CONTROVERTING AN INFORMANT'S FACTUAL BASIS
FOR A SEARCH WARRANT: Franks v. Delaware REVISITED AND REJECTED UNDER CONNECTICUT LAW
By Edward Gregory Mascolo*
I. THE CENTRAL ISSUE
This article does not require a lengthy introductory analysis, for it
embodies the Biblical injunction not to bear false witness against one's
neighbor.' The issue raised, therefore, by this article is: Does a defendant in a criminal proceeding ever have the right, under Article First,
Section Seven of the Connecticut Constitution,2 subsequent to the ex
parte issuance of a search warrant, to challenge the truthfulness of
factual statements or allegations of an informant made in an affidavit
supporting the warrant?
The United States Supreme Court, in the landmark case of Franks
v. Delaware,3 answered this question, under the Fourth Amendment to
the United States Constitution,4 in the negative. This article, on the
* Retired Research Attorney, Office of the Chief Court Administrator, Continuing Education, Judicial Branch, State of Connecticut; member of the Connecticut and District of Columbia
Bars; Editor-in-Chief of the CONNECTICUT BAR JOURNAL, 1969-73; current member of the
CONNECTICUT BAR JOURNAL Editorial Board; B.A., 1949, Wesleyan University; LL.B.,
1952, Georgetown University. The opinions expressed herein are those of the author alone.
1. Exodus 20:16 (King James).
2. CONN. CONST. art. I, § 7.
The people shall be secure in their persons, houses, papers and possessions from unrea'sonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without
probable cause supported by oath or affirmation.
Id. (emphasis added).
3. 438 U.S. 154 (1978).
4. U.S. CONST. amend. IV.
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Id.
[Vol. 15:65
basis of another landmark case, State v. Marsala, decided by the Supreme Court of Connecticut under Article First, Section Seven of the
Connecticut Constitution, answers the same question in the affirmative.
As this article will develop, the affirmative response is premised on the
preservation of the vitality of the probable cause requirement of Article
First, Section Seven and the enhancement of the integrity of the warrant-issuing process.
II.
VERACITY ATTACKS UPON AFFIDAVITS FOR SEARCH WARRANTS
UNDER THE FRANKS RULE
A. Contesting the Facial Sufficiency of Supporting Affidavits for
Search Warrants
1. The FederalRule
a. The "Bare Bones" Affidavits of Nathanson-Giordenello
The right not to be searched or seized without a neutral decision
that probable cause exists is basic to a free and enlightened society.
This guarantee, by removing from the discretion of law enforcement
officers the determination as to what evidence justifies an invasion of
the individual's privacy, and entrusting it to a judicial officer,6 seeks to
implement the prime aim and purpose of the Fourth Amendment and of
Article First, Section Seven of the Connecticut Constitution, which
"closely resembles" the Fourth Amendment of the United States Constitution:7 personal security from unreasonable governmental intrusions upon the privacy of the individual.8 Thus, the framers of the
Fourth Amendment and of Article First, Section Seven of the Connecticut Constitution placed their trust in the neutral magistrate, who, by
judicious use of the warrant power, would endeavor to strike the proper
balance between the privacy interests of the individual and the concerns
of society for effective law enforcement.9 This trust, however, implicitly rejected any acquiescent or secondary role for the magistrate. To the
5.
6.
216 Conn. 150, 579 A.2d 58 (1990) (en banc).
See State v. Barton, 219 Conn. 529, 540-41, 594 A.2d 917, 925 (1991) (en banc); JA-
COB W. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT: A STUDY IN CONSTITUTIONAL INTERPRETATION 47 (1966); NELSON B. LASSON, THE HISTORY AND DEVELOPMENT OF
THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 120 (1937).
7. Barton, 219 Conn. at 540, 544 A.2d at 924 (footnote omitted).
8. See United States v. Poller, 43 F.2d 911, 914 (2d Cir. 1930) (L. Hand, J.); Barton, 219
Conn. at 540, 594 A.2d at 924; TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION 68 (1969).
9. LANDYNSKI, supra note 6, at 47 (discussing the Fourth Amendment).
FACTUAL BASIS FOR A SEARCH WARRANT
contrary, his role was central to the issuance of warrants, and would
not allow for unquestioned or rubber-stamped deference to the judgment of police officers. 0 This meant, at a minimum, that the magistrate would insist upon a substantial basis for a judicial determination
that probable cause existed." Mere conclusory accusations of wrongdoing, as the United States Supreme Court has observed, are not sufficient.1"
In Nathanson v. United States,'3 the Supreme Court held for the
first time that a warrant, issued on the basis of a supporting affidavit
that shows no facts upon which to base a finding of probable cause, is
unreasonable under the Fourth Amendment. 4 The Court reasoned that
since a valid warrant must be supported by probable cause, this standard is satisfied only if a judicial officer found such cause from the
"facts or circumstances presented to him under oath or affirmation."' 5
Nathanson, therefore, stands for the principle that mere conclusory
allegations of wrongdoing are insufficient to show or establish probable
cause. 16
The Supreme Court affirmed the Nathanson principle in
Giordenello v. United States."' The Court was confronted, once again,
with a mere conclusory affidavit, in the form of a written complaint,
under oath, for an arrest warrant pursuant to the Federal Rules of Criminal Procedure.' 8 The Court concluded that the complaint did "not
pass [constitutional] muster," because it did not provide any basis for a
judicial determination that probable cause existed. 9 The Court observed that it was difficult to understand how a judicial officer could
independently assess the probability of criminal activity on the part of
the defendant.'0 Indeed, the Court reasoned that if such a complaint
were upheld the substantive protections surrounding the issuance of
warrants would be seriously compromised, and the complaint process
10. See Aguilar v. Texas, 378 U.S. 108, 110-15 (1964); Giordenello v. United States, 357
U.S. 480, 486 (1958); Barton, 219 Conn. at 541, 594 A.2d at 925 (quoting State v. Rose, 168
Conn. 623, 627, 362 A.2d 813 (1975)).
11. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
12. See Whiteley v. Warden, 401 U.S. 560, 564-65 (1971); United States v. Ventresca, 380
U.S. 102, 108-09 (1965) (dictum).
13. 290 U.S. 41 (1933).
14. Id. at 46-47.
15. Id.
16. Id.
17. 357 U.S. 480 (1958).
18. Id. at 483; FED. R. CRIM. P. 3, 4.
19. Giordenello, 357 U.S. at 486.
20. Id. at 486-87.
[Vol. 15:65
would be "of only formal significance, entitled to perfunctory approval" by a magistrate.2' This, in the Court's opinion, "would not comport with the protective purposes [for] which a complaint [or a supporting affidavit] is designed to achieve.""
Certain principles emerge from Nathanson and Giordenello. First,
and foremost, is the independence and the integrity required of the
reviewing magistrate. His role is both crucial and fundamental to the
warrant-issuing process. Not only must he not passively defer to the
subjective requests of the police, but also he should not sanction any
attempt from whatever source to usurp the functions of his office. If
the commands of the Fourth Amendment and of Article First, Section
Seven of the Connecticut Constitution are to have any meaning, then,
clearly, an independent and viably functional judiciary must be interposed between the police and the citizenry. To do otherwise would
reduce probable-cause determinations to subjective assessments colored
by the competitive zeal of law enforcement officers." This, in turn,
would lead to a reduced expectation of privacy on the part of the individual; for, if an individual is protected in the knowledge that his
privacy interests are only as secure as the police desire, then that individual is protected in name only. The Fourth Amendment and Article
First, Section Seven of the Connecticut Constitution were not intended
as mere words and were never intended to convey empty promises.
Thus, an independent judiciary secures for the individual both the procedural and the substantive guarantees of the Fourth Amendment and
of Section Seven. This, in substance, is the cardinal tenet of Nathanson
and Giordenello"
Closely allied to this cardinal tenet is the second command of
Nathanson and Giordenello: if an independent judiciary is to discharge
its role of objectively determining when the privacy interests of the
individual are subordinated to the effective enforcement of the criminal
laws, then the judiciary must be provided with a substantial factual
basis upon which to predicate its decision. During this objective deter-
21. Id. at 487.
22. Id.
23. See Aguilar, 378 U.S. at 110-15; McDonald v. United States, 335 U.S. 451, 455-56
(1948); Johnson v. United States, 333 U.S. 10, 13-14 (1948); cf. United States v. Lefkowitz, 285
U.S. 452, 464 (1932).
24. This is so, even though in both cases the Supreme Court addressed only Fourth Amendment issues, because the commands of the Fourth Amendment apply to the states through the due
process clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949); see
Ker v. California, 374 U.S. 23, 34 (1963). "No State ... shall ... deprive any person of life,
liberty or property, without due process of law ...." U.S. CONST., amend XIV, § 1.
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
mination, the role of probable cause is crucial to the warrant-issuing
process, for probable cause is "the standard by which privacy is reasonably invaded."25 Mere conclusions, suppositions, or suspicions do not
form the basis for probable cause.26 As is true of other constitutional
protections, the standard of probable cause is one of substance and
meaning. Probable cause is established for a search warrant when the
facts and circumstances within an affiant's knowledge, and of which he
has reasonably trustworthy information, are sufficient in themselves to
warrant a man of reasonable caution and prudence to believe that"
items subject to seizure are presently upon a particular person or situated within a specified place or thing." The standard thus required for
the establishment of probable cause is nothing less than a reasonable
belief.29 Anything less than a reasonable belief, or any "relaxation of
the fundamental requirements of probable cause," would leave innocent
persons at the discretionary mercy of law enforcement officials. 0 This
standard obviously was not satisfied by the "bare bones" affidavits
contained in Nathanson and Giordenello. Consequently, the magistrates
in those cases were prevented from truly discharging their constitutional role of objectively determining whether there was sufficient cause to
justify a reasonable intrusion upon the individual's privacy interests.
b. Aguilar-Spinelli
Aguilar v. Texas3 and Spinelli v. United States32 jointly represented a serious effort by the United States Supreme Court to implement the commands of Nathanson and Giordenello, by requiring law
enforcement officers to provide certain information to magistrates, and
by structuring probable cause inquiries in a manner that would assure
the independence of the judiciary as well as ensure a greater degree of
25.
Edward G. Mascolo, Specificity Requirements for Warrants Under the Fourth Amend-
ment: Defining the Zone of Privacy, 73 DICK. L. REV. 1, 6 (1968).
26. See, e.g., Dunaway v. New York, 442 U.S. 200, 213 (1979); Henry v. United States,
361 U.S. 98, 101 (1959).
27. Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion); Brinegar v. United
States, 338 U.S. 160, 175-76 (1949); Carroll v. United States, 267 U.S. 132, 162 (1925); Stacey v.
Emery, 97 U.S. 642, 645 (1878); see Henry, 361 U.S. at 102.
28.
LANDYNSKI, supra note 6, at 46; LASSON, supra note 6, at 129.
29. See Berger v. New York, 388 U.S. 41, 55 (1967); Brinegar, 338 U.S. at 175-76;
Carroll,267 U.S. at 161-62; Stacey, 97 U.S. at 645.
30. Wong Sun v. United States, 371 U.S. 471, 479 (1963); Brinegar, 338 U.S. at 176 ("[t]o
allow less [than probable cause] would be to leave law-abiding citizens at the mercy of the
officers' whim or caprice").
