State v. Jeffrey L. Moeser, 2019AP2184-CR, petition for review of an unpublished decision granted 11/18/21 ; case activity (including briefs)
Issue presented (from the petition):
Whether the ‘Oath’ requirement under the Fourth Amendment of the US Constitution and Article 1, Section 11 of the Wisconsin Constitution require a police officer to swear an oath to the truthfulness of an affidavit used to obtain a search warrant to conduct an evidentiary blood draw in a criminal OWI matter?
As we noted in our post on the court of appeals’ decision, Moeser was arrested for OWI and the officer got a warrant to draw his blood. But, though he signed the affidavit and had it notarized before presenting it to the court, the officer never orally swore or affirmed its truth to anyone. Moeser argues this violated the “oath or affirmation” clauses in both the Fourth Amendment and the Wisconsin Constitution as well as the requirements of Wis. Stat. § 968.12(2).
The court of appeals said that the act of completing, signing and notarizing the affidavit was good enough. It cited Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995); Moeser argues Kellner doesn’t govern because it concerns a different body of law (the statutory procedures for suing a state employee). We’ll see what SCOW thinks.
I’m watching this case closely. This type of application happens all the time without an oath being administered by either the Court or a notary. If you have a warrant affidavit that was notarized but not testified to, oftentimes investigators will acknowledge that they simply told a notary that the affidavit was accurate without ever swearing an oath to its truth. State v. Tye, 2001 WI 124, 238 Wis. 2d 530, holds that warrant applications must be sworn to, and that failure to do so is fatal to the application. The State’s position that an officer’s intent to tell the truth without ever submitting to an oath flies in the face of the plain language of the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution.