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Challenge to telephonic search warrant procedure fails

State v. Donald A. Whitaker, 2022AP204-CR, District 2, 7/27/22 (one-judge decision; ineligible for publication); case activity (including briefs)

A telephonic warrant may be valid even if the court did not arrange for an electronic or written recording of the officer’s telephone call to be made.

The procedures for obtaining a telephonic search warrant are set forth in § 968.12(2) and (3). Under subsection (2), “[a] search warrant may be based upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter or under sub. (3)(d), showing probable cause therefor.” (Emphasis added.) Subsection (3)(d) allows a judge to take sworn testimony over the phone to support the issuance of a warrant, and in that event “[t]he judge or requesting person shall arrange for all sworn testimony to be recorded either by a court reporter or by means of a voice recording device.”

In Whitaker’s case, the officer wrote up a warrant and affidavit for a blood draw and emailed it to the duty judge. The officer then called the judge to tell him he’d submitted a request for a search warrant, which the judge then reviewed. The judge then had the officer swear to the truth and accuracy of the warrant as authorized under § 968.12(2) and directed the officer to sign it and write the judge’s name on the form. (¶¶3-4).

Whitaker complains the failure to record the conversation between the judge and officer violated § 968.12, but the court says that’s not so:

¶11     …[T]he process followed in this case complied with Wis. Stat. § 968.12(2)[,] which provides that the warrant may be based on a sworn affidavit showing probable cause. Recording the [officer’s] sworn testimony under § 968.12(3)(d) is an alternative means of preserving the evidence purporting to establish probable cause. It is not a requirement any time a telephone is used to obtain a warrant. Recording sworn testimony by a phonographic reporter is another alternative. These three means of documenting probable cause all serve to preserve the policies of judicial integrity and the right to judicial review. [State v.] Raflik, [2001 WI 129,] 248 Wis. 2d 593, ¶21[, 636 N.W.2d 690]. The “essential thing is that proof be reduced to permanent form and made a part of the record, which may be transmitted to the reviewing court.” Id., ¶28…. Here, the warrant prepared by [the officer] and signed with the judge’s authorization met that requirement.

Since the sworn affidavit provided probable cause and Whitaker identifies no other defect in the warrant or its authorization, the warrant was valid.

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