U.S. Supreme Court Franks v. Delaware, 438
U.S. 154 (1978) Franks v. Delaware, 438
U.S. 154 (1978) No. 77-5176 Argued February 27,
1978 Decided June 26, 1978 438
U.S. 154 CERTIORARI TO THE SUPREME COURT OF
DELAWARE 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. 438 U. S.
155 -156; 438 U. S.
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. 438 U. S.
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. 438 U. S.
171 -172. Page 438 U. S. 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.

															BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ.,
joined, REHNQUIST, J., filed a dissenting opinion, in which BURGER,
C.J., joined, post, p. 438 U. S.
180 .

															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 438 U. S. 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 (1966). Page 438 U. S. 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. [ Footnote 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 438 U. S. 158 in violation af 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. [ Footnote 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. 124,
(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 438 U. S. 159 practice was not dictated by statute observed such a rule;
[ Footnote 3 ] and (c) that
federal cases on the issue were to be distinguished because of
Fed.Rule Crim.Proc. 41(e). [ Footnote 4 ] He also noted that Page 438 U. S. 160 this Court had reserved the general issue of subfacial challenge
to veracity in Rendorf v. United States, 376 U.
S. 528 , 376 U. S.
531 -532 (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 only peripheral relevancy to the showing of probable
cause, and, not being within the personal knowledge of the affiant,
did not go to the integrity of the affidavit." Id. at 376 U. S. 532 .
The State objected to petitioner's "going behind [the warrant
affidavit] in any way," and argued that the court must decide
petitioner's motion "on the four corners" of the affidavit. App.
21.

															The trial court sustained the State's objection to petitioner's
proposed evidence. Id. at 25, 27. The motion to suppress
was denied, and the clothing and knife were admitted as evidence at
the ensuing trial. Tr.192-196. Petitioner was convicted. In a
written motion for judgment of acquittal and/or new trial, Record
Doc. No. 23, petitioner repeated his objection to the admission of
the evidence, stating that he

															"should have been allowed to impeach the Affidavit used in the
Search Warrant to show purposeful misrepresentation of information
contained therein." Id. at 2. The motion was denied, and petitioner was
sentenced to two consecutive terms of 25 years each and an
additional consecutive life sentence.

															On appeal, the Supreme Court of Delaware affirmed. 373 A.2d
578 (1977). It agreed with what it deemed to be the "majority
rule" that no attack upon the veracity of a warrant affidavit could
be made:

															"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 of affiants in deciding whether the
requirement of probable cause has been met. There has been no need
demonstrated for interfering with this function. Second, neither
the probable cause nor suppression hearings are adjudications of
guilt or innocence; the matters asserted by defendant are Page 438 U. S. 161 more properly considered in a trial on the merits." Id. at 580. Because of this resolution, the Delaware
Supreme Court noted that there was no need to consider petitioner's
"other contentions, relating to the evidence that would have been
introduced for impeachment purposes." Ibid. Franks' petition for certiorari presented only the issue whether
the trial court had erred in refusing to consider his allegation of
misrepresentation in the warrant affidavit. [ Footnote 5 ] Because of the importance of the
question, and because of the conflict among both state and federal
courts, we granted certiorari. 434 U.S. 889 (1977). II It may be well first to note how we are compelled to reach the
Fourth Amendment issue proffered in this case. In particular, the
State's proposals of an independent and adequate state ground and
of harmless error do not dispose of the controversy.

															Respondent argues that petitioner's trial counsel, who is not
the attorney representing him in this Court, failed to include the
challenge to the veracity of the warrant affidavit in the written
motion to suppress filed before trial, contrary to the requirement
of Del.Super.Ct.Rule Crim.Proc. 41(e) that a motion to suppress
"shall state the grounds upon which it is made." The Supreme Court
of Delaware, however, disposed of petitioner's Fourth Amendment
claim on the merits. A ruling on the merits of a federal question
by the highest state court leaves the federal question open to
review Page 438 U. S. 162 in this Court. Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 , 234 U. S. 134 (1914); Raley v. Ohio, 360 U. S. 423 , 360 U. S.
436 -437 (1959); Boykin v. Alabama, 395 U.
S. 238 , 395 U. S.
241 -242 (1969).

															Respondent next suggests that any error here was harmless.
Assuming, arguendo, respondent says, that petitioner's
Fourth Amendment claim was valid, and that the warrant should have
been tested for veracity and the evidence excluded, it is still
clear beyond a reasonable doubt that the evidence complained of did
not contribute to petitioner's conviction. Chambers v.
Maroney, 399 U. S. 42 , 399 U. S. 52 -53
(1970). This contention falls of its own weight. The sole issue at
trial was that of consent. Petitioner admitted, App. 37, that he
had engaged in sexual relations with Mrs. Bailey on the day in
question. She testified, Tr. 50-51, 69-70, that she had not
consented to this, and that petitioner, upon first encountering her
in the house, had threatened her with a knife to force her to
submit. Petitioner claimed that she had given full consent, and
that no knife had been present. Id. at 254, 271. To
corroborate its contention that consent was lacking, the State
introduced in evidence a stainless steel, wooden-handled kitchen
knife found by the detectives on the kitchen table in petitioner's
apartment four days after the alleged rape. Id. at
195-196; Magistrate's Return on the Search Warrant March 9, 1976,
Record Doc. No. 23. Defense counsel objected to its admission,
arguing that Mrs. Bailey had not given any detailed description of
the knife alleged to be involved in the incident, and had claimed
to have seen the knife only in "pitch blackness." Tr.195. The State
obtained its admission, however, as a knife that matched the
description contained in the search warrant, and Mrs. Bailey
testified that the knife allegedly used was, like the knife in
evidence, single-edged and not a pocket knife, and that the knife
in evidence was the same length and thickness as the knife used in
the crime. Id. at 69, 114-115. The State carefully
elicited from Detective Brooks the fact that this was the only
knife found in petitioner's Page 438 U. S. 163 apartment. Id. at 196. Although respondent argues that
the knife was presented to the jury as "merely exemplary of the
generic class of weapon testimonially described by the victim,"
Brief for Respondent 15-16, the State at trial clearly meant to
suggest that this was the knife that had been used against Mrs.
Bailey. Had the warrant been quashed, and the knife excluded from
the trial as evidence, we cannot say with any assurance that the
jury would have reached the same decision on the issue of consent,
particularly since there was countervailing evidence on that
issue.

															We should note, in addition, why this case cannot be treated as
was the situation in Rugendorf v. United States. There,
the Court held that no Fourth Amendment question was presented when
the claimed misstatements in the search warrant affidavit

															"were of only peripheral relevancy to the showing of probable
cause, and, not being within the personal knowledge of the
affiant, did not go to the integrity of the affidavit."

