373 A.2d 578 (Del. 1977), Franks v. State

Citation:373 A.2d 578
Party Name:Jerome FRANKS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Case Date:April 29, 1977
Court:Supreme Court of Delaware

Page 578

373 A.2d 578 (Del. 1977)

Jerome FRANKS, Defendant Below, Appellant,


STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

April 29, 1977

Submitted March 16, 1977.

Page 579

Upon appeal from Superior Court. Affirmed.

Donald W. Huntley, Asst. Public Defender, Wilmington, for defendant below, appellant.

Harrison F. Turner, Deputy Atty. Gen., Dover, for plaintiff below, appellee.

Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Defendant appeals his conviction by a Superior Court jury of first degree rape, 11 Del.C. § 764, 1 second degree kidnapping, 11 Del.C. § 783, 2 and first degree burglary, 11 Del.C. § 826, 3 contending that the Trial Court erred in refusing to hear impeachment testimony at a suppression hearing. We disagree.


According to the victim, she was confronted in her home, at about 5:00 a.m., by a knife-wielding assailant who forced her to perform multiple acts of sexual intercourse with him. The victim later described to the police the clothing worn by the assailant and identified defendant as the assailant.

A search warrant was obtained by the police and used to seize articles of defendant's clothing and a knife, which were introduced at trial over defendant's objection. The Trial Court refused to hear evidence offered at the suppression hearing to impeach the averments of the affidavit used to establish probable cause for the issuance of the search warrant.

At trial, defendant did not deny that he had had intercourse with the victim, asserting the defense of consent.


Defendant contends that the Trial Court erred in refusing to hear testimony at the suppression hearing which would have impeached the affidavit establishing probable cause for the search warrant; that this violated the Fourth Amendment prohibition against unreasonable searches and seizures and the requirement that no search warrant shall issue but upon probable cause, supported by oath or affirmation. There is no attack upon the validity of the warrant on its face, and the United States Supreme Court has left open the extent to which a supporting affidavit may be challenged for accuracy. Rugendorf v. United States, 376 U.S. 528, 531--32, 84 S.Ct. 825, 827--28, 11 L.Ed.2d 887, 891 (1964). The majority of the jurisdictions considering this question have decided that no attack upon the veracity of an underlying affidavit may be made.

Page 580

See 68 Am.Jur.2d Searches and Seizures § 66 (1973). We agree with the majority rule for two reasons. First, it is the function of the issuing magistrate to determine the reliability of information and credibility...

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