Amended July 5, 2017 State of Iowa v. Maurice D. Angel and Kemia B. McDowell ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–1830
Filed April 21, 2017
Amended July 5, 2017
STATE OF IOWA,
Appellant,
vs.
MAURICE D. ANGEL and KEMIA B. McDOWELL,
Appellees.
Appeal from the Iowa District Court for Scott County, Marlita A.
Greve, Judge.
The State appeals the district court’s grant of defendants’ motions
to suppress. REVERSED AND REMANDED FOR FURTHER
PROCEEDINGS.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, Michael Walton, County Attorney, and Kelly G.
Cunningham, Assistant County Attorney, for appellant.
Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellee
Maurice D. Angel.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellee Kemia B. McDowell.
2
MANSFIELD, Justice.
A detective prepared a search warrant application, brought the
application before a judicial officer, and without signing the application
orally swore that it was true and correct in the presence of the judicial
officer. The judicial officer approved and signed the warrant. Four days
later, the warrant was executed.
The question now presented is whether a warrant issued under
these circumstances violates Iowa Code section 808.3. We conclude that
it does not, because section 808.3 permits the warrant applicant to
swear to the truth of the warrant application in the presence of the
judicial officer even if, inadvertently, the applicant fails to sign it.
For these reasons, we reverse the granting of the defendants’
motions to suppress and remand for further proceedings.
I. Background Facts and Proceedings.
In March 2015, Deputy Dan Furlong and fellow agents used a
confidential source to make two crack cocaine purchases from Maurice
Angel. This confidential informant had been known to Furlong and his
fellow agents for three years, had provided reliable information in the
past, and had not previously given false information. During those buys,
which were visually recorded, Furlong and the other agents saw Angel
driving a silver 2002 Chevrolet Tahoe. After the second buy, Angel
returned to a residence at 1916 E. 38th St. in Davenport. A utilities
check indicated that service was being provided to the residence under
the name Kemia McDowell.
The following month, Deputy Furlong obtained a warrant for a GPS
tracker that was attached to the Tahoe. On April 22, the tracker was
placed on the Tahoe, and for the next two weeks, it confirmed that the
vehicle was parked in front of 1916 E. 38th St. every night except one.
3
On the evening of May 7, Angel was observed by law enforcement
parking the Tahoe and then walking directly into 1916 E. 38th St.
Approximately fifteen minutes later, Angel was seen leaving the residence
and driving to a McDonalds. Angel’s Tahoe pulled into the McDonalds
parking lot next to another vehicle. An individual got out of the other
vehicle, and the other individual opened the front door of Angel’s Tahoe
and received an item. The entire encounter took less than two minutes.
This other individual was a person on probation for possession of a
controlled substance with intent to deliver and failure to affix a drug
stamp.
For the next four hours, Angel’s Tahoe continued to make a series
of brief stops in various parking lots. Furlong suspected some of the
stops were for the purpose of drug sales while others may have been
efforts by Angel to determine if he was being followed. At about 1:15
a.m. on May 8, Angel’s Tahoe returned to 1916 E. 38th St.
Later on May 8, Furlong prepared a warrant application to search
the residence at 1916 E. 38th St. At the subsequent suppression
hearing, Furlong described the process by which he obtained the actual
search warrant:
Q. Detective Furlong, I’m going to hand you what’s
been marked Defendant’s Exhibit A. I’d like for you to take
an opportunity to look at that and tell me if you recognize
Defendant’s Exhibit A. A. Yes, I do.
Q. How do you recognize Defendant’s Exhibit A?
A. This is the search warrant that I typed for the residence
of 1916 East 38th Street in Davenport.
....
Q. Detective Furlong, when you prepared this set of
documents, what did you do initially before presenting it to a
judge? A. Once I finish preparing it, I brought it to you in
the County Attorney’s Office to review.
Q. And was the document reviewed? A. Yes, it was.
4
Q. Does the State’s signature appear on that
document reflecting that review? A. Yes, it does, on page 4.
Q. Okay. And is that for the application for search
warrant? A. Yes, it is.
Q. Once the State had reviewed that document, what
was the next step you took? A. The next step that I took
was to find a judge to review the search warrant.
Q. Okay. Where did you go to do that? A. I walked to
the third floor of the Scott County courthouse.