															376 U.S. at 532 (emphasis added). Rugendorf emphasized
that the "erroneous statements . . . were not those of the
affiant," and thus "fail[ed] to show that the affiant was in bad
faith or that he made any misrepresentations to the Commissioner in
securing the warrant." Id. at 376 U. S. 533 .
[ Footnote 6 ] Here, Page 438 U. S. 164 whatever the judgment may be as to the relevancy of the alleged
misstatements, the integrity of the affidavit was directly placed
in issue by petitioner in his allegation that the affiants did not,
as claimed, speak directly to Lucas and Morrison. Whether such
conversations took place is surely a matter "within the personal
knowledge of the affiant[s]." We also might note that, although
respondent's brief puts forth that the alleged misrepresentations
in the affidavit were of little importance in establishing probable
cause, Brief for Respondent 16, respondent, at oral argument,
appeared to disclaim any reliance on Rugendorf. Tr. of
Oral Arg. 30. III Whether the Fourth and Fourteenth Amendments, and the derivative
exclusionary rule made applicable to the States under Mapp v.
Ohio, 367 U. S. 643 (1961), ever mandate that a defendant be permitted to attack the
veracity of a warrant affidavit after the warrant has been issued
and executed, is a question that encounters conflicting values. The
bulwark of Fourth Amendment protection, of course, is the Warrant
Clause, requiring that, absent certain exceptions, police obtain a
warrant from a neutral and disinterested magistrate before
embarking upon a search. In deciding today that, in certain
circumstances, a challenge to a warrant's veracity must be
permitted, we derive our ground from language of the Warrant Clause
itself, which surely takes the affiant's good faith as its premise:
"[N] o Warrants shall issue, but upon probable cause, supported by
Oath or affirmation. . . ." Judge Frankel, in United States v.
Halsey, 257 F.
Supp. 1002 , 1005 (SDNY 1966), aff'd, Docket No. 31369
(CA2, June 12, 1967) (unreported), put the matter simply:

															"[W]hen the Fourth Amendment demands a factual showing
sufficient to comprise 'probable cause,' the obvious assumption is
that there will be a Page 438 U. S. 165 ' truthful showing' (emphasis in original). This does
not mean 'truthful' in the sense that every fact recited in the
warrant affidavit is necessarily correct, for probable cause may be
founded upon hearsay and upon information received from informants,
as well as upon information within the affiant's own knowledge that
sometimes must be garnered hastily. But surely it is to be
'truthful' in the sense that the information put forth is believed
or appropriately accepted by the affiant as true. It is established
law, see Nathanson v. United States, 290 U. S.
41 , 290 U. S. 47 (1933); Giordenello v. United States, 357 U. S.
480 , 357 U. S. 485 -486 (1958); Aguilar v. Texas, 378 U. S. 108 , 378 U. S.
114 -115 (1964), that a warrant affidavit must set forth
particular facts and circumstances underlying the existence of
probable cause, so as to allow the magistrate to make an
independent evaluation of the matter. If an informant's tip is the
source of information, the affidavit must recite 'some of the
underlying circumstances from which the informant concluded' that
relevant evidence might be discovered, and"

															"some of the underlying circumstances from which the officer
concluded that the informant, whose identity need not be disclosed,
. . . was 'credible,' or his information 'reliable.'" Id. at 378 U. S. 114 .
Because it is the magistrate who must determine independently
whether there is probable cause, Johnson v. United States, 333 U. S. 10 , 333 U. S. 13 -14
(1948); Jones v. United States, 362 U.
S. 257 , 362 U. S.
270 -271 (1960), it would be an unthinkable imposition
upon his authority if a warrant affidavit, revealed after the fact
to contain a deliberately or recklessly false statement, were to
stand beyond impeachment.

															In saying this, however, one must give cognizance to competing
values that lead us to impose limitations. They perhaps can best be
addressed by noting the arguments of respondent and others against
allowing veracity challenges. The arguments are several:

															First, respondent argues that the exclusionary rule, created in Weeks v. United States, Page 438 U. S. 166 personal constitutional right, but only a judicially created
remedy extended where its benefit as a deterrent promises to
outweigh the societal cost of its use; that the Court has declined
to apply the exclusionary rule when illegally seized evidence is
used to impeach the credibility of a defendant's testimony, Walder v. United States, 347 U. S. 62 (1954), is used in a grand jury proceeding, United States v.
Calandra, 414 U. S. 338 (1974), or is used in a civil trial, United States v.
Janis, 428 U. S. 433 (1976); and that the Court similarly has restricted application of
the Fourth Amendment exclusionary rule in federal habeas corpus
review of a state conviction. See Stone v. Powell, 428 U. S. 465 (1976). Respondent argues that applying the exclusionary rule to
another situation -- the deterrence of deliberate or reckless
untruthfulness in a warrant affidavit -- is not justified for many
of the same reasons that led to the above restrictions; interfering
with a criminal conviction in order to deter official misconduct is
a burden too great to impose on society. Second, respondent argues
that a citizen's privacy interests are adequately protected by a
requirement that applicants for a warrant submit a sworn affidavit
and by the magistrate's independent determination of sufficiency
based on the face of the affidavit. Applying the exclusionary rule
to attacks upon veracity would weed out a minimal number of
perjurious government statements, says respondent, but would
overlap unnecessarily with existing penalties against perjury,
including criminal prosecutions, departmental discipline for
misconduct, contempt of court, and civil actions. Third, it is
argued that the magistrate already is equipped to conduct a fairly
vigorous inquiry into the accuracy of the factual affidavit
supporting a warrant application. He may question the affiant, or
summon other persons to give testimony at the warrant proceeding.
The incremental gain from a post-search adversary proceeding, it is
said, would not be great. Page 438 U. S. 167 Fourth, it is argued that it would unwisely diminish the
solemnity and moment of the magistrate's proceeding to make his
inquiry into probable cause reviewable in regard to veracity. The
less final, and less deference paid to, the magistrate's
determination of veracity, the less initiative will he use in that
task. Denigration of the magistrate's function would be imprudent
insofar as his scrutiny is the last bulwark preventing any
particular invasion of privacy before it happens.

															Fifth, it is argued that permitting a post-search evidentiary
hearing on issues of veracity would confuse the pressing issue of
guilt or innocence with the collateral question as to whether there
had been official misconduct in the drafting of the affidavit. The
weight of criminal dockets, and the need to prevent diversion of
attention from the main issue of guilt or innocence, militate
against such an added burden on the trial courts. And if such
hearings were conducted routinely, it is said, they would be
misused by defendants as a convenient source of discovery.
Defendants might even use the hearings in an attempt to force
revelation of the identity of informants.

															Sixth and finally, it is argued that a post-search veracity
challenge is inappropriate because the accuracy of an affidavit, in
large part, is beyond the control of the affiant. An affidavit may
properly be based on hearsay, on fleeting observations, and on tips
received from unnamed informants whose identity often will be
properly protected from revelation under McCray v.
Illinois, 386 U. S. 300 (1967).

