A cop’s lie can outwit the best of judges. It’s just how warrants work

“You don’t have any way of really knowing whether an officer or detective is making stuff up,” a retired judge conceded.

It seems there were only two truths in the arrest warrant application a Connecticut cop filed, according to an investigative report. A gray Acura exists and a license plate with the letters and numbers the officer wrote in his report is assigned to that car.

But the “traffic stop” the cop conducted on a quiet two-lane street in front of a carwash? The data from his police cruiser shows it never happened. At 9:14 p.m., the exact time of the alleged traffic stop for a noisy muffler, Officer Michael Fallon was actually on I-91 just minutes after driving 115 mph on the interstate, a report concluded. And the “clear view of the operator’s face” in the Acura’s driver-side mirror? That confirmed visual identification Fallon said he had when he applied for the warrant to arrest the Acura’s driver for allegedly fleeing the scene? Investigators determined that never happened either.

Yet, on the strength of Fallon’s sworn word, a Superior Court judge in Hartford, Connecticut, gave law enforcement permission to arrest a man.

It’s a scene that plays out thousands of times a day across the nation. Law enforcement officers swear to a judge that they witnessed an incident, heard something, or gathered evidence to request permission to search a home, rifle through a car, kick in a door, tap a phone, or arrest someone. And a judge believes them. Judges serve as the bastion between people and police in the warrant process, but that defense is weaker than water against a cop’s lies.

“A judge’s function is not to assess the credibility of what is in the warrant. You really have no way of assessing that,” said Benjamin Lerner, a retired judge from Philadelphia. “The question is, ‘Do I have enough information and evidence here?’ You have no way of making a determination of truthfulness.”

Two separate Supreme Court decisions recognized the inherent desire an officer might have to advance or close a case and the possibility of police officers lying to achieve their objectives. Consequently, in 1958 the highest court in the nation stated that in reviewing affidavits for warrants, a judge must not accept “without question” an officer’s conclusion that a crime occurred.

Former Judge Clarence Seeliger, whose 40-year career included time as a Superior Court judge in DeKalb County, Georgia, said he was particularly diligent when officers brought him search warrants to review. He took the time to scrutinize and question the information the police brought him. “I would press officers, and judges should take the time to do that,” Seeliger said.

The diligence Seeliger practiced is what the Supreme Court reiterated in a 1963 opinion that judges are the last line of defense between police officers’ objectives and Americans’ rights. In the Wong Sun v. United States case, the court wrote that “the arrest warrant procedure serves to [ensure] that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause.”

Like Seeliger, Lerner said judges should question officers applying for warrants, and he said he did make inquiries. But even when asking questions, Lerner said, “You don’t have any way of really knowing whether an officer or detective is making stuff up.”

That uncertainty is compounded by how the world and courts have changed. Court caseloads have grown exponentially during the last 60 years. Also, according to legal experts, there’s not a lot of time for, or interest in, assessing the weight and veracity of what a police officer swears is true, particularly for low-level drug cases.

Lerner spent more than 30 years in the Philadelphia court system. He served as a trial judge in the Philadelphia Court of Common Pleas and later ran the Homicide Trial Division for 23 years. Many warrant applications passed his desk throughout his career.

“In everyday drug cases, you’re talking about a lot more warrants being presented to first-rank or lowest-rank judges,” Lerner said. “In those cases, they have boilerplate language. You present it to a judge who says, ‘I’ve seen 1,000 of these. I don’t have to read it carefully.’”

The number of warrant applications and judges available to evaluate them varies from jurisdiction to jurisdiction. In Alameda County, California, where Oakland sits, there are 73 judges to provide 24/7 coverage to hear warrant applications. In 2022, the judges reviewed an average of almost 600 search warrants each month in addition to handling all other criminal warrants.

Essex County, New Jersey, which includes the city of Newark, had approximately 674 warrant applications a month in 2022. Each day, one of the 17 available judges reviews the applications, along with their other courthouse duties.

In Fulton County, Georgia, home to Atlanta, the Magistrate Court reviewed 28,794 arrest warrant applications between Jan. 1, 2023, and Sept. 26, 2023. Of those, 28,088 warrants were issued. The court has 27 judges who work around the clock to review the warrant applications. That’s more than 3,000 arrest warrants a month for one of 27 judges, where one of the judges has that duty at a time.

In the case of Breonna Taylor’s 2020 death in Kentucky, the judge who greenlit the no-knock warrant that contained lies and led to her demise reportedly did so while approving four other warrants in a span of 12 minutes. That means he spent less than 3 minutes on each warrant if he gave all of them equal consideration.

“The myth that people have is that the warrant requirement itself is what controls against misconduct,” said Joe Margulies, a former defense attorney and professor of law at Cornell University. “The misconduct is possible because structurally the assumption is that the police are telling the truth.”

This goes back decades.

Beginning around 2003, several Tulsa officers — along with an agent in the U.S. Bureau of Alcohol Tobacco and Firearms (ATF) — spent years falsifying search warrant applications.

One of the cases from 2004 involves Officer Jeff Henderson, who stated on his application for a warrant that one of his confidential informants watched a Black man — Bobby Haley Sr. — sell drugs at a salvage yard. Based on the warrant, the police raided the salvage yard and found cocaine. A federal jury later sentenced Haley to 22 years in prison due in part to previous arrests and charges.