31.
32.
378 U.S. 108 (1964).
393 U.S. 410 (1969).
[Vol. 15:65
accuracy in probable cause determinations. The focal point of inquiry
in Aguilar-Spinelli was the troublesome area of hearsay evidence contained in tips received by the police from informants.3 The AguilarSpinelli rules devised and refined by the Court to cope with such evidence can be summed up as follows.
First, the Supreme Court, in Aguilar, established a two-pronged
test to implement the constitutional requirement that probable cause
determinations be made by neutral and detached magistrates, and not
by law enforcement officers, and to assess the legal sufficiency of an
informant's tip pursuant to the standard of probable cause.34 These
prongs are known, respectively, as the "basis-of-knowledge" prong and
the "veracity" prong.35 The basis-of-knowledge prong, on the one
hand, requires that the supporting affidavit disclose the underlying
circumstances from which the informer drew his conclusion of criminal
wrongdoing so as to permit an objective evaluation by an independent
judicial officer.36 The veracity prong, on the other hand, requires that
the affidavit show or establish the reliability of the informant.37
Second, an affidavit based on an informant's tip or report, standing alone, will not provide probable cause for the issuance of a search
warrant, unless the tip includes information that apprises the reviewing
magistrate of the informer's basis for concluding that the evidence
subject to seizure is where he claims it is (the basis-of-knowledge
prong), and the affiant informs the judicial officer of his basis for believing that the informer is credible (the veracity prong).38 As to the
basis-of-knowledge prong, a statement from the informant that he observed the criminal activity in question is sufficient.39 Alternatively,
the basis-of-knowledge prong is satisfied if the informant came by his
information indirectly and provided a satisfactory explanation as to
why his sources were reliable.' In the absence of a detailed statement
of the circumstances in which the information had been obtained or
gathered, the basis-of-knowledge prong may nevertheless be satisfied
by a detailed description of the defendant's criminal activity from
33. Spinelli, 393 U.S. at 416; Aguilar, 378 U.S. at 114-15.
34. Aguilar, 378 U.S. at 114-15.
35. E.g., United States v. Sellers, 483 F.2d 37, 39-40 (5th Cir. 1973), cert. denied, 417 U.S.
908 (1974).
36. Spinelli, 393 U.S. at 416; Aguilar, 378 U.S. at 114; Sellers, 483 F.2d at 39-40.
37. Aguilar, 378 U.S. at 114; Sellers, 483 F.2d at 39-40.
38. Gates, 462 U.S. at 267 (White, J., concurring); see Spinelli, 393 U.S. at 412-13, 416;
Marino, 682 F.2d at 452.
39. Gates, 462 U.S. at 268 n.20 (White, J., concurring); see Marino, 682 F.2d at 453.
40. Gates, 462 U.S. at 268 n.20 (White, J., concurring).
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
which the magistrate may reasonably infer that the informer was relying upon something more substantial than a casual rumor or an
individual's general reputation.4 '
Third, the veracity prong requires that the affiant inform the magistrate of his basis for concluding or believing that the informant is
credible, or that the informant's information is reliable.42 The reliability of the tip may be verified by independent corroboration43 or by
independent investigation." Such verification tends to dispel any notion of fabrication in an informer's report.45 The veracity prong may
also be satisfied by a recitation in the affidavit that the informant previously supplied accurate information to the authorities.' Alternatively,
proof that the tip contains information against the informant's penal
interest may also satisfy the veracity prong.
Fourth, under the Aguilar equation, probable cause for the issuance of a Warrant may be based exclusively upon an informer's tip or
report only if both the informant's basis of knowledge and his credibility are specified in the supporting affidavit. '
Finally, the Spinelli elaboration and refinement of the Aguilar tests
provide that if an informant's tip or report failed under either or both
of the two Aguilar prongs, probable cause could still be established by
independent police investigatory work if it corroborated the tip to such
an extent that it supported "'both the inference that the informer was
generally trustworthy and that he [had] made his charge ... on the
basis of information obtained in a reliable way."'4 9 In addition, a sufficiently detailed tip may provide a proper foundation for a magistrate
to conclude that the informant based his allegations on adequate or sub-
41. Gates, 462 U.S. at 268 n.20 (White, J., concurring); Spinelli, 393 U.S. at 416.
42. Gates, 462 U.S. at 267 (White, J., concurring) (citing Aguilar, 378 U.S. at 114); see
Spinelli, 393 U.S. at 412-13, 416.
43. United States v. One 56-Foot Motor Yacht Named the Tahuna, 702 F.2d 1276, 1284
(9th Cir. 1983); see United States v. Anderson, 500 F.2d 1311, 1315-16 (5th Cir. 1974).
44. United States v. Prueitt, 540 F.2d 995, 1005 (9th Cir. 1976), cert. denied, 429 U.S.
1063 (1977); see Anderson, 500 F.2d at 1316.
45. See Anderson, 500 F.2d at 1316.
46. Gates, 462 U.S. at 268 n.20 (White, J., concurring); United States v. Zucco, 694 F.2d
44, 47 (2d Cir. 1982); Marino, 682 F.2d at 453; see McCray v. Illinois, 386 U.S. 300, 303-04
(1967).
47. Gates, 462 U.S. at 268 n.20 (White, J., concurring); One 56-Foot Motor Yacht Named
the Tahuna, 702 F.2d at 1284 (dictum); see United States v. Harris, 403 U.S. 573, 583-84 (1971)
(plurality opinion).
48. Marino, 682 F.2d at 452; United States v. Hill, 500 F.2d 733, 739 (5th Cir. 1974), cert.
denied, 420 U.S. 952 (1975).
49. Gates, 462 U.S. at 268 (White, J., concurring) (quoting Spinelli, 393 U.S. at 417
(1969)).
[Vol. 15:65
stantial knowledge, and not on mere rumor or suspicion." In instances
in which law enforcement officers rely upon corroboration, the "ultimate question" will be whether the corroborated tip is as trustworthy as
a tip that would satisfy the Aguilar requirements without independent
corroboration.5
The Aguilar-Spinelli rules were established as a reaction by the
Supreme Court to "bare bones" affidavits containing mere conclusory
allegations of criminal wrongdoing. The standards laid down by the
rules reflected the Court's concern that the crucial role of an independent judiciary in conducting probable cause inquiries was compromised
by magistrates who were paying undue deference to claims of probable
cause by law enforcement officers that were not supported by a substantial factual basis. Thus, the standards were designed to enhance the
integrity of the warrant-issuing process by preserving the independence
and objectivity of the judiciary, and to ensure a greater degree of accuracy in probable cause determinations.
c. Illinois v. Gates
In Illinois v. Gates,52 however, a sharply divided Supreme Court
articulated a new, more flexible standard for evaluating the facial sufficiency of supporting affidavits for search warrants based on hearsay
evidence contained in informants' tips. In doing so, the Court rejected a
rigid application of the two-pronged test established in Aguilar-Spinelli
and replaced it with a totality-of-the-circumstances approach that placed
strong emphasis upon a practical and commonsense assessment of the
existence of probable cause for the issuance of a warrant.53
The Court in Gates "squarely addressed" for the first time the
application of the Aguilar-Spinelli standards to tips from anonymous
informants."4 At issue was the constitutional sufficiency of an anonymous, but partially corroborated, message received by the police.
The defendants successfully moved to suppress the fruits of two
searches, one of which was conducted pursuant to the authority of a
warrant, persuading the Illinois courts that the warrant had been issued
without probable cause.56 A majority of the Supreme Court of Illinois
50. See Spinelli, 393 U.S. at 416; Zucco, 694 F.2d at 47; Marino, 682 F.2d at 453.
51.
Gates, 462 U.S. at 268 (White, J., concurring); see Spinelli, 393 U.S. at 415.
52. 462 U.S. 213 (1983).
53. Id. at 238; see State v. Barton, 219 Conn. 529, 534, 537, 594 A.2d 917, 921, 923
(1991) (en banc).
54. Gates, 462 U.S. at 283 (Brennan, J., dissenting).
55. Id. at 217.
56. People v. Gates, 85 1l1.2d 376, 390, 423 N.E.2d 887, 893 (1981), rev'd, 462 U.S. 213
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
observed that, standing alone, the anonymous tip, in the form of a letter
to the police, could not provide the basis for a magistrate's determination of the existence of probable cause. 7 The majority found that the
letter to the police was deficient in establishing that its author was
credible or his information reliable, and in providing an adequate basis
for the writer's predictions regarding the criminal activities of the defendants.58 Thus, in the opinion of the majority, the tip failed to satisfy either the veracity or the basis-of-knowledge prong of the Aguilar
test.5 9
On appeal, the United States Supreme Court reversed.' In so
doing, the Court repudiated the two-pronged analysis developed and
refined in Aguilar-Spinell, and replaced it with a totality-of-the-circumstances approach in which the elements of an informant's "veracity",
"reliability" and "basis of knowledge" would not be treated as "entirely
separate and independent requirements to be rigidly exacted in every
case."'" Although the Court considered these elements as being "highly relevant" in assessing the value of an informant's tip, the Court
nevertheless believed that these elements should be examined as "closely intertwined issues that may usefully illuminate the commonsense,
practical question whether there is 'probable cause"' for the issuance of
a warrant.62
For these reasons, the Court concluded that it was "wiser to abandon" the Aguilar-Spinelli two-pronged test, and, in its place, "reaffirm
the totality-of-the-circumstances analysis that traditionally has informed
probable-cause determinations. '"63 This will require a magistrate, when
passing upon an application for a warrant to make a practical, nontechnical decision whether, in light of all the circumstances set forth in
the supporting affidavit, including the basis of knowledge and veracity
of persons supplying hearsay information, there is a fair probability of
finding contraband or evidence of a crime in a particular place.' In
addition, it will be the duty of a reviewing court to ensure that there
was a substantial basis for the magistrate's conclusion that probable
(1983).
57.
58.
59.
with this
60.
61.
62.
63.
64.
Id. at 386, 423 N.E.2d at 891.
Id. at 384-86, 423 N.E.2d at 890-91.
Id. The United States Supreme Court, in its majority opinion, was "inclined to agree"
assessment. Gates, 462 U.S. at 227.
Gates, 462 U.S. at 230.
Id.
Id.
Id. at 238.
Gates, 462 U.S. at 238.
[Vol. 15:65
cause existed. 5
2. The Connecticut Rule
The Connecticut approach to the proper analysis of supporting
affidavits for search warrants based on tips from informants mirrors the
federal experience. Thus, in State v. Kimbro,' when the Connecticut
Supreme Court was confronted for the first time with the issue of the
proper standard for probable cause under the Connecticut Constitution
with respect to hearsay evidence contained in tips received by the police from informers, the court rejected the "amorphous standard" of
Gates and endorsed the Aguilar-Spinelli tests. 7 In the opinion of the
majority in Kimbro, the Aguilar-Spinelli analysis offered a practical
approach that effectively guided the conduct of both magistrates and
law enforcement officers in the determination of probable cause.68
Moreover, the court reasoned that this approach would protect the
rights of the individual without impairing effective law enforcement.
The Kimbro endorsement of Aguilar-Spinelli proved short-lived,
for in 1991 the Connecticut Supreme Court, in State v. Barton,69 overruled Kimbro.7" To the Barton court, the Aguilar-Spinelli tests had
become "encrusted with an overlay of analytical rigidity" that is inconsistent with the constitutional role of the magistrate issuing a warrant to
exercise discretion in the determination of probable cause. 7 That discretion,72 in the opinion of the court, while controlled by constitutional
principles and guided by established evidentiary standards, should not
be so shackled by rigid analytical standards that the magistrate will be
deprived of the ability to draw reasonable inferences from the facts
presented.73 The Barton court thus concluded that, to the extent that
Kimbro stood for the proposition that a magistrate's exercise of discretion in the determination of probable cause is reviewable only according to fixed analytical standards, "it is overruled. 74
To sum up, the Connecticut standard for determining the existence
of probable cause to search pursuant to a warrant is as follows:
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
Id. at 238-39.
197 Conn. 219, 496 A.2d 498 (1985).
Id. at 236, 496 A.2d at 507.
Id. at 236-37, 496 A.2d at 508.
219 Conn. 529, 594 A.2d 917 (1991) (en banc).
Id. at 544, 594 A.2d at 926.
Id.
Id. at 543, 594 A.2d at 926.
Barton, 219 Conn. at 543-44, 594 A.2d at 926.
Id. at 544, 594 A.2d at 926.
19951
FACTUAL BASIS FOR A SEARCH WARRANT
(a) In applying the totality-of-the-circumstances test in determining the existence of probable cause to search, the issuing judicial officer must make a
practical, non-technical decision whether, in light of all the circumstances set
forth in the supporting affidavit, including the basis of knowledge and the
veracity of persons supplying hearsay information, that there exists a fair
probability that contraband or evidence of crime will be found in a particular
place.
(b) The judicial officer, in making this determination, may draw reasonable
inferences from the facts presented.
(c) When the judicial officer has determined that the supporting affidavit
presents a sufficient objective indicia of reliability to justify the issuance of a
search warrant, a reviewing court (1) should defer to the reasonable inferences drawn by the judicial officer, and (2) must uphold the validity of the warrant if the affidavit in question presents a substantial factual basis, including
the inferences reasonably drawn from the affidavit, for the judicial officer's
conclusion that probable cause existed."
B. The General Issue of Sub-Facial Challenge to the Veracity of a
Supporting Affidavit for the Issuance of a Search Warrant
Although cases dealing with the general issue of contesting the
facial sufficiency of supporting affidavits for search warrants,76 and
those dealing with the general issue of sub-facial challenges to the
veracity or integrity of supporting affidavits,77 overlap with respect to
the issue of the establishment of probable cause, there is a fundamental
difference between them. Surface challenges question the sufficiency of
probable cause in the supporting affidavits, whereas sub-facial challenges do not quarrel with the surface validity of affidavits or with the
reasonableness of the magistrates' conclusions based upon the surface
validity of the supporting affidavits. Rather, the latter argue that while
there is surface sufficiency to establish probable cause, in fact, no such
cause ever existed. For example, in cases controverting an informant's
factual basis for a search warrant, probable cause was based upon a
sham and a fraud of the informant in supplying false or perjured information to the affiant-police officer and thereby fatally contaminating
75. State v. Diaz, 226 Conn. 514, 524-25, 628 A.2d 567, 574 (1993). For further discussion
of this issue, see State v. Zarick, 227 Conn. 207, 630 A.2d 565, cert. denied, 114 S. Ct. 637
(1993); State v. DeFusco, 224 Conn. 627, 620 A.2d 746 (1993); State v. Duntz, 223 Conn. 207,
613 A.2d 224 (1992); State v. Rodriguez, 223 Conn. 127, 613 A.2d 211 (1992); State v. Johnson,
219 Conn. 557, 594 A.2d 933 (1991).
76. See Nathanson, 290 U.S. 41; Giordenello, 357 U.S. 480; Aguilar, 378 U.S. 108;
Spinelli, 357 U.S. 480; Gates, 462 U.S. 213; Barton, 219 Conn. 529, 594 A.2d 917.
77. See, e.g., Franks v. Delaware, 438 U.S. 154 (1978); State v. Bergin, 214 Conn. 657,
574 A.2d 164 (1990).
[Vol. 15:65
the integrity of the whole warrant-issuing process. It should also be
noted that sub-facial challenges neither question the integrity of the
magistrate nor do they impeach the constitutional procedures for the
issuance of search warrants.
It behooves a court, therefore, in passing upon a veracity attack, to
fully apprise itself of the thrust of the argument being advanced, which
is directed not at the face of a concededly valid supporting affidavit,
but rather at its sources and, in particular, as the case may be, at the
motivational factors inherent in the practices of police officers of ferreting out or relying upon informants and their information. For the issue
raised goes to the very essence of the integrity of the warrant-issuing
process: an attempt to show that the judiciary has stamped its imprimatur upon perjury or information so critically inaccurate or false as to
raise the specter of prosecution, and possible conviction, of an innocent
person.
The United States Supreme Court finally came to grips with this
issue in the case of Franks v. Delaware.7" Specifically, does a defendant in a criminal case ever have the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search
warrant, to challenge the veracity of factual statements made in a supporting affidavit?79 The answer from the Court was a qualified and
limited "yes'., 80
The Court was compelled to this result, in part, because the language of the Warrant Clause of the Fourth Amendment takes the
affiant's good faith as its premise: "'[N]o Warrants shall issue, but
upon probable cause, supported by Oath or affirmation ...."',,
Thus,
when the Amendment demands a factual basis sufficient to establish
probable cause, the assumption is that "'there will be a truthful
showing'. ...,82"Truthful" in this setting, however, means only that
the "information put forth is believed or appropriately accepted by the
affiant as true."83 The Court devised this limiting definition, because
probable cause could be founded on a number of sources, such as
hearsay, information received from informants, and information within
the affiant's knowledge that occasionally must be garnered hastily.84
'
78.
79.
80.
81.
82.
(S.D.N.Y.
83.
84.
438 U.S. 154 (1978).
Id. at 155.
Id. at 155-56, 171-72.
Id. at 164 (quoting U. S. CONSr. amend. IV).
Franks, 438 U.S. at 164-65 (quoting United States v. Halsey, 257 F. Supp. 1002, 1005
1966), affd, No. 31369 (2d Cir. June 12, 1967)).
Id. at 165.
Id.
FACTUAL BASIS FOR A SEARCH WARRANT
Applying the two-pronged test of Aguilar,85 the majority in
Franks reasoned that because it is the magistrate's role to determine
independently whether there is probable cause, it would be an "unthinkable imposition" upon the magistrate's authority if a supporting
affidavit for a warrant, exposed after the fact to contain a "deliberately
or recklessly false statement, were to stand beyond impeachment.""
The Court thus recognized that a sub-facial challenge to the veracity of
a supporting affidavit for the issuance of a search warrant may be made
to a supporting affidavit that has satisfied the facial requirements for
the establishment of probable cause. This position is consistent with the
Court's further observation in Franks that there is no "principled basis"
for distinguishing between the issue of the sufficiency of an affidavit,
which is subject to a post-search reexamination, and the issue of its
integrity." The net result, therefore, of the Court's analysis was that
since it had not questioned the continued application of the remedy of
suppression when a violation of the Fourth Amendment had been substantial and deliberate, there was no principled basis for prohibiting the
issue of the integrity of a supporting affidavit from being the subject of
a post-search reexamination.88 Accordingly, the Franks Court could
not regard "any such extension really to be at issue here."89
In spite of this position, however, the majority in Franks felt
obligated to give cognizance to competing values that led the Court to
impose limitations upon the right to and the scope of veracity inquiries.
The Court thought it "best" that such values could be addressed by
noting the arguments of the State of Delaware "and others" against
allowing veracity challenges of supporting affidavits," which can be
summarized as follows:
(a) The federal exclusionary rule is merely a judicially created remedy that
applies only where its benefit as a deterrent outweighs the societal cost of its
use.
(b) The individual's privacy interests are adequately protected by the requirement of a supporting affidavit and by the reviewing magistrate's independent determination of probable cause based on the face of the affidavit.
85.
86.
87.
Aguilar, 378 U.S. at 114.
Franks, 438 U.S. at 165.
Id. at 171. Examples of cases that fit the sufficiency category are Nathanson, 290 U.S.
41; Giordenello, 357 U.S. 480; Aguilar, 378 U.S. 108; Spinelli, 357 U.S. 480; Gates, 462 U.S.
213; Kimbro, 197 Conn. 219, 496 A.2d 498; Barton, 219 Conn. 529, 594 A.2d 917.
88. See Franks, 438 U.S. at 171.
89.
Id.
90. Id. at 165. The "others" were not specified by the Court, but briefs of amici curiae
were filed by the "United States" and the American Civil Liberties Union. Id. at 155 n.*.
[Vol. 15:65
(c) The magistrate is capable of conducting a vigorous inquiry into the accuracy of the factual allegations of the supporting affidavit.
(d) The solemnity and importance of the magistrate's proceeding would be
diminished by making his inquiry into probable cause reviewable with respect to the issue of veracity.
(e) A post-search evidentiary hearing on issues of veracity would confuse the
issue of guilt or innocence with the collateral issue of official misconduct in
the drafting of the supporting affidavit.
(f) A post-search veracity challenge is inappropriate because the accuracy of
the supporting affidavit is in large part beyond the affiant's control. 9
The Franks Court did not consider these arguments to be "trivial"
and "[i]ndeed", because of them, the rule of inquiry "announced today"
would have a limited scope, both in regard to when exclusion would be
mandated, and when a veracity hearing must be ordered.9' The Court
then proceeded to articulate the following primary justifications and
rules and requirements for sanctioning veracity challenges to the integrity of affidavits supporting applications for search warrants.
There is a presumption of validity with respect to a supporting
affidavit for a search warrant. However, in view of such pressing considerations as (1) the ex parte nature of the inquiry conducted by a
judge in passing upon an application for a warrant, (2) the lack of
adequate alternative sanctions, and (3) the danger that the probable
cause requirement might otherwise be denuded of all real meaning, the
Fourth Amendment mandates that in certain circumstances a veracity
attack upon the supporting affidavit must be permitted. To qualify for
an evidentiary hearing on this issue, a substantial preliminary showing,
involving the following requirements, must be made:
(a) The challenger's attack must consist of more than conclusory allegations,
and must be supported by more than a mere desire to cross-examine.
(b) The allegations must be of deliberate falsehood or of reckless disregard
for the truth, supported by an offer of proof.
(c) The allegations should be specific as to what portion of the supporting
affidavit is claimed to be false, accompanied by a statement of supporting
reasons.
(d) If possible, affidavits or otherwise reliable statements of witnesses should
be furnished, or their absence should be satisfactorily explained.
(e) Allegations of negligence or innocent mistake will be insufficient.
(f) The allegations of impropriety must be directed only to the deliberate falsity or reckless disregard of the affiant, and not to that of any nongovem-
91. Id. at 165-67.
92. Franks, 438 U.S. at 167. As will be demonstrated, see infra note 227 and accompanying text, only viable argument for limiting the scope of inquiry is the deterrence rationale of the
federal exclusionary rule.