Q. Were you able to locate a judge? A. Yes, I did.
Q. Who? A. Judge Henry Latham.
Q. Where did you locate Judge Latham at? A. I
walked up the west stairwell after leaving the County
Attorney’s Office and I don’t remember what door that is
called. It’s directly to the west behind us. And when I
walked into the back hallway of the courtroom for district
court, I ran into Judge Latham and I asked him if he had
time to look at the search warrant.
Q. Was Judge Latham willing to look at this
application for search warrant and the attached documents?
A. Yes.
Q. Now, where did Judge Latham review these
documents at? A. It was directly outside of the other judges’
chambers in the hallway.
Q. Okay. Outside of Courtroom 4 here? A. Outside
the courtroom.
Q. When you presented the documents to Judge
Latham, what happened initially? A. The search warrant --
the same as every other search warrant. He asked me to
raise my right hand and asked me to swear and affirm that
everything in here was true and correct to the best of my
knowledge.
Q. And then did you take that oath? A. Yes, I did.
Q. And did you swear and affirm before Judge Latham
that the information contained within the application for
search warrant was true and correct? A. Yes, I did.
Q. Now, having taken the oath, what did you observe
Judge Latham do next? A. Judge Latham reviewed the
search warrant and he signed the search warrant in all three
places.
THE COURT: You’re going to have to speak up. You’re
dropping off at the end. Judge Latham reviewed it and
what? A. Judge Latham reviewed the search warrant and
he signed the search warrant in three separate places on the
application on the endorsement and on the search warrant.
5
Q. Now, in looking at the signature page for the
application to search warrant, is there a signature on there?
A. Is my signature on there?
Q. Right. A. No, it’s not.
Q. Okay. And then can you explain how that came
about? A. I -- after he swore me in, I handed him the
documents or I handed him the documents first thing, he
swore me in, and he reviewed everything and signed it in
three places and returned it to me.
Q. Was it an oversight then that your signature did
not get on the document? A. Yes, it was.
Q. Now, does the application for search warrant on
the signature page indicate a date that it was presented to
Judge Latham? A. May 8, 2015.
Q. And in going to the search warrant page, does it set
forth a location where Judge Latham can date and sign when
he would have approved the search warrant? A. Yes, it
does.
Q. And what does it set forth? A. It was on May 8,
2015 at 3:22 p.m.
Q. Now, to be clear, were you given the oath or
affirmation? A. Yes, I was.
Furlong executed the warrant the morning of May 12. At that
time, McDowell was present in the residence and smoking marijuana in
the presence of two young children. During the search, an unlabeled pill
bottle containing 11.6 grams of crack cocaine, 3.5 grams of powder
cocaine, 9 grams of marijuana, a digital scale, a marijuana grinder, and
$703.00 in cash were collected.
Angel and McDowell were charged with possession with intent to
deliver crack cocaine, possession with intent to deliver powder cocaine,
possession with intent to deliver marijuana, conspiracy to commit
possession with intent to deliver a controlled substance, sponsoring a
gathering where controlled substances are unlawfully used, and a drug
tax stamp violation. See Iowa Code § 124.401(1)(b)(3), (1)(c)(2), (1)(d)
(2015); id. § 124.407; id. § 706.1(1); id. § 453B.12(2). McDowell was also
charged with child endangerment. Id. § 726.6(1)(a).
 6
Angel and McDowell moved to suppress the results of the search
based on Deputy Furlong’s failure to sign the warrant application and on
lack of probable cause. A hearing on the motions to suppress took place
on October 7. Following the hearing, the district court issued a ruling
granting the motions to suppress. The court concluded that Iowa law
required the warrant application to be signed in the presence of the
issuing judicial officer. The court reasoned, “Detective Furlong’s failure
to sign the search warrant application means it was not ‘supported by
the person’s oath or affirmation’ as required by Iowa Code section 808.3.”
Citing State v. Easter, 241 N.W.2d 885 (Iowa 1976), the district court also
concluded that it could not receive testimony given at a hearing on a
motion to suppress a search warrant. It thus declined to consider
Deputy Furlong’s testimony.