															None of these considerations is trivial. Indeed, because of
them, the rule announced today has a limited scope, both in regard
to when exclusion of the seized evidence is mandated and when a
hearing on allegations of misstatements must be accorded. But
neither do the considerations cited by respondent and others have a
fully controlling weight; we conclude that they are insufficient to
justify an absolute ban on post-search impeachment of
veracity. On this side of the balance, also, there are pressing
considerations: Page 438 U. S. 168 First, a at ban on impeachment of veracity could denude the
probable cause requirement of all real meaning. The requirement
that a warrant not issue "but upon probable cause, supported by
Oath or affirmation," would be reduced to a nullity if a police
officer was able to use deliberately falsified allegations to
demonstrate probable cause, and, having misled the magistrate, then
was able to remain confident that the ploy was worthwhile. It is
this specter of intentional falsification that, we think, has
evoked such widespread opposition to the flat nonimpeachment rule
from the commentators, [ Footnote
7 ] from the American Law Institute in its Model Code of
Pre-Arraignment Procedure, § SS290.3(1) (Prop.Off.Draft 1975), from
the federal courts of appeals, and from state courts. On occasion,
of course, an instance of deliberate falsity will be exposed and
confirmed without a special inquiry either at trial, see United
States ex rel. Petillo v. New Jersey, 400 F.
Supp. 1152 , 1171-1172 (NJ 1975), vacated and remanded by
order sub nom. Alanese v. Yeager, 541 F.2d 275 (CA3 1976), or
at a hearing on the sufficiency of the affidavit, cf. United
States v. Upshaw, 48 F.2d 1218, 1221-1222 Page 438 U. S. 169 (CA5 1971), cert denied, 405 U.S. 934 (1972). A flat
nonimpeachment rule would bar reexamination of the warrant even in
these cases.

															Second, the hearing before the magistrate not always will
suffice to discourage lawless or reckless misconduct. The
pre-search proceeding is necessarily ex parte, since the
subject of the search cannot be tipped off to the application for a
warrant, lest he destroy or remove evidence. The usual reliance of
our legal system on adversary proceedings itself should be an
indication that an ex parte inquiry is likely to be less
vigorous. The magistrate has no acquaintance with the information
that may contradict the good faith and reasonable basis of the
affiant's allegations. The pre-search proceeding will frequently be
marked by haste, because of the understandable desire to act before
the evidence disappears; this urgency will not always permit the
magistrate to make an extended independent examination of the
affiant or other witnesses.

															Third, the alternative sanctions of a perjury prosecution,
administrative discipline, contempt, or a civil suit are not likely
to fill the gap. Mapp v. Ohio implicitly rejected the
adequacy of these alternatives. Mr. Justice Douglas noted this in
his concurrence in Mapp, 367 U.S. at 367 U. S. 670 ,
where he quoted from Wolf v. Colorado, 338 U. S.
25 , 338 U. S. 42 (1949):

															"'self-scrutiny is a lofty ideal, but its exaltation reaches new
heights if we expect a District Attorney to prosecute himself or
his associates for well meaning violations of the search and
seizure clause during a raid the District Attorney or his
associates have ordered.'"

															Fourth, allowing an evidentiary hearing, after a suitable
preliminary proffer of material falsity, would not diminish the
importance and solemnity of the warrant-issuing process. It is the ex parte nature of the initial hearing, rather than the
magistrate's capacity, that is the reason for the review. A
magistrate's determination is presently subject to review before
trial as to sufficiency without any undue interference Page 438 U. S. 170 with the dignity of the magistrate's function. Our reluctance
today to extend the rule of exclusion beyond instances of
deliberate misstatements, and those of reckless disregard, leaves a
broad field where the magistrate is the sole protection of a
citizen's Fourth Amendment rights, namely, in instances where
police have been merely negligent in checking or recording the
facts relevant to a probable cause determination.

															Fifth, the claim that a post-search hearing will confuse the
issue of the defendant's guilt with the issue of the State's
possible misbehavior is footless. The hearing will not be in the
presence of the jury. An issue extraneous to guilt already is
examined in any probable cause determination or review of probable
cause. Nor, if a sensible threshold showing is required and
sensible substantive requirements for suppression are maintained,
need there be any new large-scale commitment of judicial resources;
many claims will wash out at an early stage, and the more
substantial ones in any event would require judicial resources for
vindication if the suggested alternative sanctions were truly to be
effective. The requirement of a substantial preliminary showing
should suffice to prevent the misuse of a veracity hearing for
purposes of discovery or obstruction. And because we are faced
today with only the question of the integrity of the affiant's
representations as to his own activities, we need not decide, and
we in no way predetermine, the difficult question whether a
reviewing court must ever require the revelation of the identity of
an informant once a substantial preliminary showing of falsity has
been made. McCray v. Illinois, 386 U.
S. 300 (1967), the Court's earlier disquisition in this
area, concluded only that the Due Process Clause of the Fourteenth
Amendment did not require the State to expose an informant's
identity routinely, upon a defendant's mere demand, when there was
ample evidence in the probable cause hearing to show that the
informant was reliable and his information credible.

															Sixth and finally, as to the argument that the exclusionary Page 438 U. S. 171 rule should not be extended to a "new" area, we cannot regard
any such extension really to be at issue here. Despite the deep
skepticism of Members of this Court as to the wisdom of extending
the exclusionary rule to collateral areas, such as civil or grand
jury proceedings, the Court has not questioned, in the absence of a
more efficacious sanction, the continued application of the rule to
suppress evidence from the State's case where a Fourth Amendment
violation has been substantial and deliberate. See Brewer v.
Williams, 430 U. S. 387 , 430 U. S. 422 (1977) (BURGER, C.J., dissenting); Stone v. Powell, 428
U.S. at 428 U. S. 538 (WHITE, J., dissenting). We see no principled basis for
distinguishing between the question of the sufficiency of an
affidavit, which also is subject to a post-search reexamination,
and the question of its integrity. IV In sum, and to repeat with some embellishment what we stated at
the beginning of this opinion: there is, of course, a presumption
of validity with respect to the affidavit supporting the search
warrant. 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. There must be allegations of
deliberate falsehood or of reckless disregard for the truth, and
those allegations must be accompanied by an offer of proof. They
should point out specifically the portion of the warrant affidavit
that is claimed to be false; and they should be accompanied by a
statement of supporting reasons. Affidavits or sworn or otherwise
reliable statements of witnesses should be furnished, or their
absence satisfactorily explained. Allegations of negligence or
innocent mistake are insufficient. The deliberate falsity or
reckless disregard whose impeachment is permitted today is only
that of the affiant, not of any nongovernmental informant. Finally,
if these requirements are met, and if, when material that is the
subject of the alleged falsity or reckless Page 438 U. S. 172 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. [ Footnote
8 ] On the other hand, if the remaining content is insufficient,
the defendant is entitled, under the Fourth and Fourteenth
Amendments, to his hearing. Whether he will prevail at that hearing
is, of course, another issue.