19951
FACTUAL BASIS FOR A SEARCH WARRANT
mental informant.93
The concept of "reckless disregard" is applicable to cases in which
the affiant-officer entertained serious doubts as to the truth of the
informant's allegations.94 Moreover, such conduct on the part of the
officer may be inferred from circumstances evincing obvious reasons to
doubt the veracity of the allegations.95 It is apparent, therefore, that
veracity attacks upon supporting affidavits are of a limited scope. The
Franks Court made this determination only after it balanced the arguments against allowing veracity challenges.' In particular, the Court
balanced the restricted scope of the federal exclusionary rule and the
protection provided by the procedural requirements of the warrantissuing process, against the pressing considerations, detailed above,
favoring such inquiries.'
If these requirements are met, the court will then set to one side
the material under attack, and if the remaining content of the affidavit
is sufficient to support a finding of probable cause, no hearing will be
required. 9 On the other hand, if the remaining content is insufficient,
then an evidentiary hearing must be held, where the movant must establish the perjury or reckless disregard for the truth of the affiant by a
preponderance of the evidence." If he does, the warrant must be voided and the fruits of the search suppressed to the same extent as will
pertain where probable cause is lacking on the face of the affidavit."
Material omissions from an affidavit, which were knowingly and
intentionally made, or were made with reckless disregard for the truth,
also fall within the Franks rule."° However, before a movant is enti-
93. Franks, 438 U.S. at 168-69, 171; see State v. Rodriguez, 223 Conn. 127, 142-43, 613
A.2d 211, 219 (1992) (issue of fabrication by informant not raised); State v. Ruscoe, 212 Conn.
223, 232, 563 A.2d 267, 273 (1989), cert. denied, 493 U.S. 1084 (1990); State v. Morrill, 205
Conn. 560, 569, 534 A.2d 1165, 1170-71 (1987); State v. Morrill, 197 Conn. 507, 543-44, 498
A.2d 76, 97 (1985).
94. E.g., United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984).
95. Id.
96. Franks, 438 U.S. at 165-71.
97. Id.
98. Id. at 171-72; State v. Morrill, 197 Conn. 507, 544, 498 A.2d 76, 97 (1985); cf. State v.
Bergin, 214 Conn. 657, 666, 671, 574 A.2d 164, 169, 172 (1990) (applying principle to an affidavit supporting an arrest warrant).
99. Franks,438 U.S. at 156, 172.
100. Id. at 155-56, 172; see State v. Bergin, 214 Conn. 657, 670 n.10, 574 A.2d 164, 171
n.10 (1990); State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758, 762 (1983), cert. denied, 465
U.S. 1084 (1984).
101. See United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.), cert. denied, 444 U.S.
981 (1979); State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758, 762 (1983), cert. denied, 465
U.S. 1084 (1984); State v. Speers, 17 Conn. App. 587, 594, 554 A.2d 769, 773, cert. denied, 211
[Vol. 15:65
tied to a Franks hearing for an alleged omission, he must make a substantial preliminary showing that the information in question was omitted with the intent to make, or in reckless disregard of whether it made,
the affidavit misleading to the issuing judge."2 Further, the movant
must make a substantial showing that the ommission was material to
the determination of probable cause." 3 Accordingly, an affiant who
"picks and chooses" the information that he includes in the affidavit
will not be guilty of a Franks violation if, had the issuing judge been
so advised of the omitted information, he still would have been justified in issuing the warrant. In short, not all omissions, even if intentional, will invalidate a warrant.' "
Mere denials will not qualify as a substantial preliminary showing
warranting a hearing. 5 Moreover, although a Franks violation in the
supporting affidavit may require the suppression of evidence or
statements obtained as a result of the execution of the warrant in question, it will neither deprive a court of jurisdiction nor bar a subsequent
prosecution or void a resulting conviction."' Accordingly, such a
violation does not entitle
a defendant to the dismissal of the charges for
07
which he was arrested.
III. THE "GOOD-FAITH" EXCEPTION TO THE EXCLUSIONARY RULE
The United States Supreme Court, in United States v. Leon, °8
has endorsed a "good-faith" exception to the Fourth Amendment
exclusionary rule. Under this exception, exclusion may not be invoked
to bar the use of evidence obtained by law enforcement officers acting
in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate or judicial officer, even if the warrant is
ultimately found invalid. The Supreme Court reasoned that to apply the
Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851 (1989); cf. State v. Weinberg, 215 Conn.
231, 237, 575 A.2d 1003, 1007 (acknowledging existence of such extension of Franks rule), cert.
denied, 498 U.S. 967 (1990). Material omissions in this setting are those that raise a doubt as to
the existence of probable cause. United States v. Marin-Buitrago, 734 F.2d 889, 895 (2d Cir.
1984). The issue of materiality has been characterized as a mixed question of law and fact, or as
"a pure question of law ....
Id. at 894 (footnote omitted) (citations omitted).
102. State v. Bergin, 214 Conn. 657, 667, 574 A.2d 164, 170 (1990).
103. Id.
104. Id. at 666-67, 574 A.2d at 169-70 (affidavit for an arrest warrant); see State v. Rodriguez, 223 Conn. 127, 144, 613 A.2d 211, 220 (1992) (discussing Bergin).
105. United States v. Figueroa, 750 F.2d 232, 237 (2d Cir. 1984); State v. Simmons, 10
Conn. App. 561, 564, 524 A.2d 669, 671, cert. denied, 203 Conn. 811, 525 A.2d 524 (1987).
106. State v. Patterson, 213 Conn. 708, 715-16, 570 A.2d 174, 178-79 (1990).
107. Id.
108. 468 U.S. 897 (1984).
FACTUAL BASIS FOR A SEARCH WARRANT
sanction of exclusion in this situation would be counter-productive, in
that the deterrence rationale of the exclusionary rule, which seeks to
discourage and curb illegal search-and-seizure practices by police officials, would lack legitimacy and justification."° It would, in short,
lose much of its force." 0
Rejecting this analysis, the Connecticut Supreme Court, in State v.
Marsala,"'1 concluded that a "good-faith" exception to the
exclusionary rule does not exist under Connecticut law, and that application of such an exception, while compatible with a standard of
"'close enough is good enough,"' would be incompatible with the
probable cause standard mandated by Article First, Section Seven of
the Connecticut Constitution."' The Marsala court reasoned that the
exclusionary rule, without the "good-faith" exception, is a significant
factor in deterring the issuance of invalid warrants, thereby reinforcing
the integrity of the warrant-issuing process as a whole." 3 Thus, the
rule will discourage "judge-shopping" by police officers, and encourage
judges who review applications for warrants to take care in discharging
their constitutional duties. The presence of the "good-faith" exception,
in short, would have contrary negative effects upon the warrant-issuing
process." 4
Moreover, the Marsala court rejected the notion that the
exclusionary rule "punished" anyone." 5 The rule is, instead, designed
to deter future police misconduct and ensure, as nearly as is reasonably
attainable, institutional compliance with the warrant-issuing requirements of Article First, Section Seven of the Connecticut Constitution." 6 The relevant inquiry, therefore, is whether the sanction of
exclusion is appropriate even in those cases where the police officer in
question believed that he was doing everything correctly, but in fact
had not supplied the issuing authority with information sufficient to
meet the constitutional requirement of probable cause. The Marsala
court concluded that the long-term deterrent effect of the exclusionary
109. Id. at 913-22.
110. Id.; accord Massachusetts v. Sheppard, 468 U.S. 981, 987-91 (1984) (suppression unwarranted where judge issuing search warrant failed to make necessary clerical corrections, resulting in warrant's failure to particularly describe evidence to be seized).
111. 216 Conn. 150, 579 A.2d 58 (1990) (en banc).
112. Id. at 171, 579 A.2d at 68.
113. Id. at 170-71, 579 A.2d at 68.
114. See id. at 167-69, 579 A.2d at 66-67.
115. Marsala, 216 Conn. at 170, 579 A.2d at 68 (quoting United States v. Leon, 468 U.S.
897, 953) (Brennan, J., dissenting)).
116. Id.
[Vol. 15:65
rule is appropriate in these situations because courts can expect the
police to learn from their mistakes and to devote greater care and attention to providing sufficient information to establish probable cause
when applying for a warrant." 7 Similarly, police officers will be encouraged by their respective departments to review with some attention
the form of the warrant that they have been issued to ensure that it
comports with constitutional requirements." '
The significance of Marsala lies in its repudiation of Leon's perception of the exclusionary rule, which viewed the exclusionary rule as,
basically, a means of punishing police officers for the errors of judges." 9 To the Marsala court, the rule was designed, not to "punish"
anyone, but to deter future police misconduct and reinforce institutional
compliance with the warrant-issuing requirements of the Connecticut
Constitution. 20 Thus, by rejecting the Leon rationale of the "goodfaith" exception to the exclusionary rule, the Marsala court placed
primary emphasis upon the educational mission of the exclusionary
rule, and viewed the rule as a unifying influence that would motivate
both officer and judge to devote greater care and attention to their
constitutional duties. 2'
Above all else, Marsala implicitly recognizes the pivotal role of
judicial integrity in the warrant-issuing process; the judiciary, by sanctioning the admissibility of evidence obtained in violation of the Connecticut Constitution, becomes a part of what is in fact a single governmental action prohibited by the terms of Article First, Section Seven of
the Connecticut Constitution. Similarly, the Marsala court implicitly
acknowledged the chief deterrent function of the exclusionary rule: its
capacity to promote institutional compliance by law enforcement agencies generally with the requirements of the Connecticut Constitution.
Moreover, there is a substantial basis for believing that exclusion of
evidence seized pursuant to a warrant will have a significant deterrent
effect upon an issuing authority."
In sum, the deterrence rationale of exclusion is not designed to be
a form of punishment of individual law enforcement officers for their
failure to obey the commands of Article First, Section Seven of the
117. Id. at 171, 579 A.2d at 68 (quoting United States v. Leon, 468 U.S. 897, 955)
(Brennan, J., dissenting)).
118. Id. at 170-71, 579 A.2d at 68.
119. Marsala, 216 Conn. at 170, 579 A.2d at 68.
120. Id.
121.
See Marsala, 216 Conn. at 169, 170-71, 579 A.2d at 67, 68.
122. 1 WAYNE R. LAFAvE, SEARcH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.3(d), at 56 (2d ed. 1987 & Supp. 1995).
19951
FACTUAL BASIS FOR A SEARCH WARRANT
Connecticut Constitution. Instead, the chief deterrent function of the
exclusionary rule is its capacity to promote institutional compliance by
law enforcement agencies generally with the requirements of the Connecticut Constitution."3 Thus, the ultimate benefit of this functional
impact will be the reinforcement of the integrity of the warrant process
itself. Similarly, by encouraging both officer and judge to pay close
attention to the details attendant upon the warrant-issuing process, the
exclusionary rule will enhance the accuracy of criminal prosecutions
and public confidence in their final results. Ultimately, the community
benefits from the knowledge that justice has been done. It should be
emphasized, therefore, that Marsala is but a reaffirmation of the rule of
law.
