A warrant gives the police extraordinary power. The power to arrest someone and take them to jail. The power to raid a home. The power to seize possessions. The Fourth Amendment sets boundaries on warrants including that they be “supported by oath or affirmation,” meaning that they be based on firsthand testimony taken under oath. But court decisions have made that provision meaningless. No court today requires compliance with the Oath or Affirmation Clause. A new Institute for Justice case asks courts to once again plainly interpret the Constitution.
Michael Mendenhall ended up in a Denver jail charged with a felony after the police used secondhand information to get a warrant. The testimony of a dodgy witness was passed like a game of “telephone” from a police officer, to a detective, and then to a judge. Days after his arrest, the charges against Michael were dropped. However, the police continue to hold onto the property they seized with the warrant.
For much of United States history, a witness would have been required to testify before a judge and swear an oath to the truthfulness of what he said before a warrant was issued, as law professor Laurent Sacharoff has recently shown. But in 1960, the Supreme Court, in a short, poorly reasoned opinion read that section out of the Fourth Amendment’s text.
Today, officers routinely use secondhand information (in legal terms, hearsay) to acquire warrants. Lowered standards for warrants can lead to raids on the wrong home, like the one suffered by Anjanette Young in Chicago. They can let law enforcement punish their political enemies, facilitating the arrest of three grandmothers and a journalist in Southern Alabama. They can even let police manufacture confidential informants, like the ones made up by Houston detective Gerald Goines.
Michael, with help from the Institute for Justice, is suing to overturn the bad legal precedent that let law enforcement use secondhand information to get warrants. Once again, requiring an “oath or affirmation” would restore the protections the Founders intended to grant under Fourth Amendment. His case is currently on appeal in the Tenth Circuit Court of Appeals.
Case Team
Clients
Case Documents
Article by Professor Laurent Sacharoff: The Broken Fourth Amendment Oath
10th Circuit Brief
National Police Accountability Project Amicus
Law Professor Amicus
Wrong House Raid Victim Amicus
Civil Rights Lawyers Amicus
Media Resources
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Michael Mendenhall’s Arrest
Michael Mendenhall lives in Denver and operates a successful staffing agency headquartered in a downtown townhouse. While working late one evening in 2023, Michael and his friend heard screams coming from the front stoop. Michael grabbed a commemorative baseball bat and they opened the door.
Outside was a man sitting on the stoop, yelling at some women who were scurrying away. Michael asked the man to go away. The man argued with Michael, inexplicably threatening to call the police. After less than a minute of disagreement, the man backed away and Michael shut the door. A short while later, police knocked on the door and arrested Michael, without even asking for his side of the story.
While Michael was being held in a squad car, an officer called a police detective and relayed the allegations. That detective in turn used this secondhand account to apply for a warrant to enter the townhouse and search for the baseball bat. The detective was never present at the scene but his affirmation was enough for the judge to grant the warrant.
After police got the warrant, they entered the home and seized the bat. Michael was taken to jail and charged with felony menacing. Michael bailed out the next morning. Given the flimsy testimony of Michael’s accuser, charges were dropped less than a week later. Michael still has not had the bat returned to him, which is from an All-Star Game and is signed by players.
The Supreme Court Opens the Door to Warrants Based on Hearsay
Recent scholarship by law professor Laurent Sacharoff demonstrates that, for much of U.S. history, warrants based on hearsay were invalid. American courts—from the colonial-era through Prohibition—almost uniformly interpreted the Fourth Amendment’s oath requirement as a requirement of sworn personal knowledge. This required that any statement of fact supporting probable cause be made under oath by a witness stating facts within his personal knowledge. But in 1960, the Supreme Court held in Jones v. United States that police officers applying for a warrant could use the hearsay statements of informants to support probable cause. Jones was based on naked policy considerations, and did not engage with the text, history, and tradition of the Fourth Amendment.
Michael’s Lawsuit to Revive the Fourth Amendment
The Jones decision ignored the text of the Fourth Amendment, the Court’s own precedents, and almost two centuries of American legal tradition, and has produced disastrous results. When the protection of the oath requirement is removed from the warrant process, the likelihood of erroneous warrants increases significantly.
Michael, working with the Civil Rights Clinic at the University of Denver, filed a lawsuit against the city and county of Denver over the violation of his constitutional rights. According to the suit, the Denver Police Department maintains a policy and practice of using hearsay to acquire warrants. The U.S. District Court for Colorado dismissed the suit and IJ is appealing to the U.S. 10th Circuit Court of Appeals.
The Fourth Amendment was enacted in direct reaction to the general warrants British authorities used to search and seize property in the run-up to the American Revolution. Those general warrants did not require probable cause, particularity, or an individual with personal knowledge to swear an oath. The Fourth Amendment, as a result, contains all three.
The underlying reason for the firsthand account requirement is to provide the magistrate with an opportunity to carefully examine and assess a witness to ensure the truth of the allegations and evaluate sufficiency of the evidence before signing off on the warrant. Today, magistrates often approve warrants online within minutes of receiving a warrant application without questioning police or witnesses. As a result, warrants became blank checks for officers to act unreasonably with impunity.
The Litigation Team
Michael is represented by IJ Senior Attorneys Anya Bidwell, Patrick Jaicomo, and Paul Sherman.
About the Institute for Justice
The Institute for Justice is a national nonprofit law firm that litigates to protect Americans’ Fourth Amendment rights to be free from unreasonable searches and to hold government officials accountable when they violate the Constitution. IJ is representing small business owners challenging federal cash surveillance in Texas and California. IJ is challenging a century old legal doctrine that allows warrantless searches of private land, most recently in Alabama. And last year, IJ secured a Supreme Court victory for a Castle Hills, Texas city councilwoman arrested by her political opponents.
