Bearing False Witness: Perjured Affidavits and the Fourth Amendment
Gard, Stephen W., Suffolk University Law Review
"Thou shalt not bear false witness against thy neighbour." (2)
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.
II. 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. …