Bearing False Witness: Perjured Affidavits and the Fourth Amendment

Abstract

The purpose of this Article is to articulate appropriate legal doctrine to govern the problem of false statements of fact by law enforcement officers in warrant affidavits. This Article addresses the issue in the context of actions brought pursuant to 42 U.S.C. § 1983 to redress such Fourth Amendment violations. This perspective promises to be interesting and unique for two reasons. First, the fact that the guilty are ordinarily the direct beneficiaries of the Fourth Amendment has long been a matter of grave concern. In contrast, rarely, if ever, will anyone except an innocent victim of a search based on a perjured warrant affidavit be able to maintain a successful action asserting this particular Fourth Amendment violation. Second, a police officer who files a false affidavit in support of a warrant application, unlike any other defendant in a § 1983 case, is not entitled to the protection of any of the immunity doctrines which protect police officers in most cases from legal liability.