Franks v. Delaware, No. 77-5176

CourtUnited States Supreme Court
Writing for the CourtBLACKMUN
Citation57 L.Ed.2d 667,438 U.S. 154,98 S.Ct. 2674
Decision Date26 June 1978
Docket NumberNo. 77-5176
PartiesJerome FRANKS, Petitioner, v. State of DELAWARE

438 U.S. 154
98 S.Ct. 2674
57 L.Ed.2d 667
Jerome FRANKS, Petitioner,

v.

State of DELAWARE.

No. 77-5176.
Argued Feb. 27, 1978.
Decided June 26, 1978.
Syllabus

Prior to petitioner's Delaware state trial on rape and related charges and in connection with his motion to suppress on Fourth Amendment grounds items of clothing and a knife found in a search of his apartment, he challenged the truthfulness of certain factual statements made in the police affidavit supporting the warrant to search the apartment, and sought to call witnesses to prove the misstatements. The trial court sustained the State's objection to such proposed testimony and denied the motion to suppress, and the clothing and knife were admitted as evidence at the ensuing trial, at which petitioner was convicted. The Delaware Supreme Court affirmed, holding that a defendant under no circumstances may challenge the veracity of a sworn statement used by police to procure a search warrant. Held : Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant's request. The trial court here therefore erred in refusing to examine the adequacy of petitioner's proffer of misrepresentation in the warrant affidavit. Pp. 155-156, 164-172.

(a) To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. The allegation of deliberate falsehood or of reckless disregard must point out specifically with supporting reasons the portion of the warrant affidavit that is claimed to be false. It also must be accompanied by an offer of proof, including affidavits or sworn or otherwise reliable statements of witnesses, or a satisfactory explanation of their absence. P. 171.

(b) If these requirements as to allegations and offer of proof 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, but if the remaining content is insufficient, the defendant is entitled under the Fourth and Fourteenth Amendments to a hearing. Pp. 171-172.

Page 155

(c) If, after a hearing, a defendant establishes by a preponderance of the evidence that the false statement was included in the affidavit by the affiant knowingly and intentionally, or with reckless disregard for the truth, and the false statement was necessary to the finding of probable cause, then the search warrant must be voided and the fruits of the search excluded from the trial to the same extent as if probable cause was lacking on the face of the affidavit. Pp. 155-156.

373 A.2d 578, reversed and remanded.

Argued by Donald W. Huntley, Wilmington, Del., for petitioner.

Harrison F. Turner, Smyrna, Del., for respondent.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This case presents an important and longstanding issue of Fourth Amendment law. Does a defendant in a criminal proceeding ever have the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?

In the present case the Supreme Court of Delaware held, as a matter of first impression for it, that a defendant under no circumstances may so challenge the veracity of a sworn statement used by police to procure a search warrant. We reverse, and we hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was

Page 156

included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

I

The controversy over the veracity of the search warrant affidavit in this case arose in connection with petitioner Jerome Franks' state conviction for rape, kidnaping, and burglary. On Friday, March 5, 1976, Mrs. Cynthia Bailey told police in Dover, Del., that she had been confronted in her home earlier that morning by a man with a knife, and that he had sexually assaulted her. She described her assailant's age, race, height, build, and facial hair, and gave a detailed description of his clothing as consisting of a white thermal undershirt, black pants with a silver or gold buckle, a brown leather three-quarter-length coat, and a dark knit cap that he wore pulled down around his eyes.

That same day, petitioner Franks coincidentally was taken into custody for an assault involving a 15-year-old girl, Brenda B. ______, six days earlier. After his formal arrest, and while awaiting a bail hearing in Family Court, petitioner allegedly stated to Robert McClements, the youth officer accompanying him, that he was surprised the bail hearing was "about Brenda B. ______. I know her. I thought you said Bailey. I don't know her." Tr. 175, 186. At the time of this statement, the police allegedly had not yet recited to petitioner his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Page 157

On the following Monday, March 8, Officer McClements happened to mention the courthouse incident to a detective, Ronald R. Brooks, who was working on the Bailey case. Tr. 186, 190-191. On March 9, Detective Brooks and Detective Larry D. Gray submitted a sworn affidavit to a Justice of the Peace in Dover, in support of a warrant to search petitioner's apartment.1 In paragraph 8 of the affidavit's "probable cause page" mention was made of petitioner's statement to McClements. In paragraph 10, it was noted that the description of the assailant given to the police by Mrs. Bailey included the above-mentioned clothing. Finally, the affidavit also described the attempt made by police to confirm that petitioner's typical outfit matched that of the assailant. Paragraph 15 recited: "On Tuesday, 3/9/76, your affiant contacted Mr. James Williams and Mr. Wesley Lucas of the Delaware Youth Center where Jerome Franks is employed and did have personal conversation with both these people." Paragraphs 16 and 17 respectively stated: "Mr. James Williams revealed to your affiant that the normal dress of Jerome Franks does consist of a white knit thermal undershirt and a brown leather jacket," and "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."

The warrant was issued on the basis of this affidavit. App. 9. Pursuant to the warrant, police searched petitioner's apartment and found a white thermal undershirt, a knit hat, dark pants, and a leather jacket, and, on petitioner's kitchen table, a single-blade knife. All these ultimately were introduced in evidence at trial.