															Because of Delaware's absolute rule, its courts did not have
occasion to consider the proffer put forward by petitioner Franks.
Since the framing of suitable rules to govern proffers is a matter
properly left to the States, we decline ourselves to pass on
petitioner's proffer. The judgment of the Supreme Court of Delaware
is reversed, and the case is remanded for further proceedings not
inconsistent with this opinion. It is so ordered. | 438
U.S. 154 appa| APPENDIX A TO OPINION OF THE COURT J. P. COURT # 7

															IN THE MATTER OF: Jerome Franks, B/M, DOB: 10/9/54 and 222 S.
Governors Ave., Apt. #3, Dover, Delaware. A two room apartment
located on the South side, second floor, of a white block building
on the west side of S. Governors Avenue, Between Loockerman Street
and North Street, in the City of Dover. The ground floor of this
building houses Wayman's Barber Shop.

															STATE OF DELAWARE)

															) SS:

															COUNTY OF KENT J )

															Be it remembered that on this 9th day of March A. D. Page 438 U. S. 173 1976 before me John Green, personally appeared Det. Ronald R.
Brooks and Det. Larry Gray of the Dover Police Department who being
by me duly sworn depose and say:

															That they have reason to believe and do believe that in the 222
S. Governors Avenue, Apartment #3, Dover, Delaware. A two room
apartment located on the south side second floor of a white block
building on the west side of S. Governors Avenue between Loockerman
Street and North Street in the City of Dover. The ground floor of
this building houses Wayman's Barber Shop the occupant of which is
Jerome Franks there has been and/or there is now located and/or
concealed certain property in said house, place, conveyance and/or
on the person or persons of the occupants thereof, consisting of
property, papers, articles, or things which are the instruments of
criminal offense, and/or obtained in the commission of a crime,
and/or designated to be used in the commission of a crime, and not
reasonably calculated to be used for any other purpose and/or the
possession of which is unlawful, papers, articles, or things which
are of an evidentiary nature pertaining to the commission of a
crime or crimes specified therein and in particular, a white knit
thermal undershirt; a brown 3/4 length leather jacket with a
tie-belt; a pair of black mens pants; a dark colored knit hat; a
long thin bladed knife or other instruments or items relating to
the crime.

															Articles, or things were, are, or will be possessed and/or used
in violation of Title 11, Sub-Chapter D, Section 763, Delaware Code
in that [see attached probable cause page].

															Wherefore, affiants pray that a search warrant may be issued
authorizing a search of the aforesaid 222 S. Governors Avenue,
Apartment #3, Dover, Delaware. A two room apartment located on the
south side second floor of a white block building on the west side
of S. Governors Avenue Page 438 U. S. 174 between Loockerman St. and North Street, in the City of Dover in
the manner provided by law.

															/s/ Det. Ronald R. Brooks

															Affiant

															/s/ Det. Larry D. Gray

															Affiant

															SWORN to (or affirmed) and subscribed before me this 9th day of
March A. D. 1976.

															/s/ John [illegible] Green

															Judge Ct 7

															The facts tending to establish probable cause for the issuance
of this search warrant are:

															1. On Saturday, 2/28/76, Brenda L. B. ___ , W/F/15, reported to
the Dover Police Department that she had been kidnapped and
raped.

															2. An investigation of this complaint was conducted by Det.
Boyce Failing of the Dover Police Department.

															3. Investigation of the aforementioned complaint revealed that
Brenda B. ___, while under the influence of drugs, was taken to 222
S. Governors Avenue, Apartment 3, Dover, Delaware.

															4. Investigation of the aforementioned complaint revealed that
222 S. Governors Avenue, Apartment #3, Dover, Delaware, is the
residence of Jerome Franks, B/M DOB: 10/9/54.

															5. Investigation of the aforementioned complaint revealed that
on Saturday, 2/2[8]/76, Jerome Franks did have sexual contact with
Brenda B. ___ without her consent.

															6. On Thursday, 3/4/76 at the Dover Police Department, Brenda B.
revealed to Det. Boyce Failing that Jerome Franks was the person
who committed the Sexual Assault against her.

															7. On Friday, 3/5/76, Jerome Franks was placed under Page 438 U. S. 175 arrest by.Cpl. Robert McClements of the Dover Police Department,
and charged with Sexual Misconduct.

															8. On 3/5/76 at Family Court in Dover, Delaware, Jerome Franks
did, after being arrested on the charge of Sexual Misconduct,
ma[k]e a statement to Cpl. Robert McClements, that he thought the
charge was concerning Cynthia Bailey not Brenda B.

															9. On Friday, 3/5/76, Cynthia C. Bailey, W/F/21 of 132 North
Street, Dover, Delaware, did report to Dover Police Department that
she had been raped at her residence during the night.

															10. Investigation conducted by your affiant on Friday, 3/5/76,
revealed the perpetrator of the crime to be an unknown black male,
approximately 5'7", 150 lbs., dark complexion, wearing white
thermal undershirt, black pants with a belt having a silver or gold
buckle, a brown leather 3/4 length coat with a tie belt in the
front, and a dark knit cap pulled around the eyes.

															11. Your affiant can state, that during the commission of this
crime, Cynthia Bailey was forced at knife point and with the threat
of death to engage in sexual intercourse with the perpetrator of
the crime.

															12. Your affiant can state that entry was gained to the
residence of Cynthia Bailey through a window located on the east
side of the residence.

															13. Your affiant can state that the residence of Jerome Franks
is within a very short distance and direct sight of the residence
of Cynthia Bailey.

															14. Your affiant can state that the description given by Cynthia
Bailey of the unknown black male does coincide with the description
of Jerome Franks.

															15. 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. Page 438 U. S. 176 16. On Tuesday, 3/9/76, 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.

															17. On Tuesday, 3/9/76, 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.

															18. Your affiant can state that a check of official records
reveals that in 1971 Jerome Franks was arrested for the crime of
rape and subsequently convicted with Assault with intent to
Rape.

															| 438
U.S. 154 appb| APPENDIX B TO OPINION OF THE COURT States permitting veracity challenges include:

															bwm:

															Alabama: McConnell v. State, 48 Ala.App. 523, 526-528,
266 So.2d

															328, 330-333 (Crim.App.), cert. denied, 289 Ala.
746, 266 So. 2d
334 (1972).

															Alaska: Davenport v. State, 515 P.2d 377 ,
380 (1973).

															Arizona: State v. Payne, 25 Ariz. App. 454, 456, 544
P.2d 671,

															673 (1976); cf. State v. Pike, 113 Ariz. 511,
513-514, 557 P.2d 1068 ,
1070-1071 (1976) (en banc).

															Colorado: People v. Arnold, 186 Colo. 372, 377-378, 527 P.2d
806 ,

															809 (1974) (en banc).

															Iowa: State v. Boyd, 224 N.W.2d 609 ,
616 (1974) (en banc).