Lastly, the district court took note of a further matter that had
been discussed at the suppression hearing. Although the judge had
signed (1) the warrant, (2) the jurat beneath the space for Deputy
Furlong’s signature on the application, and (3) the endorsement of the
warrant application on May 8, he had failed to do any striking out or
circling on the endorsement form where it said, “The information (is/is
not) found to justify probable cause,” and “I therefore (do/do not) issue
probable cause.” In the district court’s view, this fact also supported
granting the defendants’ motions to suppress. 1
We granted the State’s application for discretionary review and
retained the appeal.
1The district court’s suppression ruling did not reach the defendants’ argument
that the warrant application did not provide probable cause to justify the search of the
residence.
7
II. Standard of Review.
We review challenges to warrant applications based on statutory
requirements for corrections of errors at law. State v. Davis, 679 N.W.2d
651, 656 (Iowa 2004); State v. Day, 528 N.W.2d 100, 102 (Iowa 1995).
III. Analysis.
The question we have to answer is one of statutory interpretation:
Did the warrant comply with Iowa Code section 808.3? That section
provides,
A person may make application for the issuance of a
search warrant by submitting before a magistrate a written
application, supported by the person’s oath or affirmation,
which includes facts, information, and circumstances
tending to establish sufficient grounds for granting the
application, and probable cause for believing that the
grounds exist. The application shall describe the person,
place, or thing to be searched and the property to be seized
with sufficient specificity to enable an independent
reasonable person with reasonable effort to ascertain and
identify the person, place, or thing. If the magistrate issues
the search warrant, the magistrate shall endorse on the
application the name and address of all persons upon whose
sworn testimony the magistrate relied to issue the warrant
together with the abstract of each witness’ testimony, or the
witness’ affidavit. However, if the grounds for issuance are
supplied by an informant, the magistrate shall identify only
the peace officer to whom the information was given. The
application or sworn testimony supplied in support of the
application must establish the credibility of the informant or
the credibility of the information given by the informant. The
magistrate may in the magistrate’s discretion require that a
witness upon whom the applicant relies for information
appear personally and be examined concerning the
information.
Iowa Code § 808.3.
We believe the warrant complied with the statute. The application
was “supported by the person’s [i.e., Deputy Furlong’s] oath or
affirmation.” Id. The statute does not state that the oath or affirmation
itself must be in writing. To the contrary, the statute requires a “written
8
application,” while separately requiring that the written application be
“supported by the person’s oath or affirmation.” Id. Both prerequisites
were met here. The adjective “written” modifies “application,” not “oath
or affirmation.”
Iowa Code section 808.3 contemplates that the magistrate may rely
on “sworn testimony.” Id. It is of course true that the magistrate must
make an abstract of any oral testimony that he or she receives. In State
v. Liesche, we recognized,
[I]t was the intent of the legislature . . . to require the
sufficiency of probable cause for issuance of a search
warrant to be tested entirely by the recitals in affidavits and
the magistrate’s abstracts of oral testimony endorsed on the
application. No other evidence bearing on this issue should
be received in a suppression hearing. All essential facts
bearing on the existence of probable cause must either be
included in an affidavit or affidavits presented to the issuing
officer or in the issuing officer’s abstract or abstracts of
sworn oral testimony. The search warrant must stand or fall
on the facts shown in that manner.
228 N.W.2d 44, 48 (Iowa 1975).
But Liesche stands only for what it says, namely, that the
“essential facts bearing on the existence of probable cause” must appear
either in the warrant application or in the abstract of testimony. Id.
Nothing in Liesche says that the fact that an oath or affirmation was
given cannot be proved up later.
Our decision in State v. Harris, 436 N.W.2d 364 (Iowa 1989), offers
guidance for the present case. In Harris, a police officer sought a search
warrant based entirely on the hearsay statements of a confidential
informant. Id. at 369. Because the magistrate was “less than satisfied
with these hearsay averments, he asked that the informant be brought
before him for questioning under oath.” Id. After questioning the
informant under oath, the magistrate issued the warrant, merely noting
9
the informant’s name on the warrant application as one of the “persons
upon whose sworn testimony the magistrate has relied to issue a
warrant.” Id.
