Bearing false witness: perjured affidavits and the Fourth Amendment.

• Author: Gard, Stephen W.

"Thou shalt not bear false witness against thy neighbour." (2)

1. INTRODUCTION

   The "central value of the Fourth Amendment" is the protection of the sanctity of the home from unjustifiable intrusion by law enforcement officials. (3) It is settled law that before law enforcement officers may enter a home to conduct a search or make an arrest they must, absent consent (4) or exigent circumstances, (5) first procure a valid warrant from a neutral and detached magistrate. (6) The entire beneficial nature of the warrant requirement, however, rests upon the necessary assumption that in each case the law enforcement officer's warrant application affidavit faithfully provides to the magistrate a truthful rendition of the underlying facts and circumstances necessary for an independent judicial determination. The Fourth Amendment "is no barrier at all if it can be evaded by a policeman concocting a story that he feeds a magistrate." (7)

   Cases presenting the issue of allegedly falsified warrant affidavits arise routinely in the lower courts throughout the United States. The United States Supreme Court, however, has not addressed the issue in almost thirty years. The Court not only left many important doctrinal questions unanswered in its 1978 decision in Franks v. Delaware, (8) but no scholarly examination of the problem of police perjury in warrant affidavits has since occurred. (9) This absence of guidance for lower courts is especially acute because Franks predates both the Supreme Court's revolutionary reinterpretation of the Fourth Amendment (10) and the development of most modern civil rights law. (11) Thus, it is not surprising that lower courts have been unable to formulate coherent and consistent legal standards in this important area of the law. Unfortunately, the only area where lower courts have been consistent exists in erecting inappropriate barriers to the vindication of the serious wrongs perpetrated by perjured warrant affidavits.

   This Article addresses these important issues in both the criminal context of motions to suppress and in the civil context of actions brought pursuant to 42 U.S.C. [section] 1983. (12) Part II discusses the prevalence of falsified warrant affidavits. Part III explains how such police perjury strikes at the very heart of the protections against unreasonable searches and seizures that the warrant clause of the Fourth Amendment provides. Part IV explains the Supreme Court's holding in Franks and identifies the many questions left unanswered by the majority opinion. Parts V, VI, and VII articulate the proper legal doctrines to govern cases of allegedly falsified warrant affidavits and explain why the barriers erected by the lower courts are unjustifiable. This Article concludes that allegations of perjurious warrant affidavits present pure issues of fact to be resolved by the trier of fact. If the trier of fact determines that one or more perjured statements in the warrant affidavit caused the search or arrest, then the Fourth Amendment has been violated, entitling the victim to relief without the necessity of surmounting any additional legal barriers.

2. THE PROBLEM OF FALSIFIED WARRANT AFFIDAVITS

   Legal scholars have generally assumed, with no empirical foundation, that law enforcement officers so rarely file perjured warrant affidavits that the issue is unworthy of concern. Indeed, to the extent the issue has been discussed at all, scholars have concluded that the warrant requirement itself operates as an effective deterrent to such police perjury. (13) Scholars of the Fourth Amendment generally advance the argument that law enforcement officers not only have less incentive to lie in a warrant affidavit, but also that it is more difficult for them to do so because they file the warrant affidavit prior to conducting the search. (14) At that stage, officers are unaware of whether the search will be successful in discovering the sought-after contraband or other evidence of illegality. Scholars bolster this argument with the assertion that a magistrate is more likely to uncover police perjury when deciding whether to issue a warrant than a judge, ruling on a motion to suppress after the occurrence of the search. (15)

   The assumption that police perjury in warrant affidavits is rare and effectively deterred by the warrant application process is counter-intuitive and contradicted by all available evidence. Inasmuch as lies and deception are an acceptable feature of much routine law enforcement activity, (16) it should come as no surprise that scholars have found that law enforcement officers frequently lie to their own superiors in police reports (17) and even perjure themselves in testimony at criminal trials. (18) The general consensus among scholars notes the pervasiveness of police perjury at suppression hearings. (19) Indeed, substantial evidence demonstrates that police perjury is so common that scholars describe it as a "subcultural norm rather than an individual aberration." (20) There is no reason to believe that police perjury does not also present a serious problem in warrant affidavits. In fact, many of the same empirical investigations upon which scholars base their conclusion that police perjury constitutes a serious problem in these other contexts also document widespread perjury by law enforcement officers in warrant affidavits. (21)

   The disturbing ease with which one can find examples of falsified warrant applications provides powerful evidence of the serious problem of police perjury in our society. In 2002, the United States Foreign Intelligence Surveillance Court (FISC) reported that in September of 2000, the federal government admitted to "misstatements and omissions of material acts" in "75 FISA applications related to major terrorist attacks directed against the United States." (22) As a result, the court refused to accept inaccurate affidavits from FBI agents and even prohibited one FBI agent from appearing before the court as a FISA affiant. (23) Six months later, in March 2001, the federal government admitted to "similar misstatements in another series of FISA applications." (24) More disturbing is the Justice Department's apparent lack of interest in the punishment of the FBI agents or the prevention of similar future occurrences. The FISC noted that:

   These incidents have been under investigation by the FBI's and the Justice Department's Offices of Professional Responsibility for more than one year to determine how the violations occurred in the field offices, and how the misinformation found its way into the FISA applications and remained uncorrected for more than one year despite procedures to verify the accuracy of FISA pleadings. As of this date, no report has been published, and how these misinterpretations occurred remains unexplained to the Court. (25) In 2001, the FBI undertook "Operation Candyman," one of the largest investigations into the internet distribution of child pornography. The operation's efforts were jeopardized upon discovery that the sworn affidavits of an FBI Special Agent, filed in support of numerous applications to search the suspects' residences, contained knowingly false statements of purported fact. (26)

   Similarly, subsequent evidence revealed that the warrant authorizing the search of the Branch Davidian compound near Waco, Texas, which resulted in a law enforcement disaster and the death of several innocent children, was based on an affidavit containing many falsehoods. (27) Search and arrest warrants and the resulting criminal prosecution for federal gun crimes are routinely based on the purported accuracy of the information contained in the National Firearms Registration and Transfer Record, maintained by the Bureau of Alcohol, Tobacco, and Firearms. The head of the National Firearms Act branch of the Bureau has stated, "When we testify in court, we testify that the database is one hundred percent accurate. That's what we testify to, and we will always testify to that. As you probably well know, that may not be one hundred percent true." (28) Abundant examples of law enforcement officers falsifying statements of their own observations in warrant affidavits also exist. (29) One such example is the well-documented common practice of police officers including fictitious statements from nonexistent confidential informants in warrant affidavits. (30) Even when a confidential informant actually exists, law enforcement officers frequently falsify statements in the warrant affidavit regarding the informant's reliability or credibility. (31)

   Police perjury in warrant affidavits thus constitutes a serious problem. Contrary to the prevailing wisdom, the warrant application process is entirely unsuited to the discovery of false statements in warrant affidavits. (32) The magistrate conducts the warrant application ex parte and rarely questions the police officer about the content of the affidavit. In any event, the magistrate lacks the investigative resources to verify the truthfulness of the statements in the officer's affidavit. (33) Additionally, because the law enforcement officer who signs the warrant affidavit oftentimes simply relays information learned from another officer, (34) the warrant affidavit may consist entirely of hearsay. (35) In such cases, the supposed ability of the magistrate to judge the credibility of the affiant becomes an ineffective safeguard. Even when a search is based on a warrant, the first opportunity the criminal process affords the defendant to challenge the factual basis for the search occurs at an after-the-fact suppression hearing. At that time, the magistrate's prior issuance of a warrant generally creates "a presumption of validity with respect to the affidavit supporting the search warrant." (36) Thus, a warrant-based search is generally less vulnerable to challenge than a warrantless search.

   The Founding Fathers crafted the Fourth Amendment in direct response to "the harsh experience...