															Louisiana: State v. Melson, 284 So.
2d 873 , 874-875 (1973),

															limiting State v. Anselmo, 260 La. 306, 313-322,
256

															So.2d 98, 101-104 (1971), cert. denied, 407 U.S.
911

															(1972).

															Massachusetts: Commonwealth v. Reynolds, 374 Mass. 142,
149-151, 370

															N.E.2d 1375, 1379-1380 (1977). Page 438 U. S. 177 Minnesota: State v. Luciow, 308 Minn. 6, 10-13, 240 N.W.2d
833 ,

															837-838 (1976) (en banc).

															Montana: State v. Nanofl, 160 Mont. 344, 348, 502 P.2d
1138,

															1140 (1972), sub silentio overruling State v.
English, 71 Mont. 343, 350, 229 P. 727, 729 (1924).

															New Hampshire: State v. Spero, 177 N.H.199, 204-205,
371 A.2d 1155,

															1158 (1977) (based on State Constitution).

															Pennsylvania: Commonwealth v. Hall, 451 Pa. 201, 204,
302 A.2d 342,

															344 (1973).

															South Carolina: State v. Sachs, 264 S.C. 541, 556, 216 S.E.2d
501 ,

															509 (1975).

															Vermont: State v. Dupaw, 134 Vt. 451, 452-453, 365 A.2d 967 ,
968

															(1976).

															Washington: State v. Lehman, 8 Wash. App. 408, 414, 506
P.2d 1316,

															1321 (1973) (Div. 3); State v. Goodlow, 11
Wash.App.

															533, 535, 523 P.2d 1204, 1206 (1974) (Div. 1); cf. State v. Manly, 85 Wash. 2d
120 , 125, 530 P.2d
306 , 309 (en banc), cert. denied, 423 U.S. 855 (1975).

															ewm:

															Five States, whose practice is dictated or may be dictated by
statute, also permit veracity challenges:

															bwm:

															California: Theodor v. Superior Court, 8 Cal. 3d 77 ,
90, 100-101, 501

															P.2d 234, 243, 251 (1972) (en banc); see Cal.Penal
Code

															Ann. §§ 1538.5, 1539, 1540 (West 1970 and Supp. 1978).

															New York: People v. Alfinito, 16 N.Y.2d 181, 185-186,
211 N.E.2d

															644, 646 (1965); People v. Slaughter, 37 N.Y.2d 596,
600,

															338 N.E.2d 622, 624 (1975); see N.Y.Code Crim.Proc.

															§§ 813-c, 813, 813-e (McKinney Page 438 U. S. 178 Supp.

															1970-1971), superseded by N.Y.Crim.Proc.Law, Art. 710

															(McKinney Supp. 1977-1978).

															North Carolina: See N.C.Gen.Stat. § 15A-978 (1978).

															Oregon: State v. Wright, 266 Ore. 163, 168-169, n. 3,
511 P.2d

															1223, 1225-1226, n. 3 (1973) (en banc); see Ore.Rev.Stat.

															§ 133.693 (1977).

															Utah: State v. Bankhead, 30 Utah 2d 135, 138, 514 P.2d 800 ,
802

															(1973); see Utah Code Ann. §§ 77-517, 77-54-18
(1953).

															ewm:

															Two other States are more doubtful, but seem to allow veracity
challenges:

															bwm:

															Michigan: People v. Burt, 236 Mich. 62, 74, 210 N.W.
97, 101 (1926).

															New Mexico: State v. Baca, 84 N.M. 513, 515, 505 P.2d
856 , 858 (1973)

															(dictum).

															ewm:

															The following States have disposed of particular veracity
challenges on the ground the affidavits were in fact not false, or
that any misstatements were immaterial or unintentional, or were
not by the affiant himself:

															bwm:

															Florida: McDouall v. State, 316 So. 2d 624, 625
(Dist.Ct.App. 1975).

															Georgia: Williams v. State, 232 Ga. 213, 213-214, 205 S.E.2d
859 ,

															860 (1974); Lee v. State, 239 Ga. 769, 773-774, 238
S.E.2d

															852, 856 (1977); Bire v. State, 143 Ga.App. 632, 633,
239

															S.E.2d 395, 397 (1977).

															Indiana: Moore v. State, 159 Ind.App. 381, 385-386, 307 N.E.2d
92 ,

															94-95 (1974); Grzesiousski v. State, 168 Ind.App.
318,

															328, 343 N.E.2d
305 , 312 (1976); but see Seager v. State, 200 Ind. 579, 582, 164 N.E. 274, 275 (1928). Page 438 U. S. 179 Ohio: . State v. Dodson, 43 Ohio App.2d 31, 35-36, 332
N.E.2d 371,

															374-375 (1974).

															Wisconsin: Scott v. State, 73 Wis.2d 504, 511-512, 243 N.W.2d
215 ,

															219 (1976). Cf. Maine: State v. Koucoules, 343 A.2d
860 , 865 n. 3 (1974).

															ewm:

															Eleven States flatly prohibit veracity challenges:

															bwm:

															Arkansas: Liberto v. State, 248 Ark. 350, 356-357, 451 S.W.2d
464 ,

															468 (1970) (alternative holding); cf. Powell v.
State, 260 Ark. 381, 383, 540 S.W.2d
1 , 2 (1976).

															Connecticut: State v. Williams, 169 Conn.322, 327-329,
363 A.2d 72,

															76-77 (1975).

															Illinois: People v. Bak, 45 Ill. 2d
140 , 144 146, 258 N.E.2d
341 ,

															343-344, cert. denied, 400 U.S. 882 (1970); People
v. Stansberry, 47 Ill. 2d
541 , 544, 268 N.E.2d
431 , 433, cert. denied, 404 U.S. 873 (1971).

															Kansas: State v. Lamb, 209 Kan. 453, 467-468, 497 P.2d 275 ,
287

															(1972); State v. Sanders, 222 Kan. 189, 194-196, 563
P.2d

															461, 466-467 (alternative holding), cert. denied, 434

															U.S. 833 (1977).

															Kentucky: Caslin v. Commonwealth, 491
S.W.2d 832 , 834 (1973).

															Maryland: Smith v. State, 191 Md. 329, 334-336, 62 A.2d
287,

															289-290 (1948), cert. denied, 336 U.S. 925 (1949); Tucker v. State, 244 Md. 488, 499-500, 224 A.2d
111,

															117-118 (1966), cert. denied, 386 U.S. 1024 (1967); Dawson v. State, 11 Md.App. 694, 713-715, 276 A.2d 680 ,

															690-691 (1971).

															Mississippi: Wood v. State, 322 So. 2d
462 , 465 (1975). Page 438 U. S. 180 New Jersey: State v. Petillo, 61 N.J. 165, 173-170, 293 A.2d
649 ,

															653-656 (1972), cert. denied, 410 U.S. 945 (1973); but see 61 N.J. at 178 n. 1, 293 A.2d at 656 n. 1.

