Lead Opinion
Dеfendant Jeffrey Scott Nielsen appeals from a jury verdict finding him guilty of possessing a controlled substance with intent to distribute for value, a second degree felony. U.C.A., 1953, § 58-37-8(1)(a) (Repl.Vol. 6A, 1974 ed., 1985 Supp.). Nielsen argues that intentional misstatements in the affidavit supporting a search warrant for his residence rendered the warrant invalid under the fourth amendment to the federal constitution and required suppression of the evidence obtained pursuant to that warrant. He also argues that the information in the affidavit supporting the search warrant was insufficient to permit a finding of probable cause and that the trial court’s refusal to require disclosure of a confidential informant’s identity violated his due process rights. Although the officer’s misstatements were intentional and in bad faith, we find that the misstatements did not materially affect the magistrate’s finding of probable cause; therefore, the warrant must be sustained as a matter of federal law. Moreover, we find that the information in the affidavit supported the magistrate’s finding of probable cause and that the trial court did not err in refusing to require disclosure of the identity of the confidential informant. The conviction is affirmed.
On April 30,1983, Detective Harold Howard executed an affidavit which was used to obtain a sеarch warrant for Nielsen’s
A warrant authorizing a search for narcotics was issued and immediately executed. Nielsen was arrested after the search revealed that he possessed approximately 17.5 grams of cocaine, or just over one-half ounce. At a preliminary hearing, Detective Howard testified about the circumstances establishing probable cause for issuance of the warrant, repeating the statements contained in his affidavit.
After Nielsen was bound over for trial, the prosecution revealed that Detective Howard’s affidavit, which was the sole support for the search warrant, contained false statements. Contrary to his representations, both in the affidavit and at the preliminary hearing, Howard did not know the informant, had never had any personal contact with him, and had no personal knowledge of any facts relevant to the informant’s credibility. Instead, Detective Howard had been informed of the facts set forth in the affidavit and testified to at the preliminary hearing by another police officer, one Lieutenant Blair.
When the false statements came to light, Nielsen moved to suppress the evidence obtained in the search. Nielsen also moved the court for an order requiring the prosecution to identify and produce the confidential informant referred to in the affidavit. After a hearing, the trial court denied both motions in a minute entry. Nielsen proceeded to trial, where he was convicted of possessing a controlled substance with intent to distribute for value.
Before this Court, Nielsen first asserts that the intentional misstatements contained in Howard’s affidavit rendered the warrant invalid and the ensuing search illegal under the fourth amendment to the federal constitution. Accordingly, he argues that evidence obtained from that search should have been suppressed.
The overriding purpose of the fourth amendment’s provision prohibiting unreasonable searches and seizures is to safeguard personal privacy against arbitrary and unwarranted intrusions by governmental officials. E.g., Boyd v. United States,
The responsibility for issuing warrants and for meeting the pertinent constitutional requirements that underlie their issuance rests with the magistrate, a neutral and detached party who independently determines whether probable cause exists to support a search. United States v. Jeffers,
Nielsen argues that the search in this case was invalid under the legal principles espoused in Franks v. Delaware, supra. In Franks, the United States Supreme Court held that a defendant is entitled to an evidentiary hearing to challenge the validity of a search warrant if the defendant can establish that (i) an affiant in an affidavit supporting a search warrant made a false statement intentionally, knowingly, or with reckless disregard for the truth, and (ii) the affidavit is insufficient to support a finding of probable cause after the misstatement is set aside.
The State first contends that Detective Howard's false statements were not made intentionally, knowingly, or with reckless disregard for the truth, but were merely inadvertent technical errors attributable to his use of a standard form affidavit. This argument is entirely unpersuasive. A law enforcement officer must be aware not only of the need for accuracy in the information provided to a magistrate in support of an application for a search warrant, but also of the importance of absolute truthfulness in any statements made under oath. In this case, Detective Howard not only testified falsely in the affidavit, but repeated the perjured testimony in person and under oath at the preliminary hearing. We must conclude that Detective Howard’s testimony was knowingly false and that, as a matter of law, he acted in bad faith.
The State next contends that the warrant in this case is valid despite the false statement that Howard, rather than Lieutenant Blair, was personally familiar with the facts because the misstatement was immaterial. The State argues that warrants may bе ■ issued upon double hearsay between police officers under the general rule that law enforcement officers are presumed to tell each other the truth; therefore, the falsehood in question was not material to the magistrate’s finding of probable cause. We agree.
Because of the presumption that police officers will be truthful in their communications with each other, and because double hearsay may support the issuance of a warrant, it is apparent that had Detective Howard revealed that the information was not a matter within his personal knowledge, but had been conveyed through another officer, there would have been sufficient information before the magistrate to support a finding that the informant was reliable.
Our holding on this point disposes of Nielsen’s second argument — that the affidavit, when purged of the false statements, was insufficient to support a finding of probable cause. Given the totality of circumstances, with the omitted information inserted, the affidavit amply supported the magistrate’s finding of probable cause. See Illinois v. Gates,
Our upholding of the warrant under federal law should not be read as an endorsement of Detective Howard’s conduct or as. a determination of how the issue might be rеsolved under the Utah Constitution. As this case illustrates, the federal law as it has developed since Franks v. Delaware is not entirely adequate. There is no stronger argument for developing adequate remedies for violations of the state and federal
Our decision about what the appropriate remedy might be if Nielsen had argued that the officer’s action violated his rights under article I, section 14 of the Utah Constitution is an open question. This Court has not decided whether an immaterial, intentional misstatement in an affidavit supporting a warrant requires suppression of the evidence as a matter of Utah law or whether it may give rise to some civil cause of action. It is worth noting, however, that the Utah Legislature has enacted a statute which provides a remedy for search and seizure violations under the Utah Constitution.
Nielsen’s assertion that the trial court violated his due process rights when it failed to require the prosecution to disclose the identity of the confidential informant referred to in the affidavit can be quickly disposed of. As a matter of due process, the identity of a confidential informant must be disclosed only when such disclosure is “essential to a fair determination of the issues.” State v. Forshee,
In this case, Nielsen argued merely that entrapment was “often a legitimate defense” in drug cases and that identifying the informant “[might] provide a critical element” in his entrapment defense. Nielsen did not assert that the informant was a material witness or a participant in the crime charged, nor did he make any factual shоwing that the informant could provide information relevant to his defense. Under these circumstances, he failed to overcome the government’s privilege against disclosure. See State ex rel. Collins v. Riddel,
The conviction is affirmed.
Notes
. Prior to Franks, several circuits had held that even immaterial misstatements required suppression of the evidence if the misstatements were intentionally false. See, e.g., United States v. Carmichael,
. In the present case, the falsity in the affidavit was Detective Howard’s representation that he had talked to the informant personally, when in fact it was Lieutenant Blair who knew the informant and conveyed the information to Howard. Presumably, Howard was unaware that he could rely on the hearsay from Blair in seeking a warrant and lied to the magistrate and the court in an attempt to cure what he preceived to be an evidentiary problem. Under these circumstances, it seems appropriate to analyze the affidavit for probable cause by adding the information improperly omitted. See United States v. Ippolito,
. The dissent cites a case factually on point in support of its assertion that the misrepresentation was material and therefore required suppression of the evidence. See United States v. Davis,
Some courts have suggested a means for avoiding the result dictated by Franks by excluding evidence when intentionally false but immaterial statements were made in support of a warrant’s issuance. They have indicated that a court might rely on its general supervisory powers to exclude evidence seized in willful disobedience of the law when the evidence is not otherwise excludable under the fourth amendment. See United States v. Cortina,
. Although the legislature has recognized the need for some remedy for search and seizure misconduct by police, we express no opinion about the validity of the statute insofar as it attempts to otherwise limit the remedies available for violations of the federal or state constitutions.
. When State v. Forshee was decided. Rule 36 of the Utah Rules of Evidence contained an express provision concerning confidential informants. The rule has sinсe been repealed, but the exception to the privilege against nondisclosure of a confidential informant’s identity continues to exist as a matter of due process.
Dissenting Opinion
(dissenting):
I dissent. The evidence obtained pursuant to the search warrant should be suppressed under the law stated in Franks v. Delaware,
The primary protection afforded citizens against official, arbitrary intrusions into their homes and other private places is the requirement of a search warrant issued by a magistrate on proof that probable cause exists to invade a person’s privacy. Illinois v. Gates,
On facts virtually identical to those in this case, the United States Court of Appeals for the Ninth Circuit reversed the conviction of a defendant implicated in a murder and drug conspiracy. United States v. Davis,
Thompson could have relied on the facts learned from his subordinates to prepare a truthful affidavit. See e.g., United States v. Steed,465 F.2d 1310 , 1315 (9th Cir.), cert. denied,409 U.S. 1078 ,93 S.Ct. 697 ,34 L.Ed.2d 667 (1972). This entire problem could have been avoided if Thompson had simply rewritten the affidavit to indicate that he was relying on his officers who had personally interviewed the informants. See United States v. Ventresca,380 U.S. 102 , 110-111,85 S.Ct. 741 , 746-47,13 L.Ed.2d 684 (1965). Similarly, the affiant in Franks could have stated that his fellow officer interviewed the informants in question. By failing properly to identify their sources of information the affiants in each case made it impossible for the magistrate to evaluate the existence of probable cause. Franks teaches that when, as in this case, that failure is intentional the warrant must be invalidated. The fact that probable cause did exist and could have been established by a truthful affidavit does not cure the error.
