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Your lyin' eyes

The cops did a pretty thorough job taking down Eddie Coleman for trafficking drugs.  Each of the search warrant affidavits for the two houses Eddie used is 27 paragraphs long.  The detective spends the first seven reciting his qualifications, and then gets down to business:  there's a "confidential reliable informant" who's told him that Eddie is dealing, where he's staying, and the car he's driving:  A gold Cadillac Escalade with a particular license plate number.  The cops set up a controlled buy, and sure enough, along comes a black male driving a gold Cadillac Escalade with that license number.  The deal goes down, the detective does some more checking, including running the license plate, and it comes back to Coleman.

One problem:  it turns out the detective never saw that license plate on Coleman's car, at least not before the search, which occurred on May 31, 2007.   The records of the car dealership show that Eddie had temporary tags on his car at that time, and didn't pick up his plates until over a week later.  Last week, in State v. Coleman, the 8th District said that didn't matter.

As any criminal lawyer knows, there's a world of difference between challenging a warrantless search, like your garden variety stop and frisk, and a search conducted with a warrant.  Not only do the police get the benefit of a "good-faith exception" in the latter -- even if there wasn't sufficient probable cause, the search is still good as long as the police had a good-faith basis for believing the magistrate's determination that there was -- but the trial court's review of the magistrate's conclusion is limited to deciding whether there was "substantial basis" for finding that probable cause existed.

What happens, though, if you're claiming that the allegations of the affidavit aren't true?  Up until 1978, a number of courts had held that you were out of luck:  a defendant couldn't challenge the veracity of the affiant.  The Supreme  Court changed that in Franks v. Delaware, but imposed rather rigorous requirements for doing so.  You don't get so much as a hearing on the issue unless you allege that the affiant made statements of "deliberate falsehood" or with "reckless disregard of the truth"; negligence or mistake doesn't cut it.  Any statements by anyone other than the affiant are immaterial -- if the informant lied to the cop, that's too bad.  You have to make an offer of proof as to why you believe portions of the affidavit are untrue; no "conclusory allegations," please.  Finally, if you do all that, the court still isn't required to have a hearing if, after setting aside the disputed allegations, the court finds that the affidavit would still provide probable cause for the search.

And that's what the majority in Coleman hung its hat on:  the references to the license plate were only contained in a couple of paragraphs, and if you took those out, there was still enough basis for finding probable cause.

The dissent, though, makes a pretty compelling case that excising the disputed matter isn't sufficient here.  Noting that the majority fluffs off the detective's claim about seeing the license plate as an "inaccurate statement" or a "misstatement," the dissent makes no bones about it:  "the affiant in the search warrant lied to the issuing magistrate."  (That's the judge's emphasis.)  Rather than simply requiring excision of the language regarding the license plates, this casts doubt on the entirety of the affidavit, because all of it is "affiants says this" and "affiant says that."  If he was lying about the license plate, is it hard to believe that he was lying about what the informant told him, or what the informant did, too?

Still, it's a tough call.  The majority is technically correct in its application of Franks:  you take out the material that's alleged to be untrue, and see if the affidavit still passes muster.  But that's a technical application.  I think the dissent's argument, that where it's shown the affiant unquestionably lied, it undermines the credibility of the entire affidavit, is the stronger one.  And keep in mind that at this point we're not talking about throwing out the warrant, we're simply debating whether we should have a hearing on the subject.  Much greater light on the credibility of those other allegations in the affidavit could be shed by subjecting the detective to cross-examination.

Still, both sides do a good job of covering and analyzing the legal issues.  If you've got a Franks situation, spending some time with Coleman would be a good place to start.

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