															Oklahoma: Brown v. State, 565
P.2d 697 (Crim.App. 1977), overruling McCaskey v. State, 534 P.2d
1309 , 1311-1312 (Crim.App.

															1975), and Henderson v. State, 490
P.2d 786 , 789 (Crim.

															App. 1971), and reaffirming Gaddis v.
State, 447
P.2d 42 (Crim.App. 1968).

															Tennessee: Owens v. State, 217 Tenn. 544, 553, 399
S.W.2d 507 , 511

															(1965); Poole v. State, 4 Tenn.Crim. 41, 53-54, 467

															S.W.2d 826, 832, cert. denied, ibid. (1971).

															Texas: Phenix v. State, 488
S.W.2d 759 , 765 (Crim.App. 1972); Oubre v. State, 542
S.W.2d 875 , 877 (Crim.App. 1976).

															ewm:

															Two States have prohibited challenges that were directed
seemingly against the conclusory nature of the affidavits, rather
than their veracity.

															bwm:

															Missouri: State v. Bruioni, 320 Mo. 202, 206, 7 S.W.2d
262, 263

															(1928).

															Rhode Island: State v. Seymour, 46 R.I. 257, 260, 126
A. 755, 756

															(1924), partially overruled, State v. LeBlanc, 100
R.I.

															523, 528-529, 217
A.2d 471 , 474 (1966); but see State v. Cofone, 112 R.I. 760, 766-767, 315
A.2d 752 ,

															755-756 (1974)

															ewm:

															[ Footnote 1 ]

															The affidavit is reproduced as 438
U.S. 154 appa|>Appendix A to this opinion. Post at
172.

															[ Footnote 2 ]

															The references in paragraphs 15 and 16 of the warrant
affidavit's probable cause page to "James Williams" appear to have
been intended as references to James D. Morrison, who was
petitioner's supervisor at the Youth Center. Tr. 269. This
misapprehension on the part of the State continued until shortly
before trial. Eleven days prior to trial, the prosecution requested
the Clerk of the Kent County Superior Court to summon "James
Williams, Delaware Youth Center," for petitioners trial. In his
return on the summons, Record Doc. No. 16, the Kent County Sheriff
stated that he "[s]erved the within summons upon . . . James
Williams (Morrison)." The summons actually delivered was made out
in the name of James Morrison.

															[ Footnote 3 ]

															It appears this is no longer the majority rule among the States. Compare Comment, 7 Seton Hall L.Rev. 827, 844 (1976)
(about half of the States have addressed the issue, and the weight
of authority is "slightly in favor" of permitting veracity
challenges), with North Carolina v. Wrenn, 417 U.S. 973
(1974) (WHITE, J., dissenting from denial of certiorari) (majority
of state decisions prohibit subsequent impeachment of an
affidavit).

															By our count, 19 States, and perhaps as many as 21, permit
veracity challenges; 5 of these apparently rely on statutory
provisions in so holding. Five States have disposed of particular
veracity challenges on the ground there was no misstatement, or
that any misstatement was immaterial or unintentional, without
opining what would be done when there is a deliberate and material
misrepresentation. There are now only 11 States that prohibit
veracity challenges outright. Another two have barred impeachment
challenges that seemed directed at the conclusory nature of
affidavit allegations rather than at their veracity.

															The case law is detailed in 438
U.S. 154 appb|>Appendix B. Post at 176.

															[ Footnote 4 ]

															This reasoning is misplaced. The Federal Courts of Appeals
decisions allowing a defendant to challenge the veracity of a
warrant affidavit rest on a constitutional footing. See United
States v. Belculfine, 508 F.2d 58, 61, 63 (CA1 1974); United States v. Dunnings, 425 F.2d 836, 839-840 (CA2
1969), cert. denied, 397 U.S. 1002 (1970); United
States v. Armocida, 515 F.2d 29, 41 (CA3), cert. denied
sub nom. Gazal v. United States, 423 U.S. 858 (1975); United States v. Lee, 540 F.2d 1205, 1208-1209 (CA4), cert. denied, 429 U.S. 894 (1976); United States v.
Thomas, 489 F.2d 664, 668, 671 (CA5 1973), cert.
denied, 423 U.S. 844 (1975); United States v. Luna, 525 F.2d 4, 8 (CA6 1975), cert. denied, 424 U.S. 965
(1976); United States v. Carmichael, 489 F.2d 983, 988-989
(CA7 1973) (en banc); United States v. Marihart, 492 F.2d
897, 898 (CA8), cert. denied, 419 U.S. 827 (1974); United States v. Damitz, 495 F.2d 50, 54-56 (CA9 1974); United States v. Harwood, 470 F.2d 322, 324-325 (CA10
1972).

															Of all the Federal Courts of Appeals, only one now apparently
refrains from permitting challenges to affidavit veracity. See
United States v. Watts, 176 U.S.App.D.C. 314, 317-318 n. 5,
540 F.2d 1093, 1096-1097 n. 5 (1976); United States v.
Branch, 178 U.S.App.D.C. 99, 102 n. 2, 545 F.2d 177, 180 n. 2
(1976).

															[ Footnote 5 ]

															Franks did not raise in his petition the issue of his Miranda challenge to the courthouse statement given to
police and the use of that statement in the warrant affidavit. The
propriety of the trial court's refusal to hear testimony on that
subject is therefore not before us. It also appears that Franks did
not take that issue to the Supreme Court of Delaware. See Opening Brief for Appellant, No. 259, 1976 (Del.Sup.Ct.).

															[ Footnote 6 ]

															The Rugendorf affidavit, sworn to by FBI Special Agent
Moore, contained two alleged inaccuracies: a double hearsay
statement that petitioner Samuel Rugendorf was the manager of
Rugendorf Brothers Meat Market, and a double hearsay statement that
he was associated with his brother, Leo, in the meat business. As
to the second, the affidavit stated that a confidential informant
told FBI Special Agent McCormick about the Rugendorf brothers'
association, and McCormick told affiant Moore. As to the first, the
affidavit stated that the information was given by Chicago Police
Officer Kelleher to Special Agent McCormick, who in turn relayed it
to affiant Moore. Kelleher testified that he did not so inform
McCormick, but the petitioner in Rugendorf had failed to pursue the
discrepancy: he did not seek a deposition from McCormick, who was
in the hospital at the time of trial, and did not seek a
postponement to enable McCormick to be present. 376 U.S. at 376 U. S. 533 n. 4. In characterizing the affidavit in Rugendorf as
raising no question of integrity, the Court took as its premise
that police could not insulate one officer's deliberate
misstatement merely by relaying it through an officer-affiant
personally ignorant of its falsity.