On appeal, the defendant argued that the search results should
have been suppressed because there was no record or abstract of the
informant’s testimony, which had been necessary to establish probable
cause. Id. We held otherwise, explaining as follows:
The defendant contends that in reviewing the probable
cause finding we may not consider any of the circumstances
involving the informant’s personal appearance before the
magistrate. Consideration of such evidence is precluded, he
asserts, by our decision in State v. Liesche, 228 N.W.2d 44,
48 (Iowa 1975), requiring that all evidence relied on in
issuing a search warrant must be shown on the search
warrant application or abstracted by the magistrate. We do
not find that Liesche defeats the analysis contained in the
preceding paragraph.
The Liesche doctrine only precludes the supplying of
new facts at a suppression hearing which were not
abstracted by the magistrate or contained in the affidavits
supporting the warrant application. In the present case, all
of the facts relied upon by the magistrate were in the
affidavit supplied with the warrant application. The act of
listing the informant as an additional witness indicated quite
clearly, we believe, that the informant had sworn to the truth
of the statements attributed to him in [the officer’s] affidavit.
The additional testimony taken from the magistrate at the
suppression hearing only served to corroborate that which
was already to be inferred from the record. Given these
circumstances, we conclude that this procedure did not
violate the Liesche restrictions.
Id. at 370–71. 2
Hence, we decided in Harris that so long as the facts themselves
were found in the written warrant application, it was proper to “infer[]
2Easter, a pre-Liesche decision cited by the district court, likewise stands only
for the proposition that the basis for probable cause must be set forth on “facts recited
in the affidavits and the abstracts of oral testimony endorsed on the application.” See
241 N.W.2d at 886.
10
from the record” that the informant had sworn to those facts. Id. If we
applied Harris here, we could infer from the record—even without the
suppression hearing testimony—that Deputy Furlong swore to the facts
contained in the warrant application. The judge’s signature on the jurat
immediately following the space for Deputy Furlong’s signature allows
that inference. Regardless, Deputy Furlong’s testimony eliminates any
doubt.
The court below expressed concern that if it considered Furlong’s
testimony, it would also have to receive testimony (if requested) from the
judge who issued the warrant. Yet Harris demonstrates there is nothing
necessarily amiss about such testimony. The magistrate testified in
Harris, and we voiced no concern, while noting that the testimony “only
served to corroborate that which was already to be inferred from the
record.” Id. We allow magistrates to testify at suppression hearings in
other contexts, for example, when a claim is made that the officer
omitted material information from the warrant application. See State v.
McPhillips, 580 N.W.2d 748, 751 (Iowa 1998); see also State v. Aldape,
307 N.W.2d 32, 36–37 (Iowa 1981) (relying on magistrate testimony in
overruling a motion to suppress and concluding that the defendant’s
subsequent statements were voluntary).
Of course, the better practice would be to avoid the need for taking
testimony from either the applicant or the issuing magistrate. This can
be done by ensuring that the applicant signs the application in the
magistrate’s presence. Here that did not occur due to an oversight.
However, the issuance of the warrant still complied with Iowa Code
section 808.3.
Although the question here involves interpretation of an Iowa
statute, our decision today appears to be consistent with the prevailing
11
view in other jurisdictions. One guidepost is the LaFave treatise on
search and seizure law. See 2 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 4.3(e), at 658 (5th ed. 2012). Our
court frequently cites this treatise. 3
LaFave states,
[A] written affidavit is not per se defective because it contains
no signature or because it is shown that the signature was
affixed subsequent to the search; in such instances it is still
open to the prosecution to show by testimony that the affiant
had taken an oath.
Id. at 661 (emphasis added). LaFave then goes on to cite decisions from
Florida, Louisiana, Maryland, Massachusetts, Michigan, and Texas in
support of this statement. Id. at 661–62 n.64. 4 Still other states, not
cited in the LaFave treatise, have similarly held. 5
3See, e.g., State v. Lindsey, 881 N.W.2d 411, 424 n.4 (Iowa 2016); State v.
Gaskins, 866 N.W.2d 1, 36–37 (Iowa 2015) (Appel, J., concurring specially); State v.
Kern, 831 N.W.2d 149, 168–70 (Iowa 2013); State v. Baldon, 829 N.W.2d 785, 797–99
(Iowa 2013); State v. Breuer, 808 N.W.2d 195, 199 (Iowa 2012).
4See Moreno-Gonzalez v. State, 67 So. 3d 1020, 1027 (Fla. 2011); State v.
