The Fourth Amendment:

What that means:You have the right to privacy at your own home. Police cannot search your property without probable cause. They'll need a warrant or your consent to come inside. To get that warrant, officers must convince a judge that they will probably find evidence of a crime on or inside your property. To do that, they'll sign a probable cause affidavit swearing that they're telling the truth. The judge will specifically look at why an officer believes the evidence they need is on the property. An officer's feelings about what they'll find in a search isn't good enough.

In Bay County nearly 20 warrants have been signed in the first two months of the year. That's 20 sworn statements from Officers. What if one of those officers isn't being honest? Or even just stretching the truth in good faith to catch a bad guy? The answer to that can be as individual as the circumstances.

Judge John O'Brien in Bay County has signed dozens of warrants but says catching a deceiving law enforcement officer is difficult for judges. "When it's initially presented to a judge, how could you possibly know? You read the affidavit. The guy is swearing this is the truth. How could you possibly know at that point in time whether the police officer is telling the truth or not?"

Judge O'Brien says he's never run across an incident where an officer lied to him to obtain a warrant but if it did, he wouldn't be too pleased. O'Brien admits he isn't sure what the law would say he should do if law enforcement broke the law in such a way. He would start with throwing out the warrant but what happens after that would take some time to decide. "I just don't think a judge should jump up and do something before he has considered it all the way around."

Legal Counsel for the American Civil Liberties Union, Larry Spalding, says cases like that of Joe Francis in 2003 are typically handled internally by the law enforcement agency itself. In the Francis case, Investigator Richard Bagwell was specifically called out by Judge Dedee Costello has having lied on his search warrant application. Judge Costello dismissed evidence seized during searches of Francis's condos, vehicles, and planes and later dismissed most of the charges against Francis and his business associates.

Though Bagwell was named by the Judge has clearly having violated the rights of Francis, his personnel file makes no references to the botched case or violation of the Constitution by the officer. Bagwell was reassigned following the Francis case from drug investigations to the Warrants Division but there is no written reprimand in his file nor a notice of suspension, docked pay, or administrative leave.

Spalding says the way the Judge and the Sheriff handled Bagwell may not necessarily be wrong. "What happens a lot of times is they look at the totality of the situation and they say the police officer was acting really stupid but he was acting in good faith. On the other hand if you catch a law enforcement officer who is genuinely commiting a crime with a malevolent intent, they ought to be prosecuted just like anyone else."

Spalding admits that as a practical matter though, an officer is not likely to be prosecuted for lying to obtain a warrant because it would disrupt the relationship between law enforcement, prosecutors, and the Judicial branch. Spalding suggests that a Judge perhaps use scare tactics every once in awhile when necessary to make sure law enforcement is staying on their toes.

"Coming full circle... why is the Fourth Amendment so important? It is designed to protect the average citizen from an over zealous law enforcement agency."

Part I

Part II