															[ Footnote 7 ]

															Mascolo, Impeaching the Credibility of Affidavits for Search
Warrants: Piercing the Presumption of Validity, 44 Conn.Bar J. 9,
19, 25-28 (1970); Kipperman, Inaccurate Search Warrant Affidavits
as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825, 830-832
(1971); Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of
Police Perjury, 1971 U.Ill Law Forum 405, 456; Forkosh, The
Constitutional Right to Challenge the Content of Affidavits in
Warrants Issued Under the Fourth Amendment, 34 Ohio St.L.J. 297,
306, 308, 340 (1973); Sevilla, The Exclusionary Rule and Police
Perjury, 11 San Diego L.Rev. 839, 869 (1974); Herman, Warrants for
Arrest or Search: Impeaching the Allegations of a Facially
Sufficient Affidavit., 36 Ohio St.L.J. 721, 738-739, 750 (1975);
Note, 15 Buffalo L.Rev. 712, 716-717 (1966); Note, 51 Cornell L. Q.
822, 825-826 (1966); Note, 34 Ford.L.Rev. 740, 745 (1966); Note, 67
Colum.L.Rev. 1529, 1530-1531 (1967); Comment, 19 UCLA L.Rev. 96,
108, 146 (1971); Comment, 63 J.Crim.L., C. & P.S. 41, 48, 50
(1972); Note, 23 Drake L.Rev. 623, 638-639 (1974); Comment, 7 Seton
Hall L.Rev. 827, 859-860 (1976).

															[ Footnote 8 ]

															Petitioner conceded that, if what is left is sufficient to
sustain probable cause, the inaccuracies are irrelevant. Tr. of
Oral Arg. 3, 13. Petitioner also conceded that, if the warrant
affiant had no reason to believe the information was false, there
was no violation of the Fourth Amendment. Id. at
16-17.

															MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.

															The Court's opinion in this case carefully identifies the
factors which militate against the result which it reaches, and
emphasizes their weight in attempting to limit the
circumstances Page 438 U. S. 181 under which an affidavit supporting a search warrant may be
impeached. I am not ultimately persuaded, however, that the Court
is correct as a matter of constitutional law that the impeachment
of such an affidavit must be permitted under the circumstances
described by the Court, and I am thoroughly persuaded that the
barriers which the Court believes that it is erecting against
misuse of the impeachment process are frail indeed. I The Court's reliance on Johnson v. United States, 333 U. S. 10 (148),
for the proposition that a determination by a neutral magistrate is
a prerequisite to the sufficiency of an application for a warrant
is obviously correct. In that case, the Court said:

															"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime." Id. at 333 U. S.
13 -14.

															The notion that there may be incorrect or even deliberately
falsified information presented to a magistrate in the course of an
effort to obtain a search warrant does not render the proceeding
before a magistrate any different from any other factfinding
procedure known to the law. The Court here says that

															"it would be an unthinkable imposition upon [the magistrate's]
authority if a warrant affidavit, revealed after the fact to
contain a deliberately or recklessly false statement, were to stand
beyond impeachment." Ante at 438 U. S. 165 .
I do not believe that this flat statement survives careful
analysis.

															If the function of the warrant requirement is to obtain the
determination of a neutral magistrate as to whether sufficient Page 438 U. S. 182 grounds have been urged to support the issuance of a warrant,
that function is fulfilled at the time the magistrate concludes
that the requirement has been met. Like any other determination of
a magistrate, of a court, or of countless other factfinding
tribunals, the decision may be incorrect as a matter of law. Even
if correct, some inaccurate or falsified information may have gone
into the making of the determination. But unless we are to exalt as
the ne plus ultra of our system of criminal justice the
absolute correctness of every factual determination made along the
tortuous route from the filing of the complaint or the issuance of
an indictment to the final determination that a judgment of
conviction was properly obtained, we shall lose perspective as to
the purposes of the system, as well as of the warrant requirement
of the Fourth and Fourteenth Amendments. Much of what Mr. Justice
Harlan said in his separate opinion in Mackey v. United
States, 401 U. S. 667 (1971), with respect to collateral relief from a criminal
conviction is likewise applicable to collateral impeachment of a
search warrant:

															"At some point, the criminal process, if it is to function at
all, must turn its attention from whether a man ought properly to
be incarcerated to how he is to be treated once convicted. If law,
criminal or otherwise, is worth having and enforcing, it must at
some time provide a definitive answer to the questions litigants
present, or else it never provides an answer at all. Surely it is
an unpleasant task to strip a man of his freedom and subject him to
institutional restraints. But this does not mean that, in so doing,
we should always be halting or tentative. No one, not criminal
defendants, not the judicial system, not society as a whole, is
benefited by a judgment providing a man shall tentatively go to
jail today, but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation on issues
already resolved. " Page 438 U. S. 183 "A rule of law that fails to take account of these finality
interests would do more than subvert the criminal process itself.
It would also seriously distort the very limited resources society
has allocated to the criminal process. While men languish in jail,
not uncommonly for over a year, awaiting a first trial on their
guilt or innocence, it is not easy to justify expending substantial
quantities of the time and energies of judges, prosecutors, and
defense lawyers litigating the validity under present law of
criminal convictions that were perfectly free from error when made
final. [Citation omitted.] This drain on society's resources is
compounded by the fact that issuance of the habeas writ compels a
State that wishes to continue enforcing its laws against the
successful petitioner to relitigate facts buried in the remote past
through presentation of witnesses whose memories of the relevant
events often have dimmed. This very act of trying stale facts may
well, ironically, produce a second trial no more reliable as a
matter of getting at the truth than the first." Id. at 401 U. S.
690 -691.

															I am quite confident that, if our system of justice were not
administered by judges who were once lawyers, it might well be less
satisfactory than it now is. But I am equally confident that one
improvement which would manifest itself as a result of such a
change would be a willingness, reflected in almost all callings in
our society except lawyers, to refrain from constant relitigation,
whether in the form of collateral attack, appeal, retrial, or
whatever, of issues that have originally been decided by a
competent authority.

															It would be extraordinarily troubling in any system of criminal
justice if a verdict. or finding of guilt, later conclusively shown
to be based on false testimony, were to result in the incarceration
of the accused notwithstanding this fact. But the Court's reference
to the "unthinkable imposition" of not allowing the impeachment of
an affiant's testimony in support Page 438 U. S. 184 of a search warrant is a horse of quite another color.
Particularly in view of the many hurdles which the prosecution must
surmount to ultimately obtain and retain a finding of guilt in the
light of the many constitutional safeguards which surround a
criminal accused, it is essential to understand the role of a
search warrant in the process which may lead to the conviction of
such an accused. The warrant issued on impeachable testimony has,
by hypothesis, turned up incriminating and admissible evidence to
be considered by the jury at the trial. The fact that it was
obtained by reason of an impeachable warrant bears not at all on
the innocence or guilt of the accused. The only conceivable harm
done by such evidence is to the accused's rights under the Fourth
and Fourteenth Amendments, which have nothing to do with his guilt
or innocence of the crime with which he is charged.

