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Search Warrants Review – Warrant Friendly Judicial Attitude


Robert C. Bonsib, Esq.

Does there really remain any meaningful opportunity to challenge the truthfulness and material completeness of the information a police officer includes in a search warrant affidavit? Can a police officer, with no fear of consequence or being exposed, exaggerate information, fail to include material information that might undercut a showing of probable cause, misrepresent information to a judge reviewing a search warrant application or simply be lazy in failing to prepare an objectively sufficient probable cause affidavit in support of a search warrant?

Combining the nearly insurmountable challenges placed in front of one seeking to controvert the truthfulness of information in a search warrant, with the presumption of validity afforded to search warrants where probable cause has been found to exist by the issuing judge, one can legitimately raise the question as to whether rather than simply encouraging a police officer to get search warrants the courts have created a virtually impenetrable shield that protects a police officer from having a search warrant reviewed no matter how “thin” the probable cause, how inaccurate the included information may be, or whether material information was purposely omitted.

This article will review the procedural challenges posed by Franks v. Delaware in challenging the contents of a search warrant and then review an interesting analysis by the Honorable Charles Moylan in a case decided late last year by the Court of Special Appeals that re-affirms that probable cause determinations by the issuing judge are nearly immune from subsequent review. Assuming, arguendo, there still exists the “theoretical” challenge to a search warrant affidavit on the basis that it fails the “bare bones” test for minimal probable sufficiency (An affidavit that is “bare bones” is an affidavit that might be considered to be “lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable” such that the Leon good faith exception would not apply. U.S. v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 3421 (9184); a “bare bones” affidavit is one that contains “wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause.” United States v. Laury, 985 F.2d 1293, 1311 n. 23 (5th Cir.1993); Patterson v. State, 401 Md. 76, 106-7; 93 A.2d 348, 367 (2007)).

Judge Moylan, in his always entertaining style, reviews why any challenge to a probable cause finding by the issuing judge is essentially immune from a later meaningful review by a judge hearing a challenge to the search warrant. Judge Moylan directs that the reviewing court view the affidavit with a “smile.”

The Franks’ procedural thresholds combined with the warrant friendly analysis in Johnson. v. State, 208 Md. App. 573, 56 A.3d 830 (2012) make the daunting challenge of attacking the validity of a search warrant one that is even more unlikely to succeed.

The Franks Hearing

While normally a motions hearing court, in considering the sufficiency of an affidavit in support of a search warrant during a motion to suppress, is limited to reviewing the information contained within the “four corners” of the affidavit and will not permit a challenge to the accuracy or reliability of the information set forth within the “four corners” of the search warrant affidavit, there are limited occasions, at least theoretically, where deviation from the “four corners rule” is authorized. This procedure, commonly referred as a Franks hearing, is permitted where testimony or other proof is proffered by a defendant that the police officer who sought the warrant deliberately provided false material evidence to support the warrant or held a reckless disregard for whether information in the affidavit was truthful and accurate. Franks, v. Delaware, 438 U.S. 154, 171-2, 98 S.Ct. 2674, 2684-5 (1978); Greenstreet v. State, 392 Md. 652, 669, 898 A.2d 961, 971 (2006).

In Franks the Supreme Court stated the rule and procedure to be followed when a defendant seeks a Franks hearing;

[W]here a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the warrant.

Franks, 438 U.S. at 155-56; accord Edwards v. State, 350 Md. 443, 449 (1998)

Striving to reach the point where a defendant meets the Franks test requires a herculean effort to prove that the affiant intentionally and knowingly included false information or recklessly included information without, in most instances, being permitted to call the affiant as a witness and given the opportunity to explore the manner in which the information contained within the affiant was obtained, why it was included in the manner in which it was, or why other information was purposely not included. This is particularly difficult as the intent and purpose of the affiant is a critical factor in proving the state of mind of the affiant. Many reported cases that have found incorrect information in an affidavit or material information omitted from the affidavit, have justified upholding the warrant on the basis that the officer only acted “negligently” and not “recklessly” or “intentionally” in preparing a misleading affidavit. See i.e. Holland v. State, 154 Md App. 351, 383 (2002); Braxton v. State, 123 Md. App. 599, 645-46 (1998); Emory v. State, 101 Md. App. 585, 632-33 (1994).