Prior to the trial, however, petitioner's counsel filed a written motion to suppress the clothing and the knife found in the search; this motion alleged that the warrant on its face did not show probable cause and that the search and seizure were

Page 158

in violation of the Fourth and Fourteenth Amendments. Id., at 11-12. At the hearing on the motion to suppress, defense counsel orally amended the challenge to include an attack on the veracity of the warrant affidavit; he also specifically requested the right to call as witnesses Detective Brooks, Wesley Lucas of the Youth Center, and James D. Morrison, formerly of the Youth Center.2 Id., at 14-17. Counsel asserted that Lucas and Morrison would testify that neither 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 16. Defense counsel charged that the misstatements were included in the affidavit not inadvertently, but in "bad faith." Id., at 25. Counsel also sought permission to call Officer McClements and petitioner as witnesses, to seek to establish that petitioner's courthouse statement to police had been obtained in violation of petitioner's Miranda rights, and that the search warrant was thereby tainted as the fruit of an illegally obtained confession. Id., at 17, 27.

In rebuttal, the State's attorney argued in detail, App. 15-24, (a) that Del.Code Ann., Tit. 11, §§ 2306, 2307 (1974), contemplated that any challenge to a search warrant was to be limited to questions of sufficiency based on the face of the affidavit; (b) that, purportedly, a majority of the States whose

Page 159

practice was not dictated by statute observed such a rule; 3 and (c) that federal cases on the issue were to be distinguished because of Fed.Rule Crim.Proc. 41(e).4 He also noted that

Page 160

this Court had reserved the general issue of subfacial challenge to veracity in Rugendorf v. United States, 376 U.S. 528, 531-532, 84 S.Ct. 825, 827-828, 11 L.Ed.2d 887 (1964), when it disposed of that case on the ground that, even if a veracity challenge were permitted, the alleged factual inaccuracies in that case's affidavit "were of...

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9530 practice notes
  • Cherry v. Jorling, No. 97-CV-152A(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • November 15, 1998
    ...United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir.1996) (quoting Leon, supra, at 914, 104 S.Ct. 3405 and citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Evidence seized pursuant to a warrant does not violate the Fourth Amendment even if the warrant ......
  • Hudson v. Michigan, No. 04-1360.
    • United States
    • United States Supreme Court
    • June 15, 2006
    ...application of the [exclusionary] rule to suppress evidence from the State's case" in a criminal trial. Franks v. Delaware, 438 U. S. 154, 171 I can find nothing persuasive in the majority's opinion that could justify its refusal to apply the rule. It certainly is not a justification f......
  • U.S. v. Spillone, Nos. 86-5037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1989
    ...did not require an evidentiary hearing on the sufficiency of the affidavits supporting the wiretap orders. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 Another hearing was held after Spillone was convicted. Angelo, who had left the witness protection pro......
  • United States v. Al-Safoo, Case No. 18-CR-696
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 4, 2021
    ...or with reckless disregard for its truth, in the FISA application(s) that would entitle him to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). As there is no indication of any such false statements in the FISA application(s), a Franks hearing is not warranted in this matter;P......
  • Request a trial to view additional results
9545 cases
  • Cherry v. Jorling, No. 97-CV-152A(F).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • November 15, 1998
    ...United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir.1996) (quoting Leon, supra, at 914, 104 S.Ct. 3405 and citing Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Evidence seized pursuant to a warrant does not violate the Fourth Amendment even if the warrant ......
  • Hudson v. Michigan, No. 04-1360.
    • United States
    • United States Supreme Court
    • June 15, 2006
    ...application of the [exclusionary] rule to suppress evidence from the State's case" in a criminal trial. Franks v. Delaware, 438 U. S. 154, 171 I can find nothing persuasive in the majority's opinion that could justify its refusal to apply the rule. It certainly is not a justification f......
  • U.S. v. Spillone, Nos. 86-5037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1989
    ...did not require an evidentiary hearing on the sufficiency of the affidavits supporting the wiretap orders. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 Another hearing was held after Spillone was convicted. Angelo, who had left the witness protection pro......
  • United States v. Al-Safoo, Case No. 18-CR-696
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 4, 2021
    ...or with reckless disregard for its truth, in the FISA application(s) that would entitle him to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). As there is no indication of any such false statements in the FISA application(s), a Franks hearing is not warranted in this matter;P......
  • Request a trial to view additional results
1 firm's commentaries
  • Notice Of Appeal Spring 2022
    • United States
    • Mondaq United States
    • May 3, 2022
    ...together, our precedent reveals the standard of review we should apply to a district court's denial of a motion for a Franks [v. Delaware, 438 U.S. 154 (1978)] hearing. We review for clear error a district court's determination regarding whether false statements in a warrant application wer......
1 books & journal articles
  • The Broken Fourth Amendment Oath.
    • United States
    • Stanford Law Review Vol. 74 Nbr. 3, March 2022
    • March 1, 2022
    ...et al., supra note 39, at 55 (noting that the use of double hearsay is widespread in some jurisdictions). (43.) Franks v. Delaware, 438 U.S. 154, 171 (44.) See id. ("The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non......

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