															Given the definitive exposition of the warrant requirement
quoted above from Johnson v. United States, 333 U.S. at 333 U. S. 13 -14,
it seems to me it would be quite reasonable for this Court,
consistently with the Fourth and Fourteenth Amendments, to adopt
any one of three positions with respect to the impeachability of a
search warrant which had been in fact issued by a neutral
magistrate who satisfied the requirements of Shadwick v.
Tampa, 407 U. S. 345 (1972).

															First, it could decide that the warrant requirement was
satisfied when such a magistrate had been persuaded, and allow no
further collateral attack on the warrant. In Aguilar v.
Texas, 378 U. S. 108 (1964), the Court, in reliance on Giordenello v. United
States, 357 U. S. 480 (1958), a case concededly decided pursuant to Fed.Rule Crim.Proc.
4, nonetheless held that the determination by a magistrate that the
affidavit submitted to him made out "probable cause" for purposes
of the Fourth and Fourteenth Amendments was subject to later
judicial review as to the sufficiency of the affidavit. This rule
was later reaffirmed in Spinelli v. United States, 393 U. S. 410 (1969). The Court has thus, for more than a decade, Page 438 U. S. 185 rejected the first possible stopping place in judicial
reexamination of affidavits in support of warrants, and held that
the legal determination as to probable cause was subject to
collateral attack. While this conclusion does not seem to me to
flow inexorably from the Fourth Amendment, I think that it makes a
good deal of sense in light of the fact that a magistrate need not
be a trained lawyer, see Shadwick, supra, and therefore
may not be versed in the latest nuances of what is or what is not
"probable cause" for purposes of the Fourth Amendment.

															But to allow collateral examination of an affidavit in support
of a warrant on a legal ground such as that is quite different from
the rejection of the second possible stopping place as the Court
does today. Magistrates need not be lawyers, but lawyers have no
monopoly on determining whether or not an affiant who appears
before them is or is not telling the truth. Indeed, a magistrate,
whose time may be principally spent in conducting preliminary
hearings and trying petty offenses, may have every bit as good a
feel for the veracity of a particular witness as a judge of a court
of general jurisdiction.

															True, a warrant is issued ex parte, without an
opportunity for the person whose effects are to be seized to
impeach the testimony of the affiant. The proceeding leading to the
issuance of a warrant is, therefore, obviously less reliable and
less likely to be a searching inquiry into the truth of the
affiant's statements than is a full-dress adversary proceeding. But
it is at this point that I part company with the Court in its
underlying assumption that somehow a full-dress adversary
proceeding will virtually guarantee a truthful answer to the
question of whether or not the affiant seeking the warrant
falsified his testimony. A full-dress adversary proceeding is
undoubtedly a better vehicle than an ex parte proceeding
for arriving at the truth of any particular inquiry, but it is
scarcely a guarantee of truth. Mr. Justice Jackson, in his Page 438 U. S. 186 opinion concurring in the result in Brown v. Allen, 344 U. S. 443 (1953), observed with respect to purely legal issues decided by
this Court:

															"However, reversal by a higher court is not proof that justice
is thereby better done. There is no doubt that, if there were a
super-Supreme Court, a substantial proportion of our reversals of
state courts would also be reversed. We are not final because we
are infallible, but we are infallible only because we are
final." Id. at 344 U. S.
540 .

															The same is surely true of a judge's review of the factual
determinations of a magistrate; a larger percentage of the judge's
findings as to the truth of an affiant's statement may be
objectively correct than the percentage of the magistrate's
determinations which are, but neither one is going to be 100
percent. Since, once the warrant is issued and the search is made,
the privacy interest protected by the Fourth and Fourteenth
Amendments is breached, a subsequent determination that it was
wrongfully breached cannot possibly restore the privacy interest. See United States v. Calandra, 414 U.
S. 338 (1974). Since the evidence obtained pursuant to
the warrant is, by hypothesis, relevant and admissible on the issue
of guilt, the only purpose served by suppression of such evidence
is deterrence of falsified testimony on the part of affiant in the
future. Without attempting to summarize the many cases in which
this Court has discussed the balance to be struck in such
situations, see United States v. Peltier, 422 U.
S. 531 (1975), I simply do not think the game is worth
the candle in this situation.

															As the Court's opinion points out, the other jurisdictions which
have considered this question are divided, although a majority of
them favor the result reached by the Court today. The signed
articles and student law review notes which the Court refers to in
its opinion are not there, I trust, to be considered en
bloc, or by some process of counting without weighing.
Presumably, to the extent that their reasoning Page 438 U. S. 187 commends itself to the courts which are committed to decide
these questions, that reasoning will find its way into the opinions
of those courts; to the extent that the reasoning does not so
commend itself, the piece containing the reasoning does not weigh
in the scales of decision simply because it appeared in a
periodical devoted to the discussion of legal questions. II The Court has commendably, in my opinion, surrounded the right
to impeach the affidavit relied upon to support the issuance of a
warrant with numerous limitations. My fear, and I do not think it
an unjustified one, is that these limitations will quickly be
subverted in actual practice. The Court states:

															"Nor, if a sensible threshold showing is required and sensible
substantive requirements for suppression are maintained, need there
be any new large-scale commitment of judicial resources; many
claims will wash out at an early stage, and the more substantial
ones in any event would require judicial resources for vindication
if the suggested alternative sanctions were truly to be effective.
The requirement of a substantial preliminary showing should suffice
to prevent the misuse of a veracity hearing for purposes of
discovery or obstruction." Ante at 438 U. S.
170 .

															I greatly fear that this generalized language will afford
insufficient protection against the natural tendency of ingenious
lawyers charged with representing their client's cause to
ceaselessly undermine the limitations which the Court has placed on
impeachment of the affidavit offered in support of a search
warrant. I am sure that the Court is sincere in its expressed hope
that the doctrine which it adopts will not lead to "any new
large-scale commitment of judicial resources," but, in the end, I
am led once more to echo the Page 438 U. S. 188 observation contained in another opinion of Mr. Justice
Jackson:

															"The case which irresistibly comes to mind as the most fitting
precedent is that of Julia who, according to Byron's reports,
'whispering I will ne'er consent,' -- consented.'" Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 19 (1947) (dissenting opinion).

															Since I would not "consent" even to the extent that the Court
does in its opinion, I dissent from that opinion, and would affirm
the judgment of the Supreme Court of Delaware.

Summary: The U.S. Supreme Court case Franks v. Delaware, 438 U.S. 154 (1978) dealt with the issue of whether a defendant can challenge the truthfulness of statements made in a police affidavit used to obtain a search warrant. The Court held that a defendant is entitled to an evidentiary hearing if they make a substantial preliminary showing that a false statement was knowingly or recklessly included in the warrant affidavit and if the false statement was necessary for the finding of probable cause. The Court set out specific requirements for the defendant's allegations and offer of proof to support their claim, and outlined the procedure for determining if a hearing is required and the consequences if the defendant establishes that a false statement was included in the affidavit. This case established important safeguards for defendants' Fourth Amendment rights while also balancing the need for efficient judicial proceedings.