To prove intent and purpose in establishing that the affiant acted “intentionally” and/or “recklessly” when the affiant is shielded from inquiry as to his state of mind dooms nearly all efforts to cross the Franks’ threshold.

Franks also requires that:

“To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.”

Franks, 438 U.S. at 171

Johnson v. State – Looking at the Affidavit with a “Smile”

The Honorable Charles E. Moylan, Jr. has provided a road map for practitioners and judges as to the standard of review to be applied by a motions hearing judge considering a challenge to legal sufficiency of a search warrant authorized by another judge. In State v. Johnson, 208 Md. App. 573 (2012) the State appealed the granting of a motion to suppress on the basis that the search warrant was not supported by probable cause.

Beginning his analysis, Judge Moylan reviewed the relationship between the responsibilities of the suppression hearing judge and its determination of probable cause which, Judge Moylan described as “a tricky one.” In the warrantless search the reviewing judge is the ultimate fact finder in determining the existence or absence of probable cause. However, where a judicially issued warrant is being reviewed, the suppression judge enjoys “no such free willing latitude” and “sits in an appellant-like capacity with all of the attendant appellant constraints.” In such a capacity, the suppression hearing judge may well be called upon to uphold the warrant issuing judge for having had a substantial basis for the issuing of a warrant even if the suppression hearing judge himself would not have found probable cause from the same set of circumstances. Judge Moylan further notes that the preference for the police to resort to judicially issued warrants is “so hydraulically powerful that the courts by way of practical endorsement of that preference will uphold the warrant even should the warrant issuing judge have been technically wrong in the assessment of probable cause.” Recalling an example given in State vs. Amerman, 84 Md. App. 461, 463, 581 A.2d 19 (1990), Judge Moylan reminded that the same discipline could indeed constrain the suppression hearing judge even when reviewing his own earlier issuance of a warrant. In such a circumstance, the reviewing judge, to quote Judge Moylan, might be faced with the conclusion that

Although I would not, as a matter of fact, find probable cause from these circumstances today, I cannot say, as a matter of law, that I was legally in error when I did so yesterday. I, therefore, have no choice at this juncture and in this more confining capacity but to uphold my earlier warrant, although I am frank to admit that I would not reissue it.

208 Md. App. At 834, 56 A.3d at 579

In Johnson, Judge Moylan found that the reviewing judge applied the wrong test. The reviewing judge applied the standard of probable cause to determine whether or not the warrant should have issued when the proper standard of review for the reviewing judge was to determine whether there was a “substantial basis” for the issuing judge to issue the warrant. After a detailed review of the facts contained in the search warrant affidavit, the Court, through Judge Moylan, concluded that the warrant application provided a substantial basis to support the issuance of a search and seizure warrant. Whether the application established probable cause was not the issue “because on the issue of suppression it simply does not matter. Probable cause is not the test.” 208 Md. App. At 582; 56 A.3d at 836.

Beginning a detailed review of the law regarding the standard of review for the suppression hearing judge, Judge Moylan notes that after Illinois vs. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983), there is no doubt that reviewing courts, at the appellate level or at the suppression hearing level, have no business second guessing the probable cause determination of warrant issuing magistrates by way of de novo determinations of their own.

Characterizing what Judge Moylan refers to as “the preference for a warrant friendly attitude,” he reminds that the thrust of the Johnson opinion is to communicate the Supreme Court’s prime directive established over the course of 50 years, as well as Maryland’s case law implementing that prime directive, that a reviewing court is enjoined to approach the examination of a judicially issued warrant with a “warrant friendly attitude.” With characteristic Moylan language he notes that the cases reviewed in the Johnson opinion “reduce 50 years of rhetoric to a nutshell and what it says is that the reviewing judge should approach the warrant with a smile.” (emphasis added) 208 Md. App. At 598; 56 A.3d at 845.

