Lying to Catch the Bad Guy: the Eleventh Circuit's Likely Adoption of the Clear Error Standard of Review for Denial of a Franks Hearing
| Citation | Vol. 24 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-21-2012
Lying to Catch the Bad Guy: The Eleventh Circuit's Likely Adoption of the Clear Error Standard of Review for Denial of a Franks Hearing
Brittany H. Southerland
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Recommended Citation
Southerland, Brittany H. (2007) "Lying to Catch the Bad Guy: The Eleventh Circuit's Likely Adoption of the Clear Error Standard of Review for Denial of a Franks Hearing," Georgia State University Law Review: Vol. 24: Iss. 3, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss3/6
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LYING TO CATCH THE BAD GUY: THE ELEVENTH CIRCUIT'S LIKELY ADOPTION OF THE CLEAR ERROR STANDARD OF REVIEW FOR A DENIAL OF A FRANKS HEARING
Introduction
The authorities knock on a door of a residence. When the door opens, the officers show a search warrant to search the premises. During the search, the officers seize several pieces of evidence. However, a closer look at the search warrant reveals that the magistrate judge issued it based on misleading information. The affiant fabricated the information provided for the issuance of the search warrant. Can a defendant challenge the veracity of the information supporting the issuance of the search warrant even after the authorities obtain the incriminating evidence? Or is the defendant forced to defend against evidence obtained only because of a search warrant based on false information?
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1
In light of the Fourth Amendment requiring the issuance of a warrant only "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched," the Supreme Court developed a hearing to determine if the warrant meets these criteria in the Franks case, subsequently called a "Franks" hearing. Upon denial of a defendant's right to a Franks hearing, the circuit
1. U.S. Const, amend. IV.
2. U.S. CONST, amend. IV; see Franks v. Delaware, 438 U.S. 154 (1978) and infra Part n.A.
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courts are split as to the proper standard of review for an appellate court's review of the district court's findings. As noted recently in U.S. v. Arbolaez, the Eleventh Circuit has yet to determine its precise standard of review.4
This Note will present an overview of a Franks hearing, including the standards of review adopted by the circuits and will explain why the Eleventh Circuit will likely adopt the clear error standard of review.5 Specifically, Part I will address the Fourth Amendment and its application to search warrants.6 Part II will discuss a Franks hearing as applied to the Fourth Amendment by the Supreme Court in Franks v. Delaware.1 Part III will discuss the Eleventh Circuit's current standing on the issue and will give an overview of the different standards of review used by appellate courts.8 Part IV will explain the three most common standards of review as applied to a Franks hearing, the circuits that have adopted each standard, and their reasoning for their adoption.9 Finally, Part V will discuss why the Eleventh Circuit will likely adopt the clear error standard in reviewing a denial of a Franks hearing by the district court.10
I. Fourth Amendment Application
A. An Overview
As noted, the Fourth Amendment grants all individuals freedom from unreasonable searches and seizures and warrants issued without probable cause, without oath or affirmation, and without describing with particularity the place to be searched.11 As such, the Fourth
3. See infra Part IV.
4. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006).
5. See infra Parts H-V.
6. See infra Part I.
7. See infra Part n.
8. See infra Part III.
9. See infra Part IV.
10. See infra Part V.
11. U.S. Const, amend. IV.
2008] CLEAR ERROR FOR DENIAL OF FRANKS HEARING 845
Amendment is a restraint only upon actions by state and federal government officials.
