If an officer lied on a sworn affidavit, that leads to a search warrant. Is the search warrant invalid?

Question

An officer lied about following my brother from place A. to our home. He could not have followed him because his car was not functioning, yet the sworn affidavit says that he was followed.

Then once at our home they said that they smelled something, witch was probably true, They called in for a search warrant based on the smell, but the original affidavit that points out the reason they were there that lead to the smell that lead to the warrant was completely fabricated. Do I have a case? I have heard from many others that officers will often spoof affidavits to make a bust.

I believe a franks hearing is the proper direction of action if I have a case, but I want to know what the general consensus is.

I found this on the internet:

(1)Going “Behind the Face” of the Affidavit
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:

1.A false statement was included in the affidavit by the affiant (the officer applying for the warrant);
2.The affiant intentionally or recklessly included the false statement; and
3.The false statement was material to the finding of probable cause.

Thank you for your time.

Answer 1

Deliberately false information provide to get a Search Warrant generally invalidates the warrant. Now, was the sworn affidavit to get the Warrant or was the warrant requested after entry into the house? Big difference. Did the police use probable cause for entry and then get a warrant or was entry authorized by the warrant.
If the warrant was issued because of false information the case should be thrown out - "fruit from a poison tree".

Answer 2

Here's a little case law from Idaho. You should check your state's case law.

In order for a search warrant to be valid, it must be supported by probable cause to believe that evidence or fruits of a crime may be found in a particular place. Josephson, 123 Idaho at 792-93, 852 P.2d at 1389-90. When determining whether probable cause exists:


The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238; see also Wilson, 130 Idaho at 215, 938 P.2d at 1253.

When tainted evidence has been relied upon for the issuance of a warrant, an appellate court must determine whether the remaining information presented to the magistrate, after the tainted evidence is excluded, contains adequate facts from which the magistrate could have concluded that probable cause existed for issuance of the search warrant. Doe v. State, 131 Idaho 851, 853, 965 P.2d 816, 818 (1998); Buterbaugh, 138 Idaho at 101, 57 P.3d at 812.

When probable cause to issue a search warrant is challenged on appeal, the reviewing court's function is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 239 (1983); State v. Josephson, 123 Idaho 790, 792, 852 P.2d 1387, 1389 (1993); State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). In this evaluation, great deference is paid to the magistrate's determination. Gates, 462 U.S. at 236; State v. Wilson, 130 Idaho 213, 215, 938 P.2d 1251, 1253 (Ct. App. 1997). The test for reviewing the magistrate's action is whether he or she abused his or her discretion in finding that probable cause existed. State v. Holman, 109 Idaho 382, 387, 707 P.2d 493, 498 (Ct. App. 1985). When a search is conducted pursuant to a warrant, the burden of proof is on the defendant to show that the search was invalid. State v. Kelly, 106 Idaho 268, 275, 678 P.2d 60, 67 (Ct. App. 1984).

A Frank's hearing will be the tool to test voracity. However, officers have been known to lie and very few of us have cameras to catch this type of misconduct. Good luck.

Answer 3

You need a lawyer to argue this for you. If you take the DA on in court on your own, you will get eaten alive. You may have basis to get the warrant excluded and whatever was found as a result of the warrant thrown out also. I am not sure about the finer legal points, but you might be able to get it tossed.
My first advice is stop doing whatever it is that got you busted to begin with. If you think getting this tossed will end your legal problems, you may be sorely dissapointed. They (the cops) will be back, and you won't be able to jaywalk without getting busted. They may not get you on this charge, but if they know you are doing something illegal, you are gonna get caught, and this will make them all the more determined to catch you.

Answer 4

It is most likely you can not prove the officers statement was false. So it will be your word against thier word.

And of course if they found things during the search, this would tend to prove they did smell something.

And in general they would not even have had to say why they were at your home, but merley that they were at your door and smelled something, the actual reason they were at the door is not really important since it is not illegal to be at your door.

This is going to be up to a coin toss, a liberal judge may throw it out, another one won't.

I am by the book, so if he did lie I would have thrown it out.

Answer 5

You would need to prove that the officer was lying then the warrant would have been giving falsely and anything found during the search would be considered inadmissible.

Answer 6

Better check all of your ducks, Sport. There are bad police just like there are bad anything but it would be career suicide and substantial libel for a sworn police officer to do such a thing. There must be an explanation.

Answer 7

It kills me that the issue here isn't whether or not your brother was breaking the law and needs to be jailed!!!!! This is exactly what is wrong with our society right now. There are killers walking among us for this very reason. How about taking the approach that he was/is guilty and should be punished?!

Answer 8

A GOOD LAWYER WILL EAT THIS CASE UP. IF FALSE STATEMENTS WERE GIVEN TO OBTAIN A SEARCH WARRANT THE WARRANT AND ALL THE EVIDENCE BECOME INADMISSIBLE IN COURT. YOU JUST HAVE TO PROVE THAT HE MADE A FALSE STATEMENT.

Answer 9

yes I believe that is true that officers have lied to get a search warrant

Answer 10

Yes it will be thrown out..."Fruit from the poison tree"...some bad people have gotten away with murder but I guess thats the costs of freedom