What should happen to an officer who knowingly lies to a judge to obtain a search warrant?
This question has become more than theoretical for Roderick Talley, whose apartment door was blown off its hinges and apartment searched after an officer lied in an affidavit.
Generally, before police can search someone’s home, they must obtain a warrant. To do so, an officer must submit an affidavit laying out why there is probable cause to believe evidence of a crime will be found there. In Utah, every affidavit concludes with “I declare under criminal penalty of the State of Utah that the foregoing is true and correct.”
In Talley’s case, an officer obtained a no-knock warrant to search Talley’s apartment after swearing in an affidavit that a confidential informant had purchased drugs from Talley. Crucially, the officer wasn’t just relying on the informant but swore he “observed the door open and [it] appeared that the same [informant] was having a conversation with someone inside the apartment.” The officer later admitted this was false. Actually, the confidential informant had carried a cell phone that allowed officers to hear what was going on during the purported drug buy, and officers had not personally, visually observed the transaction as claimed.
In a lawsuit brought by Talley against the officer, the District Court granted summary judgment in favor of the detective who wrote the affidavit. Essentially, the court found that Talley’s rights were not violated because even if the lie was excised from the affidavit, other information in the affidavit was sufficient to justify issuing the search warrant.
But shouldn’t there be some sort of consequence when an officer tells an outright lie in an affidavit?
Judges are not in a position to conduct their own examination into whether the information an officer puts in an affidavit is true. This gives officers an incredible amount of power because judges have to accept their statements at face value.
This incredible power should be accompanied by a heightened amount of accountability.
Some accountability measures do exist. If an officer knows a warrant shouldn’t have been issued because it was based on a lie, the evidence could be excluded. Exclusion of evidence may be frustrating to an officer, but otherwise has little direct impact on an officer.
Of greater consequence, if an officer is caught lying in an affidavit, forever after prosecutors must disclose this to defense counsel, per United States v. Giglio. This essentially spells death for an officer’s career since anything he says in court can be impeached. Still, this might not be proportionate to the damage done, especially given that search warrants based on lies have sometimes turned deadly.
Given the amount of trust placed in officers, what is at stake when someone’s home is searched, and the inexcusability of knowingly telling a lie to a judge, criminal liability seems appropriate. Utah law makes it a Class B misdemeanor to lie in an affidavit. This seems disproportionately light, especially given that if an officer, or other witness, told a material lie in any other court hearing, the lie would be a second-degree felony.
The sanctity of our homes and effects was deemed important enough to warrant placement in the Bill of Rights. Invading that sanctity by lying in search warrant affidavits is a serious breach of the public trust and should be treated accordingly.
Criminal Justice Policy Analyst
Amy was the Justice and Due Process Policy Analyst at Libertas Institute.