreasonable search would be one route.
    – teapot
    Jun 30 at 23:06
  • @gnasher729 There's not much the government can do about impressions that your neighbors get. Similar to when a public figure is exonerated, the public may still remain suspicious ("where there's smoke there's fire").
    – Barmar
    Jul 1 at 14:44
  • @gnasher729 You can't sue if you're dead. en.wikipedia.org/wiki/Pecan_Park_raid
    – shoover
    Jul 1 at 16:10
  • 2
    @gnasher729 The FBI can also investigate the incident and indict the officers on criminal charges, as was done in the example shoover linked.
    – bta
    Jul 2 at 0:28

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