IV. MARSALA AND THE EXPANDED SCOPE OF THE EXCLUSIONARY
RULE
A. The FederalExclusionary Rule
Prior to 1914, there existed no means of excluding, in federal
prosecutions, evidence obtained in violation of the Fourth Amendment.2 4 In Weeks v. United States,'" however, the United States
Supreme Court held "for the first time"' that such evidence, upon
timely motion, must be suppressed."" The rationale of the Court's
decision was judicial integrity, in that unlawful search-and-seizure
practices should find no sanction in the judgment of federal courts. I"
To do so, would sacrifice the principles established in the Fourth
Amendment. 29 Accordingly, the doctrine of exclusion was a judicially created remedy designed to safeguard the rights secured by the
Amendment.'30 The federal exclusionary rule, therefore, is a statement
of this nation's commitment to Fourth Amendment values and to the
reduction in the number of constitutional violations in our society.''
The Weeks rule, grounded in the rationale of judicial integrity,
123.
124.
125.
126.
127.
128.
129.
ing text.
130.
338, 348
131.
(1974).
See id. at 57-58.
Stone v. Powell, 428 U.S. 465, 482 (1976).
232 U.S. 383 (1914).
Wolf v. Colorado, 338 U.S. 25, 28 (1949).
Weeks, 232 U.S. at 398.
Id. at 392, 394.
See id. at 393. For further discussion of Weeks, see infra notes 227-33 and accompanySee Stone v. Powell, 428 U.S. 465, 482 (1976); United States v. Calandra, 414 U.S.
(1974).
John Kaplan, The Limits of the Exclusionary Rule, 26 STAN. L. REV. 1027, 1055
[Vol. 15:65
remained intact for nearly fifty years. In 1960, however, the Supreme
Court, in Elkins v. United States,'32 enunciated a deterrence rationale
of exclusion'33 while simultaneously proclaiming that the federal
courts should not be accomplices in the willful disobedience of the
United States Constitution "they are sworn to uphold"' 4-the judicial
integrity rationale of Weeks. The following year, in Mapp v. Ohio, 3 '
the Supreme Court reaffirmed the principle that the exclusionary rule is
a "deterrent safeguard" of the Fourth Amendment, 36' and "gives...
to the courts that judicial integrity so necessary in the true administration of justice.' 37 In addition, the Mapp Court quoted Elkins for
the proposition "that the purpose of the exclusionary rule is 'to deter-to compel respect for the constitutional guaranty in the only effec38
tively available way-by removing the incentive to disregard it.""
The next case to rule upon a major aspect of the exclusionary rule
was Linkletter v. Walker.13 At issue was the determination of whether
the deterrence rationale undergirding the federal exclusionary rule
would be furthered by retroactive application of new constitutional
doctrines. In Mapp, the Court had held for the first time that all evidence obtained by searches and seizures that violate the Fourth Amendment is inadmissible in a state court.'" The Court in Linkletter was
thus asked to decide whether the Mapp exclusionary rule was retrospective.' The Court concluded that the rule did not apply to state
court convictions which had become final before its rendition. 42
In arriving at this result, the Linkletter Court placed strong emphasis upon the deterrence rationale of the exclusionary rule. 4 3 It noted
that every case since Wolf v. Colorado'" that had applied the
exclusionary rule had been based on the need to effectively deter unlawful practices by law enforcement officers.'45 Moreover, the mis132. 364 U.S. 206 (1960).
133. Id. at 217 (citing Eleuteri v. Richman, 26 N.J. 506, 513, 141 A.2d 46, 50 (1958)).
134. Elkins v. United States, 364 U.S. 206, 223 (1960).
135. 367 U.S. 643 (1961).
136. Id. at 648.
137. Id. at 660.
138. Id. at 656 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).
139. 381 U.S. 618 (1965).
140. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Thus, the sanction of exclusion was made
applicable to the states, see id., as the only effective deterrent safeguard of the right to privacy,
without which the Amendment would be reduced to an "empty promise." Id. at 660.
141.
381 U.S. 618 (1965).
142. Linkletter, 381 U.S. at 636-40.
143. Id.
144. 338 U.S. 25 (1949).
145. Linkletter, 381 U.S. at 636-37.
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
conduct of the police prior to Mapp would not be corrected by releasing the prisoners subjected to such practices.'" Similarly, the Court
reasoned that reparation "comes too late," because the ruptured privacy
of victims "cannot be restored."'" 7
In United State v. Calandra,"*the United States Supreme Court
observed that the prime purpose of the exclusionary rule is to "deter
future misconduct by the police, and thereby effectuate the protection
of the Fourth Amendment against unreasonable searches and seizures."' 49 The rule, therefore, is a judicially created remedy designed
to protect the rights guaranteed by the Fourth Amendment "generally"
through its deterrent effect, rather than a personal constitutional right of
the person aggrieved.' Furthermore, the Court commented that because of its remedial function, "the application of the rule [will be]
restricted to those areas where its remedial objectives are thought most
efficaciously served."''
In 1974 and 1975, the Supreme Court further refimed the federal
exclusionary rule by holding that in order to trigger the exclusionary
rule based on the rationale of deterrence, law enforcement officers
would have to engage in willful or negligent ("should have known")
52
conduct which deprived the defendant of some constitutional right.'
Thus, in Michigan v. Tucker,' "the Court observed that the
exclusionary rule necessarily assumes that the police have engaged in
willful, or at the very least negligent, conduct which has deprived the
defendant of some constitutional right."'5 " Hence, when the conduct is
"pursued in complete good faith," the rationale of deterrence "loses
56 the Court
much of its force."'55 And, in United States v. Peltier,'
stated that because the purpose of exclusion is to deter unlawful conduct on the part of the police, evidence seized as a result of an unlaw-
146. Id. at 637.
147. Id.
148. 414 U.S. 338 (1974).
149. Id. at 347.
150. Id.at 348.
151. Id.
152. 417 U.S. 433 (1974).
153. Id.
154. Id. at 447 (emphasis added).
155. Id. Tucker involved a violation of the Miranda rules, devised to protect the Fifth
Amendment right against compulsory self-incrimination ("[n]o person... shall be compelled in
any criminal case to be a witness against himself"), prior to the decision in Miranda v. Arizona,
384 U.S. 436 (1966), and was cited with approval by the Court in United States v. Peltier, 422
U.S. 531, 539 (1975), a search-and-seizure case.
156. 422 U.S. 531 (1975).
[Vol. 15:65
ful search should be suppressed only if the officer in question knew, or
should have known,57 that the search was unconstitutional under the
Fourth Amendment.1
Finally, in Stone v. Powell,5 1 the Supreme Court came full circle
and firmly endorsed deterrence as the "primary justification" for exclusion,159 and emphatically relegated judicial integrity to a secondary
role in the execution of the exclusionary rule in search-and-seizure cases." As the Stone Court argued, the concern for preserving the integrity of the judicial process has proved to be of "limited force as a justification for the exclusion of highly probative evidence [such as, the
fruits of an illegal search and seizure]."'' For example, as the Stone
63 the Supreme Court held that judicial inCourt noted,'62 in Peltier,'
tegrity is not offended if law enforcement officers reasonably believe in
good faith that their search-and-seizure conduct is lawful, even if judicial decisions subsequent to the conduct hold that such conduct is
unconstitutional."u Moreover, one commentator has reasoned that the
disproportionality between the error committed by the police and the
windfall of exclusion as a benefit for the defendant, demonstrates why
the exclusion of evidence is not justified as a moral imperative that
prevents the courts from soiling themselves with the fruits of unconstitutional searches and seizures. 5
157. Id. at 542. The exact language used by the Court was that the officer had "knowledge,
or may properly be charged with knowledge .... " Id.
158. 428 U.S. 465 (1976) (a federal habeas corpus case).
159. Id. at 486.
160. Id. at 485.
161. Id. (footnote omitted). The Court noted that judicial integrity would require courts to
exclude unlawfully seized evidence despite the defendant's assent to the admission of the evidence
or the lack of his objection thereto. Id. It would also require abandonment of the standing requirements for who may object to the admissibility of unconstitutionally seized evidence. Id. Further,
judicial integrity would undermine the rule that judicial proceedings do not have to abate because
the defendant's person has been unconstitutionally seized. Id. Similarly, judicial integrity will not
prevent the use of unlawfully seized evidence in grand jury proceedings. Powell, 428 U.S. at 485.
Nor will it bar the admission of such evidence at trial for impeachment of the defendant. Id.
162. Powell, 428 U.S. at 485-86 n.23.
163. 422 U.S. 531 (1975).
164. Id. at 537-38.
165. Kaplan, supra note 131, at 1036. The retort to this argument is that protecting the
Fourth Amendment is worth the cost of exclusion. Personal privacy is the principal, and priceless,
value underlying the guarantees of the Amendment. See Elkins v. United States, 364 U.S. 206,
222 (1960); Olmstead v. United States, 277 U.S. 438, 473 (1928) (Brandeis, I., dissenting); Boyd
v. United States, 116 U.S. 616, 630 (1886). Thus, the makers of the Federal Constitution conferred, as against the Federal Government, the right to be let alone. To secure that right, every
unreasonable intrusion by law enforcement officers upon the individual's privacy, "whatever the
means employed," must be deemed a violation of the Amendment. Olmstead, 277 U.S. at 478
(Brandeis, J, dissenting) (emphasis added). Moreover, a governmental tribunal, such as a court,
FACTUAL BASIS FOR A SEARCH WARRANT
In conclusion, the deterrence rationale of the federal exclusionary
rule has become so deep-rooted that application of the rule is now
defined by the degree of expectation its use will have in altering the
behavior of law enforcement officers."6 The issue before a reviewing
court, therefore, is whether the sanction of exclusion is properly imposed in a particular case, and not whether the rights of the defendant
under the Fourth Amendment were violated by the conduct of law
enforcement officers.167 This approach, with all due respect, is a classic example of misdirected focalization, for the ultimate responsibility
of the United States Supreme Court is to interpret and apply the Federal Constitution and not to psychoanalyze the intentions, motives, or
mental processes of the police. The net result, therefore, is that the
appropriate imposition of the exclusionary sanction will often hinge on
the good faith intentions of law enforcement officers, and not on their
violation of Fourth Amendment rights. 6 ' Neither should the Court
shirk its duty, pursuant to the oath of its members, to uphold the United States Constitution. 69 In fact, the Supreme Court has acknowledged that, in applying the Fourth Amendment, it has not been "unaware of the practical demands of effective criminal investigation and
law enforcement."' 70 Regrettably, this statement has more of a political, than a judicial, ring to it. In its zeal to apply the effective law
enforcement approach to interpreting the Fourth Amendment, the Court
has ignored the clear command of the Warrant Clause that "no Warrants shall issue, but upon probable cause."'' This command is an
absolute, and will suffer no exceptions, least of all, the good faith
intentions of law enforcement officers.
The United States Supreme Court must redirect its focus and acknowledge that the constitutional mandate of probable cause takes
that admits evidence unlawfully seized encourages disobendience to the "Federal Constitution
which it is bound to uphold." Mapp v. Ohio, 367 U.S. 643, 657 (1961). Accordingly, reasonably
strict search-and-seizure requirements are not too costly a price to pay against the dangers incident
to invasions of homes, personal possessions, and private papers by overzealous and oppressive law
enforcement officers. United States v. Rabinowitz, 339 U.S. 56, 68 (1950) (Black, J., dissenting).
