State v. Nielsen

• Decision Date: 06 October 1986
• Docket Number: No. 19688,19688
• Citation: 727 P.2d 188
• Parties: STATE of Utah, Plaintiff and Respondent, v. Jeffery Scott NIELSEN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 188

727 P.2d 188

55 USLW 2286

STATE of Utah, Plaintiff and Respondent, v. Jeffery Scott NIELSEN, Defendant and Appellant.

No. 19688.

Supreme Court of Utah.

Oct. 6, 1986.

Kenneth R. Brown, Salt Lake City, for defendant and appellant.

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. 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 search warrant for Nielsen's residence. In the affidavit, Detective Howard stated that a confidential informant had told him that an individual living at Nielsen's address and driving a car with a personalized license plate reading "Skydive" possessed one-half pound of cocaine valued at approximately $16,000. Detective Howard further stated that he had confirmed the informant's tip and that he considered the informant to be reliable because the informant's previous tips had led to the arrests of three individuals on drug-related charges.

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 Constitution provides that, with certain exceptions not relevant here, a search must be authorized by a warrant issued "upon probable cause, [and] supported by Oath or affirmation...." U.S. Const. amend. IV.

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 assessing a claim that a police officer has misrepresented information in an affidavit supporting the issuance of a search warrant.

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. 483 U.S. 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 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 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.

The use of hearsay evidence to establish probable cause does not necessarily undercut the validity of a warrant. If the hearsay is reliable, and there is a substantial basis for giving it credence, it will support the issuance of a warrant. United States v. Harris, 403 U.S. 573, 580-81, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971); accord State v. Bankhead, 30 Utah 2d 135, 138, 514 P.2d 800, 802 (1973); State v. Treadway, 28 Utah 2d 160, 162-63, 499 P.2d 846, 847-48 (1972). In addition, there is a presumption that law enforcement officers will convey information to each other truthfully. See, e.g., United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965); McCormick v. United States, 309 F.2d...