Id. at 899 (emphasis added). See also United States v. Kirk,
The case is not comparable to cases in which the knowledge of one officer is imputed to another for the purpose of determining whether the officer had probable cause. See, e.g., United States v. Ventresca,
Officers operating in the field are entitled to rely on the information and judgment of fellow officers with whom they are working in close concert. The situation is very different when an appliсation is made for a warrant. Unlike officers in the field, a magistrate is not entitled to rely on the judgment of law enforcement officials. He or she is expected to review the material submitted and make a detached, independent judgment as to the existence of probable cause.
The normal presumption of validity attached to a magistrate’s finding of probable cause does not apply where the magistrate has not considered the untainted facts. United States v. Kolodziej,
In the instant case, the affiant officer inaccurately swore that he had personal knowledge of the facts establishing the reliability and veracity of an informant, when in fact he was relying on infоrmation he had obtained from another officer. The majority opinion asserts that under Franks v. Delaware,
To ensure that the probable cause requirement remains meaningful, we must “conscientiously review the sufficiency of affidavits on which warrants are issued.” Illinois v. Gates,
The majority refuses to set aside the officer’s misstatement by characterizing the misstatement as an “omission” which must be “inserted” into the affidavit. The cases relied upon by the majority do not support its holding, and Franks itself requires the opposite result. Although the majority asserts otherwise in a footnote, the affiant officer in the instant case did not omit anything frоm the warrant affidavit. He affirmatively misstated the source of his knowledge, and the rule in Franks controls this case.
Further, several courts have extended the rule in Franks to apply when facts material to a magistrate’s determination of probable cause are intentionally omitted from a warrant affidavit. See generally 2 W. LaFave, Search and Seizure § 4.4(b), at 23-25 (Supp.1986). In those cases, the courts have analyzed the affidavits as if the omitted facts had been included in the affidavit for the purpose of determining whether it establishes probable cause. See, e.g., United States v. Martin,
By ignoring the officer’s false statement and assuming either that the officer in fact told the truth or that the misstatement may be disregarded even though it goes to a material factor in the magistrate’s probable cause determination, the majority severely enfeebles the protections afforded by a warrant. Contrary to the assertion of the majority, the purpose of the Franks ruling is to deter police misconduct. Only when the false information is irrelevant to the magistrate’s determination of probable cause should warrants issued on the basis of affidavits containing intentionally false information be upheld. If the information was relevant and material to the magistrate’s probable cause determination, the warrant should be invalidated and the evidence excluded. United States v. Leon,
I would reverse the conviction and remand for a new trial.
. Most of the underlying facts are set out in an earlier appellate decision in the same case, United. States v. Davis,
. In Franks v. Delaware,
15. On Tuesday, 3/9/76, your affiant contacted Mr. James [Morrison, see id. at 158 n. 2,98 S.Ct. at 2677 ] and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have a personal conversation with both these people.
16. On Tuesday, 3/9/76, Mr. James [Morrison] revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket.
17. On Tuesday, 3/9/76, Mr. Wesley Lucas revealed to your affiant that in addition to the thermal undershirt and jacket, Jerome Franks often wears a dark green knit hat.
Id. at 175-76,
As a preliminary matter, the United States Supreme Court rejected the argument that the alleged misstatements were harmless under Rugendorf v. United States,
The Court then outlined the scope of the limited veracity challenge required by the Fourth Amendment. Any challenge had to allege "deliberate falsehood” or "reckless disregard for the truth" in a statement "only ... of the affiant,”
if these requirеments are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.8 On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.
Id. at 171-72,
. The sole legal support for the majority’s position is contained in a footnote in United States v. Ippolito,
In Ippolito, the Court of Appeals for the Ninth Circuit ruled that evidence obtained by a wiretap should have been suppressed. The federal wiretap statute requires that wiretap orders be issued only when they are necessary in a particular investigation. Thе district court granted the wiretap order on the basis of a false affidavit. One officer involved in the investigation of Ippolito told his contact inside Ippolito’s drug ring to tell the affiant officer that the contact feared for his safety and was unwilling to investigate further, thus establishing "necessity." The trial court found that, in fact, the contact felt safe and had a great potential for uncovering further information. Id. at 1484.
Ippolito found that the Franks analysis should be applied to suppress evidence obtained by wiretap orders issued on the basis of falsified
The second case relied upon by the majority, United States v. Martin,
United States v. Riccio,