QUESTION

If a police officer lies in an application for a search and seizure warrant, what happens? Can the officer get in trouble and lose his job?

Asked on Jun 25th, 2010 on Criminal Law - Connecticut
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If a police officer lies in an application for a search and seizure warrant, what happens? Can the officer get in trouble and lose his job?
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Complex Federal Criminal Defense Attorney serving Denver, CO at Jeralyn E. Merritt
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A warrant to search and seize property is subject to the Fourth Amendment of the U.S. Constitution or a state equivalent. The application, which is submitted to a judge, must be supported by an affidavit, made under oath, setting forth facts to establish probable cause that evidence of a crime is likely to be located at the place to be searched. After reviewing the sworn affidavit, if the Judge agrees probable cause has been shown, the warrant is issued. If you believe the officer lied in the affidavit, you can file a motion to suppress any evidence seized during the search. Your motion must set forth the specific statements in the affidavit you believe to be either intentionally false, or made with a reckless disregard for the truth. You should also include any omissions of facts that you believe would have been material to the finding of probable cause. This is often called a "Franks Motion", named after the Supreme Court case of Franks v. Delaware. You will also want to ask for a hearing on your motion. At the court hearing, you will have the opportunity to present testimony and evidence supporting your position that the officer lied or recklessly disregarded the truth in his affidavit. If the court agrees, the court will strike the false statements from the affidavit (and insert the material facts intentionally or recklessly omitted) and then re-read the affidavit. If the corrected version no longer meets the probable cause threshold, the judge can declare the warrant invalid and suppress from evidence at trial all items seized during the search. If after retracting and adding the correct information, the judge still finds probable cause, the warrant remains valid. If the false statements are serious ones, the officer could face disciplinary action affecting his job. This is by no means automatic, however, particularly if he or she is able to convince their superiors that they were mistaken rather than lying, or that they relied on information they believed to be true at the time. In an extreme case, the officer could be charged with perjury, for submitting a false document made under oath to the court, however I doubt that happens often.
Answered on Jun 25th, 2010 at 12:10 AM

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