STATE оf Utah, Plaintiff and Respondent, v. Jeffery Scott NIELSEN, Defendant and Appellant.
No. 19688.
Supreme Court of Utah.
Oct. 6, 1986.
Under the circumstances we hold that the improper comment did not entitle defendant to a new trial and did not affect his substantial rights.
The judgment is affirmed.
STEWART, J., concurs in the result.
David L. Wilkinson, Atty. Gen., Earl F. Dorius, Salt Lake City, for plaintiff and respondent.
ZIMMERMAN, Justice:
Defendant 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.
On April 30, 1983, Detective Harold Howard executed an affidavit which was used to obtain a search 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, 116 U.S. 616, 624-30, 6 S.Ct. 524, 528-32, 29 L.Ed. 746 (1886); State v. Harris, 671 P.2d 175, 178 (Utah 1983). To that end, the
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, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); see State v. Hygh, 711 P.2d 264, 267 (Utah 1985). The interposition of a magistrate between the investigating officer and the person who is the object of the search is intended to limit the arbitrariness which might otherwise result if the determination of probable cause were left to the unbridled discretion of the police officer conducting the search. E.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948); State v. Harris, 671 P.2d at 178. Clearly, however, the magistrate can only fulfill his constitutional function if the information given to him is true; the obvious assumption behind the warrant requirement is that the factual showing to support a finding of probable cause will be truthful. United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966), cited in Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). Therefore, courts must be particularly vigilant in as-
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. 438 U.S. at 171-72. By an extension of reasoning, the same test applies when a misstatement occurs because information is omitted; the affidavit must be evaluated to determine if it will support a finding of probable cause when the omitted information is inserted. See, e.g., United States v. Ippolito, 774 F.2d 1482, 1486-87 n. 1 (9th Cir.1985); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980); see generally 2 W. LaFave, Search and Seizure § 4.4 at 21-24 (1985 Supp.). If an affidavit fails to support a finding of probable cause after the false statements are excised or the omitted information is added, i.e., if the omission or misstatement materially affects the finding of probable cause, any evidence obtained under the improperly issued warrant must be suppressed. Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676; United States v. Martin, 615 F.2d at 328; accord, e.g., United States v. Riccio, 726 F.2d 638, 641 (10th Cir.1984). The obvious purpose of Franks and its progeny is to avoid suppressing evidence when the actual facts, if known to the magistrate, would have resulted in a finding of probable cause. Deterrence of police misconduct is not to be a factor in the decision to suppress unless the misconduct materially affects the finding of probable cause.1
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 apрlication 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 be 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 hаd been conveyed through another officer, there would have been sufficient information before the magistrate to support a finding that the informant was reliable.2 Therefore, under the reasoning of Franks, we must conclude that the falsehood was not material, and we must sustain the warrant as a matter of federal law.3
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, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).
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 resolved under the
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, 611 P.2d 1222, 1224 (Utah 1980).5 The trial court must weigh several faсtors in deter-mining whether to require disclosure: the defendant‘s need for disclosure in order to prepare a defense, the potential safety hazards to the persons involved, and the public interest in preserving the flow of information from informants. Id. By necessary implication, a defendant must make some showing that disclosure of an informant‘s identity is material and essential to his defense.
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 showing 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, 133 Ariz. 376, 651 P.2d 1201, 1202 (1982); State v. Helfrich, 33 Wash.App. 338, 656 P.2d 506, 510 (1982).
The conviction is affirmed.
HALL, C.J., and HOWE and DURHAM, JJ., concur.
I dissent. The evidence obtained pursuant to the search warrant should be suppressed under the law stated in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The search warrant was invalid because a knowingly false affidavit provided the basis for the issuance of the warrant.
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, 462 U.S. 213, 239-40, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983); see United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984). The integrity of the process is dependent upon truthful affidavits that establish probable cause. United States v. Leon, supra, recently expressly reaffirmed the rule established in Franks v. Delaware, supra, that though evidence is obtained pursuant to a search warrant, the evidence must be suppressed if the warrant was based on an affidavit that was false and the affiant knew it to be false. United States v. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. 2 W. LaFave, Search and Seizure § 4.4, at 20 n. 11 (Supp.1986). Condoning police misstatements that are knowingly false is fraught with intolerable evils. It not only allows the pоlice to manipulate the judiciary, but also subverts Fourth Amendment freedoms.
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, 714 F.2d 896 (9th Cir.1983).1 The court stated:
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, 781 F.2d 1498, 1504-05 (11th Cir.1986).
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. Seе, e.g., United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965); United States v. Bernard, 607 F.2d 1257, 1266-67 (9th Cir. 1979).
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 application 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, 712 F.2d 975, 977 (5th Cir.1983); United States v. Namer, 680 F.2d 1088, 1095 n. 12 (5th Cir.1982). Officer Howard originally may have thought that the inaccuracy was unimportant because he personally believed in the truthfulness of Detective Blair‘s statements, but “law enforcement officials may [not] freely submit affidavits they know to be false if they deem the falsehood not to be material.” United States v. Davis, 714 F.2d at 900. The determination of whether probable cause exists is for the magistrate, and the fact that an affiant has no personal knowledge of the informant‘s reliability or the source of the informant‘s knowledge is material to the magistrate‘s probable cause determination.
