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Warrants – Good-Faith Exception – Violation of “Oath or Affirmation” Requirement

State v. Wilton Tye, 2001 WI 124
For Tye: Mark D. Richards, Christy M. Hall

Issue: Whether evidence seized under a search warrant, invalid on its face because unsupported by oath or affirmation, is covered by the good faith exception.


¶24. Fourth and finally, the State asks this court to allow admission of the seized evidence under a good-faith exception to the exclusionary rule. This court adopted a version of the good-faith exception to the exclusionary rule in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625. However, we do not extend the good-faith exception to a warrant issued on the basis of a statement that totally lacks an oath or affirmation, as in the present case. The exclusionary rule applies when no oath or affirmation supports a search warrant; “it is plainly evident that a magistrate or judge had no business issuing a warrant.”

A 3-justice concurrence reminds that Eason establishes “additional parameters” (i.e., to those required by the US Supreme Court), namely a showing that the warrant process included significant investigation and review by knowledgeable officer or prosecutor. ¶27 n.1. But in this case, the concurrence says, you need go no farther than US guidelines — a warrant unsupported by oath or affirmation is so facially deficient that reliance on it is unreasonable. ¶¶27-28. This appears to be only an elaboration on the majority’s analysis, and not a disagreement with it.)The court’s explication of the purpose of the oath / affirmation requirement, ¶19, has been termed “eloquent” by one court — albeit in the course of upholding a statement of probable cause submitted to a magistrate by fax, U.S. v. Bueno-Vargas, 9th Cir. No. 03-50381, 9/21/04. What does this do to the traditional concern that review is merely a rubber stamp process? Well, a magistrate’s finding of probable cause now may be regarded as simultaneously remote and a near-certainty.

Different but related problem of whether good-faith may be bolstered by information in possession of police but not presented to search warrant magistrate: see U.S. v. Laughton, 6th Cir No. 03-1202, 5/17/05 (“Whether an objectively reasonable officer would have recognized that an affidavit was so lacking in indicia of probable cause as to preclude good faith reliance on the warrant’s issuance can be measured only by what is in that affidavit.”).


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