B. Fourth Amendment's Application to Search and Seizure
A warrant allows "an impartial judicial officer to assess whether the police have probable cause to make an arrest or conduct a search."13 The Fourth Amendment grants protection against unreasonable searches and seizures.14 The exclusionary rule prevents evidence that has been illegally seized from being admitted in a criminal trial.15 If investigators think that probable cause exists to search a premise to confiscate evidence to use against a defendant at the defendant's trial, the investigators must present evidence supporting the warrant's issuance before a magistrate judge.16 The affidavit or sworn testimony must establish the grounds for issuing the warrant.17
12. See Burdeau v. McDowell, 256 U.S. 465, 474-75 (1921) (finding the Fourth Amendment inapplicable when a former employee took papers incriminating a discharged employee from office). In some circumstances, its restraints extend to actions by foreign government officials. Compare United States v. Hawkins, 661 F.2d 436,455-56 (5th Cir. 1981) (finding the Fourth Amendment inapplicable to a search carried out by foreign officials if the circumstances surrounding the search did not "shock the conscience"), cert, denied, 459 U.S. 832 (1982), and United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976) (holding that the Fourth Amendment generally does not apply to foreign governmental officials, except when the actions "shock the judicial conscience" or when the exclusionary rule applies because American law enforcement authorities participate in the search), with United States v. Mount, 757 F.2d 1315, 1318 (D.C. Cir. 1985) (finding the Fourth Amendment's exclusionary rule inapplicable in a foreign search because no United States official participated).
13. Frederick Alexander & John L. Amsden, Sixteenth Annual Review of Criminal Procedure: United States Supreme Courts and Courts of Appeals 1985-1986: Investigation and Police Practices, 75 GEO. L.J. 713, 727-28 (1987). However, warrantless searches are, in some instances, allowed. See Peter J. Kocoras, Comment, The Proper Appellate Standard of Review for Probable Cause to Issue a Search Warrant, 42 DePaul L. Rev. 1413, 1424-25 (1993). "Although warrantless searches are presumptively unreasonable, the Supreme Court recognizes several exceptions to the presumption." These exceptions include: automobiles if probable cause exists, searches in residences if exigent circumstances and probable cause exist, or if a property owner consents to the search. Id.
14. U.S. const, amend. IV.
15. Paul Simon, Comment, The Fourth Amendment's Exclusionary Rule-Judicial Remedy Or Constitutional Mandate: Is There Room For The "Good Faith" Exception?, 41 S. TEX. L. REV. 1101, 1114(2000).
16. Kocoras, supra note 13, at 1423.
17. Id.
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The Fourth Amendment further requires that the grounds for issuance of a search warrant exist only upon a showing of probable cause.18 Probable cause exists if "at the moment the arrest was made, the officers had probable cause to make it—whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense."19 The magistrate judge makes this determination by looking at all of the facts in the "totality of the circumstances." Suspicion in itself is insufficient to establish probable cause.21
If the judge determines that probable cause exists based on the affidavits or testimony of the affiant seeking a search warrant he may grant the warrant, but the warrant must "identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned."
II. Franks v. Delaware23
The Supreme Court in Franks v. Delaware forged new ground in its holding that a criminal defendant in certain circumstances may challenge the information in a search warrant.24
A. An Overview
Probable cause is only one factor in determining the need to suppress the evidence gathered pursuant to a search warrant.25 The
18. U.S. CONST, amend. IV; United States v. Hensley, 713 F.2d 220, 222 (6th Cir. 1983) (finding that '"every arrest' and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause") (quoting Michigan v. Summers, 452 U.S. 692, 700 (1981)).
19. See United States v. Ayres, 725 F.2d 806, 809 (1st Cir. 1984) (quoting Beck v. Ohio, 379 U.S. 89,91 (1964)) (internal quotation marks omitted).
20. United States v. Purham, 725 F.2d 450,455 (8th Cir. 1984).
21. Brinegar v. United States, 338 U.S. 160, 175 (1949); United States v. Algie, 721 F.2d 1039, 1043 (6th Cir. 1983) (per curiam).
22. Fed. R. Crim. P. 41 (e)(2XA).
23. Franks v. Delaware, 438 U.S. 154 (1978).
24. See id. at 172.
2008] CLEAR ERROR FOR DENIAL OF FRANKS HEARING 847
Supreme Court in Franks v. Delaware found that it is also possible to suppress the evidence gathered pursuant to a search warrant by successfully challenging the veracity of a sworn statement used by police to procure the search warrant.
1. Facts
In Franks, affidavits from the police supported the issuance of a search warrant to search the home of Jerome...
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