Roubion, 378 So. 2d 411, 413–14 (La. 1979); Valdez v. State, 476 A.2d 1162, 1166–67
(Md. 1984); Commonwealth v. Young, 383 N.E.2d 515, 517 (Mass. App. Ct. 1978);
People v. Mitchell, 408 N.W.2d 798, 801 (Mich. 1987); Smith v. State, 207 S.W.3d 787,
793–94 (Tex. Crim. App. 2006).
5See Milne v. State, 607 P.2d 360, 362 (Alaska 1980) (upholding the validity of a
warrant based on testimony from the magistrate and the officer at the suppression
hearing “that the witnesses were sworn before they testified”); State v. Colon, 644 A.2d
877, 882 (Conn. 1994) (“[A]lthough probable cause must be determined from the four
corners of the warrant, we are not confined to the four corners of the warrant in
determining whether the affidavit in support of probable cause has been validly
executed.”); People v. Vera, 913 N.E.2d 86, 90 (Ill. App. Ct. 2009) (“Although the best
practice would be to sign the complaint, the facts here show that the defect was only
technical and therefore insufficient to invalidate the warrant.”); State v. Nunn, 783 P.2d
26, 26–27 (Or. Ct. App. 1989) (holding that a court may consider extrinsic evidence in
determining whether the oath or affirmation requirement of the Oregon Constitution
had been met); State v. Keith, 978 S.W.2d 861, 869–70 (Tenn. 1998) (“[A] majority of
other state courts considering whether a search warrant is void based upon an affidavit
which contains an incomplete or defective jurat . . . allow extrinsic evidence to prove
that the affidavit was properly sworn.”).
12
LaFave does acknowledge that “[i]n some jurisdictions, the
applicable statutes or court rules may be more strict.” Id. at 662 n.64.
His list of stricter jurisdictions does not include Iowa. See id. 6
“There is a preference for warrants and we construe them in a
commonsense manner, resolving doubtful cases in favor of their validity.”
State v. Sykes, 412 N.W.2d 578, 581 (Iowa 1987). Thus, we do not adopt
the view that the warrant was invalid because the issuing judge, despite
signing the warrant, the application endorsement, and the jurat to the
application, did not strike out the words “is not” from two sentences in
the endorsement. Based on the documentation before us, no doubt
exists that the judge found probable cause to issue the warrant and
approved the warrant. See id. at 581–82 (finding that the magistrate’s
signature at the bottom of an instrument where the applicant attested to
the reason for an informant’s reliability was sufficient to allow the
conclusion that the magistrate had found the informant reliable for the
same reason). Signing the warrant was the essential act under Iowa
Code section 808.4, and that occurred. 7
6LaFave cites to a case from Georgia and a case from Pennsylvania for this
proposition. See State v. Barnett, 220 S.E.2d 730, 731–32 (Ga. Ct. App. 1975) (holding
that the application had to be signed because Georgia law requires a “written
complaint,” which it equated to an “affidavit”); Commonwealth v. Williams, 352 A.2d 67,
68 n.2 (Penn. Super. Ct. 1975) (noting that an officer’s testimony at a suppression
hearing “that he was in fact properly sworn . . . is of no consequence in light of Pa. R.
Crim. P., Rule 2003(b)”). But see State v. Herring, 692 S.E.2d 490, 496 (S.C. 2009)
(“[T]he language does not state an affidavit must be sworn in person. It only requires
the affidavit be sworn.”).
7Iowa Code section 808.4 provides,
Upon a finding of probable cause for grounds to issue a search
warrant, the magistrate shall issue a warrant, signed by the magistrate
with the magistrate’s name of office, directed to any peace officer,
commanding that peace officer forthwith to search the named person,
place, or thing within the state for the property specified, and to bring
any property seized before the magistrate.
13
IV. Conclusion.
For these reasons, we reverse the district court’s granting of the
motions to suppress and remand for further proceedings consistent with
this opinion. We do not address the question whether probable cause
existed for issuance of the search warrant and leave that for the district
court’s determination on remand.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
All justices concur except Appel, Wiggins, and Hecht, JJ., who
dissent.
____________________________________
State v. Beckett, 532 N.W.2d 751 (Iowa 1995), is not a “check the box” case and
is not on point. At that time, state law required the magistrate to specify reasons for
finding a confidential informant credible. See id. at 754. The magistrate provided no
reasons, instead putting a line through this part of the form. Id. at 753. We held this
did not substantially comply with the statute. Id. at 754.