Johnson notes that terms such as “substantial basis” and “probable cause” can be frustrating and slippery. A substantial basis is less weighty and logically probative than probable cause. Some warrant applications that will pass muster under the lesser test would not pass muster on the more demanding test. Where the State “needed a grade of C to sustain a warrantless search, it will almost certainly squeak by with a grade of D if it had gone to the trouble of getting a search warrant.”

Judge Moylan acknowledges that the Supreme Courts message in Gates makes is unmistakably clear that although rubber stamping a warrant might some times be a problem, holding a warrant to too high a standard can be a comparable problem and sometimes, at the hands of over demanding reviewers, even a greater problem. Rejecting the notion that “the seemingly latitudinal standard of review for a judicially issued warrant is not some “pro-state” or “anti-defendant” bias, it reflects rather a deliberate policy by the Supreme Court that the most effective way to protect the Fourth Amendment guarantees of citizens is to encourage police to askew reliance upon warrantless search and seizures and to defer to the impartial judgment of a neutral and detached magistrate. Continuing to quote Gates, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be imported to warrants.

Turning to the specifics of the Johnson case, Judge Moylan noted that the suppression hearing judge ruled that the application failed to establish probable cause because of its failure to show a nexus between the suspect’s suspected criminal activities and his home. Noting that the suppression hearing judge raised serious questions about whether sufficient evidence had been presented in the search warrant affidavit to establish probable cause to believe that there was a nexus between the suspect’s activities and the location to be served, again Judge Moylan tells us “the required “tilt” of the warrant reviewing court, however, is to seek out those inferences favorable to the warrant, not those adverse to it.” The opinion criticizes the suppression hearing court as basically being “not warrant friendly.”

After concluding that the suppression hearing court used the wrong standard of review, Judge Moylan then provides a mini-law school review on the law on the proof of nexus stating that under the Maryland case law that there is authority that could support both a pro-nexus and an anti-nexus conclusion when applied to the facts of the Johnson case. According to Judge Moylan, this creates an immediate problem for the defense, however, because it would, therefore, still be a circumstance where there is a substantial basis to support the warrant issuing judge’s decision whichever way he should rule. Because of the way the review of warrants is structured under the existing case law the warrant issuing judge is in a “win/win” situation. Conversely he notes that parties seeking to challenge the decision of the warrant issuing judge will be in a “lose/lose” situation as the deck is unquestionably stacked in favor of the warrant issuing judge.


Does there remain any effective way to both encourage police officers to secure a warrant before seeking to conduct a search, but also to ensure that the court enforces a citizen’s expectation that the decision to issue a search warrant is not simply a rubber-stamping of an application containing unreviewable information? The exclusionary rule is intended to sanction police misconduct. Franks and Johnson underscore the “warrant friendly” directive to suppression hearing judges to enforce high barriers to challenging the content and sufficiency of search warrant affidavits. This instruction to “smile” at affidavits that are objectively lacking in probable cause and that contain inaccurate or misleading information overlooks the need to also caution reviewing judges to have “raised eyebrows” and to legitimize judicial “frowning” at the contents of search warrant affidavits as the court exercises its responsibilities to protect the constitutional rights of our citizenry.

From Greenbelt, MD, Robert C. Bonsib Esq., serves clients in Washington DC, Baltimore, Annapolis, Greenbelt, Bethesda, Rockville, Bowie, Upper Marlboro, Ft Washington, Hyattsville, Silver Spring, La Plata, Prince Frederick, Ellicott City, Prince Georges County (PG County), Montgomery County, Howard County, Anne Arundel County (AA County), Calvert County, Charles County, and Frederick County, Maryland.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney