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SCOW: Oath or affirmation of officer on warrant is a matter of substance, not form

State v. Jeffrey L. Moeser, 2022 WI 76, 11/23/22, affirming an unpublished court of appeals decision; case activity (including briefs)

The Fourth Amendment requires that warrants shall not be issued except upon probable cause “supported by Oath or affirmation.” The officer who applied for a warrant to draw Moeser’s blood after an OWI arrest made no oral oath or affirmation before signing the affidavit in support of the warrant or before the judicial officer who approved the warrant. (¶8). But that doesn’t make the warrant invalid, because oath or affirmation is a matter of substance, not form, and it’s clear that the officer manifested an intent to be bound by his statement under circumstances that emphasize the need to tell the truth.

The majority offers a brief review of a few hundred years of legal history addressing the meaning of “oath or affirmation” which, the majority says, reveals that no “specific language or procedure is necessary” to meet the requirement (¶¶17-23); a traverse through the case law that it concludes establishes that oath and affirmation is a matter of “substance over form” (¶¶24-36); and a review of the (lack of) specific statutory requirements for swearing an oath. (¶¶37-41). The upshot is that the oath or affirmation requirement is satisfied if the facts and circumstances demonstrate that the officer executed the warrant affidavit “in a form calculated to awaken [the officer’s] conscience and impress [the officer’s] duty to [tell the truth].” (¶48, citing § 906.03(1) and State v. Tye, 2001 WI App 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473.

The facts and circumstances here show this test was met:

¶44     ….Sergeant Brown wrote his name below the title, “AFFIDAVIT,” and next to the words, “being first duly sworn on oath, deposes and says,” both of which impressed that he was signing a sworn statement. Just two paragraphs down, the affidavit contained a statement expressly affirming that “the contents of this affidavit are true.” Sergeant Brown completed the affidavit by verifying its contents with his signature just above the jurat, which again reminded him that the document was “sworn.” Finally, in Sergeant Brown’s presence, Lieutenant Wills further impressed the seriousness of the occasion by notarizing the affidavit…. The words in the affidavit impressed Sergeant Brown with the duty to tell the truth…. This placed Sergeant Brown under oath or affirmation and subjected him to the possibility of criminal penalty for false swearing if he knowingly lied….

A concurrence (Hagedorn, joined by Karofsky) admits, citing the dissent, that there are “strong counterarguments” calling the sufficiency of the oath into question here, particularly because the affidavit could be read to suggest a seaport oath had taken when place when that’s not the case. While this “sloppiness” isn’t “fatal,” police should ensure the procedures used to obtain warrants are “clear and consistent.” (¶51).

The dissent (A.W. Bradley and Dallet) rejects the majority’s approach as “eschew[ing] the constitutional imperative and instead determine[ing] that ‘the constitutional guarantee is satisfied’ [based] upon an examine of [the officer’s] subjective intent.” (¶60).

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