By contrast, the present case does not involve a judicial officer’s failure to give
reasons as required by law. Instead, there was at most a scrivener error in failing to
strike out a few words. The judge’s signatures on the warrant, the application
endorsement, and the jurat all signify that the judge found probable cause for issuance
of the warrant. Sykes, which Beckett discussed and distinguished, see id., is a far more
relevant precedent.
14
#15–1830, State v. Angel
APPEL, Justice (dissenting).
I respectfully dissent.
I would find that the search warrant in this case was not validly
executed because the search warrant was not supported by an oath in
writing as obviously required by Iowa Code section 808.3 (2015). The
majority’s effort to feather the requirement that the oath be in writing is
unconvincing and reflects a troublesome lack of seriousness about
procedural regulatory in search and seizure law.
Further, I would also find that the search warrant is invalid
because of the failure of the district court to make a finding of probable
cause. We rely upon the district court to exercise appropriate judicial
oversight of the search and seizure process. We should not be left
guessing as to whether such oversight has, in fact, been appropriately
exercised.
The issuing of a search warrant—which, among other things, may
authorize a home invasion by authorities—is among the most delicate
and sensitive legal process known under our constitutional system. The
process of issuing a valid search warrant is not a bureaucratic bother in
which a lackadaisical, close-enough attitude toward legal requirements is
good enough. Because of the gravity of the individual rights at stake and
the central role of the search warrant process in protecting citizens from
unwarranted intrusions by government, our review of the warrant
process must be highly detailed and demanding.
In this case, the district court reviewing the search warrant
process performed its function admirably when it held that the search
was invalid on both grounds. This court, however, falls well short of the
mark by endorsing a sloppy, poorly executed search warrant process.
15
Once again, we will be required to vigorously engage in damage control to
limit the harm in future cases and to prevent search and seizure law
from being substantially compromised by relaxed standards designed to
excuse or avoid legal requirements that protect our citizens.
I. Introduction.
The application for the search warrant in this case begins, “Being
duly sworn, I, the undersigned, say that at the place (and on the
person(s) and in the vehicle(s)) described as follows.” The application
describes the house, Maurice Angel’s car, and the items to be seized.
Below the concluding paragraph, there is a signature space provided
labeled “Detective Dan Furlong, Affiant.” Detective Furlong did not sign,
and the space is blank. Below this, the application reads “Subscribed
and sworn to before me on May 8th 2015.” The district court judge
signed in the space provided for the magistrate or judge’s signature.
Below this, the application reads “WHEREFORE, the undersigned asks
that a Search Warrant be Issued” and the assistant Scott County
attorney signed in the space provided.
An “Endorsement on Search Warrant Application” was attached to
the warrant application. This document begins, “In issuing the search
warrant, the undersigned relied upon the sworn testimony of the
following person(s) in addition to the statements and information
contained in the Application and any Attachments thereto.” Detective
Furlong’s name and the address of the Scott County sheriff’s office were
typed below.
The “Endorsement on Search Warrant Application” also has a
place for the judge to circle whether or not the judge finds probable
cause. This reads, “The information (is/is not) found to justify probable
cause. . . . I therefore (do/do not) issue probable cause.” Nothing was
16
circled or otherwise marked. It was left entirely blank. Below this is a
space for a judicial signature, which the district court judge signed. The
district court judge also signed the search warrant itself.
The search warrant was executed on May 12. Kemia McDowell
was present in the house with her children. Angel and McDowell were
arrested that same day. They were each charged with six counts of
felony drug charges, and McDowell was additionally charged with child
endangerment, an aggravated misdemeanor. Angel and McDowell both
pled not guilty.
Angel then moved to suppress the results of the May 12 search
and an interrogation that followed. Angel argued that the application for
the search warrant was not supported by oath or affirmation because
Detective Furlong did not sign the application as the “Affiant.” Angel
additionally argued that a subsequent interrogation was thus the fruit of
the poisonous tree and so should also be suppressed. McDowell joined
Angel’s motion to suppress and separately moved to suppress the results
of the search as well, arguing that on the merits of the warrant
application probable cause was lacking.