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 information he had obtained from another officer. The majority opinion asserts that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the affiant‘s misstatement was harmless error. The majority is, I submit, in error. In Franks, the defendant‘s appeal was based upon his allegation that the affiants, who were police officers, made the same type of misrepresentation as the affiant officer made in this case. Franks, 438 U.S. at 158, 98 S.Ct. at 2677. The Court characterized the alleged false statement as “misstatements” which placed “the integrity of the affidavits ... in issue.” Id. at 163-64, 98 S.Ct. at 2680. Franks held that when a defendant makes specific allegations supported by evidence that an affiant has made an intentionally false statement in a warrant affidavit, the defendant is entitled to prove those allegations at a hearing unless, when the alleged misstatements “is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Id. at 172, 98 S.Ct. at 2684. The plain implication of the decision is that if the defendant‘s allegations were proved on remand, the evidence should be exсluded.2
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, 462 U.S. at 239, 103 S.Ct. at 2332. Intentional misstatements must be set aside if warrants are to perform their critiсal purpose. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684; United States v. Kirk, 781 F.2d at 1505-06 (warrant affidavit containing intentional misstatements analyzed in “redacted form” with misstatements excised). 2 W. LaFave, Search and Seizure § 4.4(c), at 66 (1978). When the false statements in Officer Howard‘s affidavit are set to one side, the remaining content is insufficient to establish the veracity and reliability of the informant, and thus there are no facts remaining which justify a magistrate‘s exercising reasonable caution in concluding that and had to be directed to a specific statement and supported by reliable evidence. In addition,
if these requirements are met, and if, when material that is the subject of the allegеd 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. 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, 98 S.Ct. at 2684. Footnote 8 contains Franks’ concession “that if what is left is sufficient to sustain probable cause, the inaccuracies are irrelevant.” Id. at 172 n. 8, 98 S.Ct. at 2684 n. 8. The case was remanded to the Delaware Supreme Court so that the court could develop its own rules to govern proffers of proof for the veracity hearings required under Franks. Id. at 172, 98 S.Ct. at 2684. The obvious implication of the opinion was that if Franks established the truth of his allegations, the evidence was to be suppressed.
Nielsen had committed, or was in the process of committing, an offense. See Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 92 L.Ed. 1879 (1949).
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 from 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 cаuse 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, 615 F.2d 318, 327-28 (5th Cir.1980); Schmid v. State, 615 P.2d 565, 577 (Alaska 1980).3
By ignoring the officеr‘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
affidavits. Id. at 1485. In dicta in footnote 1, the court discussed the procedure to be applied if there are material omissions from an affidavit. Id. at 1486-87 n. 1. The court noted that Franks had analyzed the affidavit after ignoring the false statements, but that courts analyzing material omissions had been forced to insert omitted material to get a more accurate picture of the harm caused by the omissiоn. The court concluded that analyzing the warrant as though it contained the truth was the preferable approach in all cases. It therefore deleted the false statements, substituted the trial court‘s finding of fact, and suppressed the wiretap evidence because the wiretap was unnecessary. Id. at 1486-87. In footnote 3, the court noted that the result would have been the same had the material merely been deleted. Id. at 1487 n. 3.
The second case relied upon by the majority, United States v. Martin, 615 F.2d 318 (5th Cir.1980), deals with omitted facts, not misstatements. In that case, the defendant alleged that the affiant had intentionally omitted from the affidavit the fact that the informant had been granted immunity for his information, and that the affiant had initiated the interview with the informant and had used a “yes and no” questioning format. The Court of Appeals for the Fifth Circuit stated the general principle that when such facts are intentionally omitted from the affidavit, the affidavit must be evaluated as if the omitted material had been included to determine if probable cause existed. However, the court held that the record did not establish that the informant had been granted immunity, and that even though the other two omissions were established, the defendant had failed to prove that they were more than negligent. Id. at 329.
United States v. Riccio, 726 F.2d 638 (10th Cir.1984), did not deal with omitted material facts. Rather, the court addressed two alleged misstatements. The court stated that affidavits containing intentional misstatements must be analyzed as though the misstatement were deleted. It held that one misstatement was not material and that the defendant had not proved the other, and that even without the two alleged misstatements the affidavit contained sufficient accurate statements to support issuance of the warrant. Id. at 641.
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, 468 U.S. at 923, 104 S.Ct. at 3421. See United States v. Ippolito, 774 F.2d 1482, 1486-87 (9th Cir.1985). That showing has been made in this case. Therefore, the warrant is invalid under Franks, and the evidence seized pursuant to it should be suppressed.
I would reverse the conviction and remand for a new trial.
Notes
15. On Tuesdаy, 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, 98 S.Ct. at 2686. At the suppression hearing, Franks asserted that neither Lucas nor Morrison “had been personally interviewed by the warrant affiants, and that, although they might have talked to another police officer, any information given by them to that officer was ‘somewhat different’ from what was recited in the affidavit.” Id. at 158, 98 S.Ct. at 2677. The trial court refused to hear Franks’ evidence. The Delaware Supreme Court affirmed that refusal, holding “that no attack upon the veracity of a warrant affidavit could be made.” Id. at 160, 98 S.Ct. at 2678.
As a preliminary matter, the United States Supreme Court rejected the argument that the alleged misstatements were harmless under Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). The Court stated that, in contrast to Rugendorf, “[h]ere, whatever the judgment may be as to the relevancy of the alleged misstatements [to the showing of probable causе], the integrity of the affidavit was directly placed in issue by petitioner in his allegation that the affiants did not, as claimed, speak directly to Lucas and Morrison.” Franks, 438 U.S. at 163-64, 98 S.Ct. at 2680.
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,”
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. The 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