Five years later, the informant admitted that she never saw Haley sell drugs at the salvage yard. In its federal indictment, the FBI alleged Henderson and another cop coached the informant on how to lie during a hearing for the case. A court vacated Haley’s conviction, but he’d already spent nearly five years in prison.

In Ohio, officers Torris Moore, Eric Malone and Antonio Jones of the East Cleveland Police Department falsified multiple search warrant applications for at least three years, and they stole money and drugs from suspected dealers.

In one incident in 2012, the three officers put false information on a warrant affidavit and presented it to a judge who approved it. They searched the home and took $20,000 from the residence. Later, the three officers divided a portion of the money up for themselves and reported that they found only $11,173.

Their misconduct led to at least 32 vacated convictions. All three officers went to prison. “When detectives target and rob a drug dealer and then create false evidence to cover up their own crimes, those officers are Benedict Arnolds,” former county prosecutor Timothy J. McGinty said at the time.

Historically, judges have accepted the structure of the criminal justice system in which police swear to tell the truth, experts said. “As a rule, judges are deferential. There’s a reason for that,” Margulies said. “Institutionally, they’re not in a position to know what the truth is.” And even if a judge did take the time to ask probing questions, the jurists usually just believe the response from the officers, Margulies said.

Officers know that judges inherently will trust them. And they also know that it could be months, years, or never before anyone discovers lies within a warrant application. That discovery normally happens during a rare appeal process, and too often after someone’s been locked up for years – or killed.

“When you present the [warrant application], only one side is represented. Later, after a person is charged and it becomes the subject of adversarial proceedings, that’s when you can look at the warrant,” Margulies said. “That’s only after the fact.”

Between the deference, boilerplate language and the volume of warrants that go through the system, judges have to take the word of the officers. “Judges aren’t equipped or expected to search beyond the facts that are presented to them,” said Rosemary Nidiry, a senior counsel at the Brennan Center for Justice and a former federal prosecutor.

Additionally, officers must swear that they’re telling the truth when submitting warrant affidavits. Lying puts them at risk of a perjury charge.

Fallon, the Hartford, Connecticut, officer accused of fabricating the tale of a traffic stop and a fleeing suspect to get an arrest warrant, comes from a law enforcement family. His late father was chief of the Connecticut State Capitol Police. In his state, perjury is a Class D felony. Anyone convicted of that crime faces fines as high as $5,000 and one to five years in prison.

The death of Breonna Taylor is another recent and stark example. Three former Louisville officers — Kyle Meany, Joshua Jaynes and Kelly Goodlett — are accused of lying to get the search warrant for Taylor’s home. Jaynes and Meany face federal civil rights violations and could spend the rest of their lives in prison.

The onus truly falls on the police, experts insist. They need to hold themselves accountable. Supervisors need to scrutinize the warrants and information before it even gets into a judge’s hands. “There’s no use in beating up on a judge. The people to go after are the police,” Margulies said. “The judge is just evaluating the information.”

The International Association of Chiefs of Police (ICAP) did not respond to multiple requests for comment about officer integrity and the role of police leadership when addressing warrant misconduct.

Former judges Lerner and Seeliger — who worked for decades in major cities and handled important cases — said they had never encountered a situation where a warrant they approved was later found to contain lies. To them, this problem occurs but it’s not the rule, it’s the exception.

However, as theGrio previously reported a review of an exoneration database as part of a collaborative project with Boston University’s Justice Media Computational Journalism co-Lab showed the rarity of lies in warrants isn’t that rare. At least 51 exoneration cases out of 384 involved some kind of warrant misconduct. Twenty-four of those cases involve falsified warrants.

“I think as the years have gone by, a lot of judges have become more cautious and more critical in reviewing warrant applications,” Lerner explained. He cites the recent pushes for widespread criminal justice reform as a reason.

“You can find a way to be more transparent without alerting the suspect and protecting the criminal investigation,” the Brennan Center’s Nidiry said. She suggests actions like recording the conversation between the police and a judge who’s reviewing a warrant application.

The discovery in Fallon’s case played out the way Marguiles said it usually does – after the fact. After a judge already had given the green light to arrest a man. In January 2023, during an annual audit of traffic reports, a Hartford sergeant discovered numerous discrepancies in what Fallon said he did and what records indicated happened, according to a police department report.

A subsequent probe by internal affairs involved reviewing Fallon’s body cam footage, data from his patrol car’s location and paperwork he filed. Those investigators determined a number of fake incidents including at least 30 traffic stops that they concluded never happened, and the report states Fallon admitted to falsifying weekly reports to avoid disappointing his supervisors. One of the stops involved the aforementioned arrest warrant from March 2022, 10 months earlier. Police notified the court about the lack of evidence to support the warrant that was still active. The court vacated the order that would have allowed the arrest of the Acura’s owner.

Fallon’s lawyer told local media that his client is working to clear his name and issued the following statement:

“Officer Fallon is a decorated police officer for bravery in the line of duty while serving the public with the Hartford Police Department. He’s presumed to be innocent of all charges in this matter. I respectfully request that everyone keep an open mind until all of the evidence is fairly examined in his case.”

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