166. See Illinois v. Krull, 480 U.S. 340, 348-50 (1987); Leon, 468 U.S. at 916, 918.
167. Leon, 468 U.S. at 906.
168. See Leon, 468 U.S. at 906; Franks, 438 U.S. at 155-56, 171 (endorsing application of
exclusionary rule to allegations of deliberate falsehood or of reckless disregard for the truth by a
police officer in a supporting affidavit for a search warrant); United States v. Peltier, 422 U.S.
531, 542 (1975) (applying exclusionary rule to officers who knew, or should have known, that the
search in question was unconstitutional); Michigan v. Tucker, 417 U.S. 433, 447 (1974) ("willful,
or at the very least negligent, conduct" required to trigger exclusion).
169. Elkins v. United States, 364 U.S. 206, 223 (1960).
170. Id. at 222.
171. U. S. CONST. amend. IV (emphasis added).
[Vol. 15:65
precedence over the good faith intentions of law enforcement officers.
Once it does this, the proper scope of the federal exclusionary rule will
have been established. Until this happens, however, the extremely
limited scope of the rule will prevent the full implementation of the
Fourth Amendment's guarantees.
B. State v. Marsala'
In order to determine whether the Connecticut Constitution affords
greater rights than those secured by the Federal Constitution, the Connecticut Supreme Court has considered the following tools of analysis
to the extent that they are applicable:
(a) the specific words in the Connecticut Constitution;
(b) holdings and dicta of the Connecticut Supreme Court and the Appellate
Court;
(c) federal precedent;
(d) the sibling approach, requiring an examination of relevant decisions from
other states;
(e) historical insights into the intent of the framers of the Connecticut Constitution; and
(f) economic and sociological, or public policy, considerations.'
With respect to the textual and historical approaches, the "text of
Article First, Section Seven is clear: '[N]o warrant... shall issue ...
without probable cause supported by oath or affirmation."" 7 Similarly, when the Probable Cause Clause of Article First, Section Seven
of the Connecticut Constitution was adopted, "'its purpose plainly was
to prohibit the issuance of warrants that did not satisfy [the require"7 Thus, while the history of Article
ment] of probable cause'....,,,
First, Section Seven does not illuminate the proper scope of inquiries
into the veracity of supporting affidavits for search warrants, it clearly
supports the conclusion that the framers, who strongly supported the
requirement of probable cause, would never have tolerated judicial
procedures that prevented the exposure of documents that fabricated the
existence of probable cause.
The governing federal precedent is Franks, which has been ap-
172. 216 Conn. 150, 579 A.2d 58 (1990) (en banc).
173. See State v. Linares, 232 Conn. 345, 379, 655 A.2d 737, 753 (1995); State v. Ross, 230
Conn. 183, 249, 646 A.2d 1318, 1356 (1994); State v. Miller, 227 Conn. 363, 380-81, 630 A.2d
1315, 1323-24 (1993); State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225, 1232 (1992).
174. Marsala, 216 Conn. at 167, 579 A.2d at 66.
175. Id. (quoting Silas Wasserstrom & William Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 AM. CRIM. L. REv. 85, 106 (1984)).
19951
FACTUAL BASIS FOR A SEARCH WARRANT
plied by the Connecticut courts.'76 It should be emphasized, however,
that the appellate courts of Connecticut have not been confronted with
a direct challenge to the scope of the Franks inquiry pursuant to the
authority of Article First, Section Seven. The only challenge to Franks
that has reached the Connecticut Supreme Court, in State v.
Delmonaco,' was deemed "not properly before this court."'7 On
appeal, the defendant contended, for the first time, that Article First,
Section Seven provided broader protection against unlawful searches
than that provided by the Franks rule.'79 He argued that the Franks
rule was insufficient, because it allowed the police to include in the
supporting affidavit false information at the risk of having the false
information excised if discovered and probable cause reassessed on the
basis of the accurate representations contained in the affidavit. 8 ' The
net result, therefore, was that the police would be left in a "can'tlose"'' situation when deciding what information to include in an affidavit, and the Franks rule would be an ineffective protection against
searches that are not supported by probable cause.' The court concluded that "[h]owever persuasive the defendant's claim might be, it
[was] not properly before this court,"'8 3 because the rule for which
the defendant argued was inapplicable to the facts of this case as found
by the trial court. 4
An examination of relevant decisions from other states reveals that
Colorado, pursuant to the authority of its constitution, 5 has extended
176. See supra notes 93, 98-106 and accompanying text.
177. 194 Conn. 331, 481 A.2d 40, cert. denied, 469 U.S. 1036 (1984).
178. Id. at 336, 481 A.2d at 43.
179. Id. at 335, 481 A.2d at 43.
180. Id.
181. Delnonaco, 194 Conn. at 335, 481 A.2d at 43.
182. Id. at 335-36, 481 A.2d at 43.
183. Id. at 336, 481 A.2d at 43.
184. Id. The defendant had failed, at the hearing on his motion to suppress, to seek the opportunity to establish that the affiant had knowingly or recklessly included false information in the
affidavit. Id. Moreover, during the suppression hearing, defense counsel stated that the tainted information in question .'was a mistake' and not a deliberate falsehood." Delmonaco, 194 Conn. at
335, 481 A.2d at 43.
185. COLO. CONST. art. I, § 7.
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or
things shall issue without describing the place to be searched, or the person or thing to
be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.
Id. (emphasis added).
It is significant that the italicized text that addresses the requirement of probable cause is
identical to that appearing in Article First, Section Seven of the Connecticut Constitution.
(Vol. 15:65
the scope of veracity inquiries to include statements or allegations of
informants.1 6 Such inquiries will encompass an informant's (1) perjury, (2) reckless disregard for the truth, (3) negligence, or (4) good faith
mistake." 7 In addition, Colorado has adopted the "less demanding" ' standard that the defendant is entitled to a veracity hearing upon a showing of "some good faith basis in fact to question the
accuracy" of a supporting affidavit for a search warrant." 9
The costs associated with expanding veracity inquiries to include
statements or allegations of informants should prove to be negligible.
Given the fact that the very scope of such proceedings will put law enforcement officers upon notice, the officers bear the burden to conduct
thorough investigations into the credibility of informers and the reliability of their tips. Moreover, it is in the best interests of the officers
to protect both themselves and the warrant-issuing process from fraudulent practices based upon fabricated accusations. The same interests of
the magistrates will also be secured by such concerns. This enhanced
scrutiny by both officer and magistrate can be conducted in a relatively
short period of time, and will send a strong message to informants that
unlawful practices will not be tolerated. Society cannot tolerate a violation of the law in order to secure a conviction. The net result will be
that the number of such fabrications or unlawful practices will be drastically reduced, and the educational aspects of the warrant-issuing process will have been reinforced. Ultimately, the community will have a
greater trust in the integrity and accuracy of judicial proceedings.
Finally, the citizens and residents of Connecticut neither condone
nor benefit from unlawful judicial practices, especially when those
practices violate constitutional norms. The fundamental question at
issue, therefore, is whether a democratic society is enlightened by tolerating the substantial possibility of the issuance of search warrants in
criminal proceedings on the basis of fabricated allegations of wrongdoing? In order to address this question, one must analyze Marsala.
186. People v. Flores, 766 P.2d 114, 119-20 (Colo. 1988) (en banc); People v. Millitello,
705 P.2d 514, 518 (Colo.1985) (en banc); People v. Nunez, 658 P.2d 879, 881 (Colo.) (en banc),
cert. granted, 464 U.S. 812 (1983), cert. dismissed, 465 U.S. 324 (1984); People v. Dailey, 639
P.2d 1068, 1075 (Colo. 1982) (en banc).
187. People v. Millitello, 705 P.2d 514, 518 (Colo. 1985) (en banc); People v. Dailey, 639
P.2d 1068, 1075 (Colo. 1982) (en banc).
For analysis of the collateral issues of requiring the government to reveal the identity of a
confidential informant, and to make him available to testify, see McCray v. Illinois, 386 U.S. 300
(1967); Roviaro v. United States, 353 U.S. 53 (1957); People v. Flores, 766 P.2d 114 (Colo. 1988)
(en banc); People v. Dailey, 639 P.2d 1068 (Colo. 1982) (en banc).
188. People v. Cook, 722 P.2d 432, 435 (Colo. App. 1986).
189. People v. Dailey, 639 P.2d 1068, 1074-75 (Colo. 1982) (en banc).
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
The ratio decidendi of Marsala-the fundamental need to enhance
the integrity of the warrant-issuing process-applies equally to procedures devised to enhance the veracity of that same process. The
Marsala court agreed with the argument of Justice Potter Stewart that
the costs of the exclusionary rule are not a matter quite distinct from
the Fourth Amendment." To Justice Stewart, much of the criticism
leveled at the rule is misdirected, in that it is the Fourth Amendment
itself, and not the exclusionary rule, that places limitations on the actions of the police. This means, therefore, that the inevitable result of
the Amendment's prohibition of unreasonable searches and seizures and
its requirement that no warrant shall issue but upon probable cause, is
that police officers who comply with its strictures will apprehend fewer
criminals. 9 This result, argued Justice Stewart, is the price that the
framers of the United States Constitution anticipated and were willing
to pay to ensure the sanctity of the individual, his home, and his possessions against unrestrained governmental power.'92
It is apparent, therefore, that the nemesis of inadequate presentations by the police in affidavits submitted in support of search warrant
applications is the Fourth Amendment. What distinguishes Marsala
from Leon, and makes its rationale so significant for the issue of veracity attacks upon supporting affidavits for warrant applications, is that
Marsala extended the scope of the exclusionary rule, which itself seeks
"to effectuate the guarantees of the Fourth Amendment,"'9 3 to encompass the warrant-issuing process inclusive of objectively reasonable
conduct on the part of the police. 4 The Marsala court thus refused
to assume that the exclusionary rule was not designed to deter the
issuance of invalid warrants.'9 5 Moreover, the court acknowledged
that the purpose of Article First, Section Seven of the Connecticut
Constitution is to prohibit the issuance of warrants that do not satisfy
its requirements of probable cause and particularity.' 9 As the court
emphatically observed, "[t]he text of article first, § 7 is clear: '[N]o
warrant... shall issue ... without probable cause supported by oath
190. Marsala, 216 Conn. at 164, 579 A.2d at 65.
Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and
191.
Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REv. 1365, 1392-93
(1983).
192. Id.
193. Rakas v. Illinois, 439 U.S. 128, 134 (1978).
194. Marsala, 216 Conn. at 170, 579 A.2d at 68.
195. Id.
196. Id. at 167, 579 A.2d at 66.
[Vol. 15:65
or affirmation."" 97 Similarly, the Fourth Amendment embodies a constitutional command that "no Warrants shall issue, but upon probable
cause."19' In addition, the court in Marsala rejected the argument that
the exclusionary rule, as it stood before Leon, was not a "significant
factor" inducing judges to take seriously their obligation to ensure that
the probable cause requirement of Article First, Section Seven of the
Connecticut Constitution had been satisfied before issuing warrants
based upon information contained in supporting affidavits provided to
them by police officers.' 9 The court was confident that, in Connecticut, warrants failing to meet the probable cause requirement more often
result from carelessness than from intentional constitutional violations,
and that "just as surely the exclusionary rule is logically directed to
those more common violations."2 '0 Accordingly, when the determination of probable cause is overturned on appeal, the judge who issued
the warrant is being informed that a constitutional violation has taken
place, and is also being instructed in how to avoid such violations in
the future.2"' The net result, therefore, is that applying the
exclusionary rule to the warrant-issuing process will influence judicial
behavior by creating an incentive to err on the side of constitutional
behavior.2 2 "Thus, the more important issue is the extent to which
the exclusionary rule protects the integrity of the warrant-issuing process as a whole. 2 3
The Marsala court addressed this issue by citing several negative
consequences resulting from the application of a good faith exception
to the exclusionary rule to the warrant-issuing process that would impact upon cases involving claims of insufficient probable cause,2 °
which was precisely the claim raised in Marsala.2 5 For example, the
court noted that applying the good faith exception to the process would
encourage some police officers to expend less effort in establishing the
necessary probable cause to search and more effort in locating a judge
who might be less exacting than some others when ruling on whether a
197. Id.
198. U. S. CONST. amend. IV; see United States v. Harris, 403 U.S. 573, 588 (1971) (Harlan,
J., dissenting).
199. Marsala, 216 Conn. at 167, 579 A.2d at 66.
200. Id. at 168, 579 A.2d at 67 (quoting 1 LAFAvE, supra note 122, § 1.3(d), at 55).
201. Id. at 168, 579 A.2d at 67.
202. Id. (quoting United States v. Johnson, 457 U.S. 537, 561 (1982)).
203. Marsala, 216 Conn. at 168-69, 579 A.2d at 67 (quoting Silas Wasserstrom & William
Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 AM. CRiM. L. REV.
85, 109 (1984)).
204. Id. at 169, 579 A.2d at 67.
205. See id. at 152-53 & n.3, 579 A.2d at 59 & n.3.
FACTUAL BASIS FOR A SEARCH WARRANT
particular affidavit has established the requisite level of probable
cause.2' In addition, applying the good faith exception to the warrant-issuing process implicitly tells judges that it is not necessary for
them to take much care in reviewing warrant applications, "'since their
mistakes will from now on have virtually no consequence'....""
The court in Marsala then proceeded to detail the educative effects of applying the exclusionary rule to the warrant-issuing process;
effects which apply significantly to veracity-attack cases. In the first
place, the court observed that the rule is designed to deter future misconduct by the police and to "ensure, as nearly as can be, institutional
compliance" with the warrant-issuing requirements of Article First,
Section Seven of the Connecticut Constitution. 8 The relevant inquiry, therefore, according to the Marsala court, is whether the sanction of
exclusion is "appropriate" in cases where the police officer in question
"believed that he was doing everything correctly, but in fact had not
supplied the issuing authority with information sufficient to meet the
constitutional requirement of probable cause." 2' The court concluded
that the exclusionary rule "is appropriate in these situations."21'
Furthermore, the court in Marsala adopted the analysis of Justice
Brennan in his dissenting opinion in Leon, where Justice Brennan reasoned that if the overall educational effect of the exclusionary rule is
considered, application of the rule to even those situations in which
police officers have acted on the basis of "a reasonable but mistaken
belief that their conduct was authorized" can have a "considerable
long-term deterrent effect."2"' For example,
if evidence is consistently excluded in these circumstances, police departments will "surely" be prompted to instruct their officers "to devote greater
care and attention to providing sufficient information" to establish probable
cause when applying for a warrant, and to review "with some attention" the
form of the warrant that they have been issued.22
This attention to care and detail in the warrant-issuing process is of
great significance to its integrity. The Marsala court has put the law
206.
207.
897, 956
208.
209.
Id. at 170, 579 A.2d at 68.
Marsala, 216 Conn. at 169, 579 A.2d at 67 (quoting United States v. Leon, 468 U.S.
(1984) (Brennan, J., dissenting)).
Id. at 170, 579 A.2d at 68 (emphasis added).
Id. (emphasis added).
210.
Id.
211.
Marsala,216 Conn. at 171, 579 A.2d at 68 (quoting United States v. Leon, 468 U.S.
897, 955 (1984) (Brennan, J., dissenting)) (emphasis added).
212.
Id. (emphasis added).
[Vol. 15:65
enforcement officers of Connecticut on notice that "we are simply
unable to sanction a practice in which the validity of search warrants
might be determined under a standard of 'close enough is good
enough' instead of under the 'probable cause' standard mandated by
Article First, Section Seven of the Connecticut Constitution. 21 3
The analysis applied by the court in Marsala is conceptually consistent with procedures designed to sanction a broad inquiry by the
courts of this state into the veracity of allegations contained in affidavits to establish probable cause. 214 The restrictive scope of inquiry
and exclusion applied by the United States Supreme Court in Leon is a
natural outgrowth of the deterrence rationale of the federal exclusionary
rule. That rationale dictates that the basic purpose of the rule is to deter
future unlawful police conduct215 by removing the incentive to disregard the guarantee of the Fourth Amendment against unreasonable
searches and seizures.216 In this way, law enforcement officers will be
compelled to respect the constitutional guarantee.2 7
Since 1960, when deterrence was adopted by the Supreme Court,
in Elkins v. United States,215 as the "prime purpose" of the
exclusionary rule,21 9 the Court has come to perceive the rule as a judicially created remedy designed to protect the Fourth Amendment'222
by penalizing the errant officer for his constitutional misconduct. '
As with any remedial device, application of the exclusionary rule has
been restricted by the United States Supreme Court to those situations
in which its remedial purpose is effectively advanced. 2 The issue
before a federal court, therefore, is whether the sanction of exclusion is
213. Id.
214. To qualify for an evidentiary hearing on the issue of false information supplied to an
affiant-officer by an informant, the Franks procedures, see supra notes 6, 10-11, and accompanying text, may be employed in modified form to be consistent with the focus of the attack upon the
veracity of the informant. The inquiry, however, must be broader than the Franks approach to
encompass any falsity of the informer.
215. See, e.g., Illinois v. Krull, 480 U.S. 340, 348 (1987); United States v. Calandra, 414
U.S. 338, 347 (1974).
216. Elkins v. United States, 364 U.S. 206, 217 (1960).
217. Id. at 217. But see Kaplan, supra note 131, at 1050 (arguing that departmental rewards
and sanctions are more important to police officers than the threat of exclusion of any evidence
they may illegally seize, and that officers are generally not disciplined by their departments for the
suppression of evidence).
218. 364 U.S. 206 (1960).
219. United States v. Calandra, 414 U.S. 338, 347 (1974); accord Stone v. Powell, 428 U.S.
465, 486 (1976).
220. Calandra, 414 U.S. at 348.
221. See, e.g., Leon, 468 U.S. at 916, 921.
222. Krull, 480 U.S. at 347.
FACTUAL BASIS FOR A SEARCH WARRANT
appropriately imposed in a particular case." 3 Thus, the focal point of
the rule is the misconduct of law enforcement officers, and does not
extend to the constitutional errors of judges and magistrates.224 This
means, therefore, that a defendant may not successfully invoke suppres225 or
sion when the conduct of the police is objectively reasonable
when it cannot be said that the officer had, or may properly be charged
with, knowledge that the search or seizure in question was unconstitutional under the Fourth Amendment. 6
The most striking aspect, however, of the limited scope of the
federal exclusionary rule is that the issue before a federal court is
whether the sanction of exclusion is properly imposed in a particular
case, and not whether the Fourth Amendment rights of the defendant
invoking the rule were violated by the conduct of the police.227 This
approach is in dramatic contrast with the judicial integrity rationale
adopted by the United States Supreme Court in Weeks v. United
States,"' where the Court first applied the exclusionary rule.229
Writing for the Court, Justice Day declared that any attempt by "those
who execute the criminal laws of the country to obtain conviction by
means of unlawful seizures" would find "no sanction in the judgments
of the courts which are charged at all times with the support of the
Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights."' In this inspiring statement, the Court was putting the executive branch of the
federal government on notice that convictions would not be obtained in
federal courts by means of practices that violate the United States Constitution. Under this approach, the issue for the Court in Weeks was in
fact whether the Fourth Amendment rights of the defendant moving to
suppress were violated by the conduct of the federal agents. Weeks thus
focused on the constitutional violation and not on the good faith objectively reasonable conduct of the officer in question.'
In short, the
Weeks Court examined the net result of the officer's conduct, rather
than the quality of that conduct or his mental state and motives while
223.
224.
225.
226.
227.
228.
229.
230.
231.
Id.
Id.
See Leon, 468 U.S. at 919-21.
See United States v. Peltier, 422 U.S. 531, 542 (1975).
Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).
232 U.S. 383 (1914).
See id. at 398.
Id. at 392 (emphasis added).
See generally Weeks, 232 U.S. at 391-92.
[Vol. 15:65
engaging in it.232 As the Court observed:
The efforts of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those great
principles established by years of endeavor and suffering which have resulted
in their embodiment in the fundamental law of the land.'33
Consistent with this approach is the analysis of reasonableness in
the jurisprudence of warrants. "Under the Fourth Amendment, a judicial officer may not properly issue a warrant unless he can find probable cause therefor from facts or circumstances presented to him under
'
oath or affirmation."234
Thus, in cases in which the Fourth Amendment requires that a warrant be obtained, probable cause is the standard
by which a particular decision to search is tested against the constitutional mandate of reasonableness.235 Probable cause, therefore, is the
"touchstone" of reasonableness under the Fourth Amendment, 236 and
of "central importance" to the individual's privacy afforded by the
Amendment's guarantee. 7 This insistence upon probable cause "has
roots that are deep in our history, 238 and the requirement of such
cause must be "strictly enforced ' 239 by the courts of this nation, for
the standard set by the United States Constitution protects the privacy
and security interests of the individual. 2" It is not surprising,
therefore, that James Madison described security against general warrants as one of "the rights of Conscience in the fullest latitude ....
Moreover, the Amendment "absolutely" forbids "[a]ll
unreasonable searches and seizures ....,242
What is constitutionally reasonable or unreasonable, therefore, in
the warrant-issuing process is not so much the conduct of the police as
it is the existence or nonexistence of probable cause. Hence, scrutinizing the activities of the police is looking in the wrong direction. A
police officer conducting a criminal investigation does not create or
invent evidence establishing probable cause, but rather, discovers such
evidence by means of various investigative techniques. 243 Thus, his
232.
233.
Id. at 391-92, 398.
Id. at 393 (emphasis added).
234.
United States v. Nathanson, 290 U.S. 41, 47 (1933).
235.
See Camara v. Municipal Court, 387 U.S. 523, 534 (1967).
236.
237.
238.
239.
Hill v. California, 401 U.S. 797, 804 (1971).
Dunaway v. New York, 442 U.S. 200, 213 (1979).
Henry v. United States, 361 U.S. 98, 100 (1959).
Id. at 102 (emphasis added).
240.
241.
242.
243.
See id.
11 THE PAPERS OF JAMES MADISON 405 (Robert A. Rutland et al., eds., 1977).
Nathanson, 290 U.S. at 46.
See JOHN G. NELSON, PRELIMINARY INVESTIGATION AND POLICE REPORTING: A COM-
1995]
FACTUAL BASIS FOR A SEARCH WARRANT
conduct, however objectively reasonable or unreasonable, is irrelevant
to the actual existence, as distinguished from the discovery, of probable cause. It is that cause, and not the conduct of the police, which
constitutionally protects the privacy interests of the individual. The
central inquiry, therefore, for a judge or a reviewing court, in passing
upon the issue of reasonableness in the warrant-issuing process, should
be focused upon the factual existence of probable cause, and not upon
the conduct of the police. Such conduct, while not irrelevant, simply
does not define the paramount issue of probable cause in this process.
Accordingly, if in fact, there is no probable cause, then irrespective of
the conduct of the police there can be no warrant.
Marsala, therefore, is a landmark case in the jurisprudence of
search-and-seizure law in Connecticut. It rejected the good faith exception to the exclusionary rule and, more importantly, applied the rule not
only to the deterrence of police misconduct, but also to the preservation
and enhancement of the integrity of the warrant-seeking process. 2"
As a result, it is submitted that the Marsala decision has opened up to
judicial inquiry and scrutiny, on a motion to suppress, the specific
factual areas of warrant affidavits deemed off limits by the United
States Supreme Court in Franks. For example, the Marsala court specifically held that "the sanction of the exclusionary rule is appropriate
in cases where the officer in question believed that he was doing everything correctly, but in fact had not supplied the issuing authority with
information sufficient to meet the constitutional requirement of probable cause."245 Clearly, a veracity attack that effectively removes from
an affidavit false material supplied by an informant to a police officer
who is ignorant of the informant's deception or fabrication, thereby
making the affidavit's "remaining content... insufficient to establish
probable cause," 2 has created a situation that is comparable to the
scenario addressed by the court in Marsala. In both instances, the
officer "in fact had not supplied the issuing authority with information
sufficient to meet the constitutional requirement of probable cause."247
In each instance, the officer in question has acted in an objectively
reasonable manner, but has failed to supply the issuing authority with
sufficient factual information "to meet the constitutional requirement of
PLETE GUIDE TO POLICE WRITTEN COMMUNICATION 259-68 (1970).
244.
245.
246.
247.
Marsala,216 Conn. at 170-71, 579 A.2d at 68.
Id. at 170, 579 A.2d at 68 (emphasis added).
Franks, 438 U.S. at 156.
Marsala, 216 Conn. at 170, 579 A.2d at 68 (emphasis added).
[Vol. 15:65
probable cause." 2 The difference is that Franks rejected exclusion,
while Marsala endorsed it. It should be acknowledged that the Franks
rule is thoroughly compatible with the rationale of the federal
exclusionary rule. After all, when the cause of exclusion is the conduct
of the officer-affiant in misleading the judicial authority issuing the
warrant being challenged, the deterrent function of the exclusionary
rule is being served particularly well.249 Accordingly, the limited
scope of the Franks edict was virtually a foregone conclusion once the
Supreme Court had committed itself to sanction veracity attacks against
supporting affidavits for warrant applications.
The clear thrust of Marsala is to preserve the constitutional vitality of the probable cause requirement of Article First, Section Seven of
the Connecticut Constitution and to enhance the integrity of the warrant-issuing process." To reject veracity attacks against affidavits for
search warrants pursuant to the Franks rule, even when an informer has
lied to an unsuspecting affiant-police officer by knowingly making
false accusations against the defendant," is to do disservice to
Marsala. The word "false" denotes something that is not real." 2
Moreover, what is not true does not exist."3 To issue a search warrant on the basis of probable cause that has the appearance of reality,
but which in fact does not exist, is to make a mockery of the probable
cause requirement and to undermine the integrity of the warrant-issuing
process. In reality, there is no probable cause and the warrant is a
constitutional nullity. Furthermore, a fraud has been perpetrated upon
the judicial authority issuing the warrant by the informant who, when
he supplies information to the police on a regular basis, is likely to be
an individual who is himself involved in criminal activity." 4
Such persons are typically undisclosed informants whose motives
include offers of immunity or sentence reduction in exchange for cooperation, promises of money payments, and such base motives as re-
248. Id.
249. 2 LAFAvE, supra note 122, § 4.4(a), at 188.
250. See Marsala, 216 Conn. at 167-69, 170-71, 579 A.2d at 66-67, 68.
251. See United States v. Southard, 700 F.2d 1, 10 (1st Cir.), cert. denied, 464 U.S. 823
(1983); United States v. Schauble, 647 F.2d 113, 117 (10th Cir. 1981).
252. United States v. Darby, 2 F. Supp. 378, 379 (D. Md.), rev'd on other grounds, 289 U.S.
224 (1933).
253. See Darby, 289 U.S. at 226 (quoting with approval Agnew v. United States, 165 U.S.
36, 52 (1897)).
254. United States v. Harris, 403 U.S. 573, 599 (1971) (Harlan, J., dissenting) (discussing
informants who supply information to the police on a regular basis, and thus likely to be involved
in criminal activity); MALACm L. HARNEY & JOHN C. CROSS, THE INFORMER INLAW ENFORCEMENT 40 (2d ed. 1968); see Barton, 219 Conn. at 542 n.10, 594 A.2d at 925-26 n.10.
19951
FACTUAL BASIS FOR A SEARCH WARRANT
venge or the hope of eliminating criminal competition.255 In the case
of a paid informant, or one who is otherwise rewarded, who perpetrates
a fraud upon the issuing authority, the affiant-officer, who endorses the
informant's false allegations, will be legally considered the principal
who will be liable for the agent-informant's fraud under the principles
of agency.2 6 In this setting, the police officer is responsible for the
actions of his agent-informant. Compounding the deceit of the informant is the regrettable fact that the judge issuing the warrant will likely
be relying upon the "information" provided by him, primarily because
the affiant-officer is himself implicitly vouching for the truth of the
allegations of the informer by typically describing him as a reliable or
known informant who has previously supplied information leading to
the arrest and successful prosecution of defendants in numerous, or a
specified number of, cases. Thus, the fact that the typical informer,
often operating from inherently suspect motives, may have provided
reliable information in the past, provides no assurance that he is not
now seeking revenge on an enemy or implicating an innocent perto narcotics informants, their reliability is
son.7 And, with respect
"obviously suspect. ' The fact that their information may have produced convictions in the past does not justify taking their reports "on
faith. '25 9 Regrettably, the present informer practice amounts to condoning felonies "on condition that the confessed or suspected felon
brings about the conviction of others. ' 26 Under such "stimulation[,] it
reach for shadis to be expected that the informer will not infrequently
' 261
innocent.
the
incriminate
to
seek
even
or
owy leads,
The Franks approach encourages complacency on the part of the
police, and, quite frankly, rewards them for being lazy or incompetent.
At a minimum, the police will be discouraged from conducting thorough investigations of alleged criminal conduct brought to their attention by their regular informants. If material errors by such informers do
not invalidate the issuing warrants, there will be no inducement for fur-
255. See Barton, 219 Conn. at 542, 594 A.2d at 925-26; Michael A. Rebell, Comment, The
Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 YALE
L.J. 703, 713 (1972).
256. See FLOYD R. MECHEM, OUTLINES OF THE LAW OF AGENCY § 129, at 85 (Philip
Mechem, 4th ed. 1952); RESTATEMENT (SECOND) OF AGENCY § 257, at 558 & cmt. at 558, 559
(1957).
257. Rebell, supra note 255, at 714.
258. Jones v. United States, 266 F.2d 924, 928 (D.C. Cir. 1959).
259. Id. (emphasis added).
260. Id.
261. Id. (footnote omitted) (emphasis added).
[Vol. 15:65
ther investigation,262 which is one of the basic functions of police
officers.2 63 Furthermore, the restrictive scope of the Franks
exclusionary rule obstructs the continuing education of judges reviewing supporting affidavits, thereby endangering the integrity of the warrant-issuing process. Similarly, when the informant's allegations are
false, and such information lends sufficient credence to the affidavit to
convince the judicial authority that there exists probable cause for the
issuance of a search warrant, the defendant's privacy, possessions, and
property have been unlawfully invaded and disrupted, and the integrity
of the warrant-issuing process has been compromised in clear violation
of Marsala. In like manner, exempting search warrant affidavits containing allegations that are objectively inaccurate due to honest mistakes from veracity inquiries will immunize the hearsay from contradiction," thereby doing equal violence to the Marsala mandate. Once
again, the officer will be discouraged from conducting an in-depth and
broadly exhaustive investigation, as should be expected of law enforcement officers charged with upholding the protection guaranteed by
Article First, Section Seven of the Connecticut Constitution, and the
integrity of the warrant-issuing process will be compromised.
V.
CONCLUSION
If the basic purpose of a trial is "the determination of truth,"265
then that same "determination" applies with equal force to pretrial
criminal proceedings and procedures. Marsala enlightens the path of
truth by broadening the exclusionary rule to implicitly include objectively reasonable conduct on the part of a police officer that involves
an informant who has lied to, or who has otherwise provided inaccurate
material information to, the unsuspecting officer, which is incorporated
by the officer, to establish probable cause, into an affidavit in support
of an application for a search warrant. Marsala, therefore, firmly rejects conduct or allegations that compromise both the probable-cause
requirement and the warrant-issuing process. Accordingly, the net result
of the Marsala approach is to preserve the constitutional vitality of the
probable cause requirement of Article First, Section Seven of the Connecticut Constitution, and to enhance the integrity of the warrant-issuing process.
262. Jerry Schlichter, Comment, The Outwardly Sufficient Search WarrantAffidavit: What If
It's False?, 19 U.C.L.A. L. REV. 96, 140 (1971).
263. See NELSON, supra note 243, at xv.
264. MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE § SS 290.3 cmt., at 569 (1975).
265. Tehan v. United States ex relShott, 382 U.S. 406, 416 (1966).
FACTUAL BASIS FOR A SEARCH WARRANT
This is not a high price to pay, because the Connecticut Constitution is the true winner in this process. The last thing that any judge
wants to do is to issue a search warrant on the basis of false information to establish probable cause. The courts of this state, therefore,
must be vigilant against any such insidious assaults upon the constitutional requirement of probable cause, which protects the privacy and
security of Connecticut residents against unreasonable intrusions by the
police.
In 1803, John Marshall wrote that the "government of the United
States" is "a government of laws . . . ."" Nearly eighty years later,
the United States Supreme Court commented that "[n]o man in this
country... is above the law." 7 Consistent with this longstanding
commitment to the rule of law, this article is dedicated to the proposition that informants who supply false information to police officers to
establish probable cause for search warrants are most emphatically
under the law and subject to intense scrutiny in the warrant-issuing
process. All will benefit from this proposition: the individual citizen,
from the security and knowledge that his privacy interests will be ruptured only pursuant to constitutional norms; the judiciary, from its
essential role as guardian of constitutional protection; society, from the
enhanced accuracy of the warrant-issuing process; and the police, from
securing convictions that will stand up to constitutional scrutiny.
266.
267.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
United States v. Lee, 106 U.S. 196, 220 (1882).