The State resisted the motions and the district court held a hearing
on October 7. Over the defendants’ objections, the district court heard
testimony from Detective Furlong, but did so on a provisional basis
without determining that it would consider the testimony in ruling on the
motion. Detective Furlong testified that the issuing judge gave the
detective the oath and that the detective’s failure to sign on the form was
simply an oversight.
The district court granted Angel’s motion to suppress and
dismissed McDowell’s motion to suppress as moot. Following our
caselaw, the district court stated it would not consider Detective
17
Furlong’s testimony because a court is limited to considering what is
within the four corners of the warrant application. The district court
found that the detective’s failure to sign meant the application was not
supported by the requesting party’s oath or affirmation as required by
Iowa Code section 808.3. The district court also found the lack of an
indication on the search warrant that the issuing judge found probable
cause meant that the search warrant should not have been issued. The
district court declined to consider whether there was probable cause to
support the warrant because the application’s fatal flaws were
dispositive.
II. Failure to Provide a Written Oath as Required by Iowa Code
Section 808.3.
A. Introduction. In the next few pages, I outline why the majority
opinion is wrong on the question of whether the oath must be in writing.
I generally canvass the framework of Iowa search and seizure law, which
emphasizes the high importance of search and seizure limitations in
protecting citizens from overreaching government.
I next canvass the twin pillars of our search and seizure law—
namely, the requirement that applications for search warrants be in
writing, and our refusal to accept the so-called good-faith exception to
the warrant requirements. These two principles are bedrock concepts of
search and seizure law in Iowa. They prevent law enforcement from
engaging in post hoc rationalizations of searches and prevent a “close
enough” attitude from invading our search and seizure law and
undermining substantive legal requirements.
I then canvass in some detail the caselaw supporting my view that
the failure to provide a contemporaneous written oath is fatal to the
warrant in this case as correctly found by the district court.
18
B. The Framework of Iowa Search and Seizure Law. Article I,
section 8 of the Iowa Constitution provides,
The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and
seizures shall not be violated; and no warrant shall issue but
upon probable cause, supported by oath or affirmation,
particularly describing the place to be searched, and the
persons or things to be seized.
The Fourth Amendment of the United States Constitution provides
search and seizure constitutional protection in nearly identical language.
See State v. Ochoa, 792 N.W.2d 260, 268 (Iowa 2010). Under both
constitutions, the language requires that in order to be valid a warrant
must, at minimum, meet four requirements: (1) it must be based on
probable cause, (2) supported by a sworn affidavit, (3) describe with
particularity the place to be searched, and (4) describe with particularity
the persons or things to be seized. See Groh v. Ramirez, 540 U.S. 551,
557, 124 S. Ct. 1284, 1289 (2004); Levine v. City of Bothell, 904 F. Supp.
2d 1124, 1129 (W.D. Wash. 2012); State v. Short, 851 N.W.2d 474, 500
(Iowa 2014).
In addition to the constitutional requirements, the Iowa legislature
enacted a statutory scheme to govern the process of applying for, issuing,
and executing search warrants. See Iowa Code ch. 808. With respect to
the application of a search warrant, the statute provides,
A person may make application for the issuance of a
search warrant by submitting before a magistrate a written
application, supported by the person’s oath or affirmation,
which includes facts, information, and circumstances
tending to establish sufficient grounds for granting the
application, and probable cause for believing that the
grounds exist.
Iowa Code § 808.3. Concerning the issuance of a search warrant, the
statute states,
19
Upon a finding of probable cause for grounds to issue
a search warrant, the magistrate shall issue a warrant,
signed by the magistrate with the magistrate’s name of office,
directed to any peace officer, commanding that peace officer
forthwith to search the named person, place, or thing within
the state for the property specified, and to bring any property
seized before the magistrate.
Iowa Code § 808.4.
We have held that the “primary purpose of the legislature [was] to
insure that the magistrate should have before him a writing, showing
under oath that there was probable cause for the issuance of the
process,” because at common law or under the Constitution, a search
warrant could be supported by an oral presentation to a magistrate.
Battani v. Grund, 244 Iowa 623, 628, 56 N.W.2d 166, 170 (1952)
(emphasis added); see also State v. Cook, 498 N.W.2d 17, 20 (Minn.
1993) (“The purpose of these procedures is to have a record made
contemporaneously with the authorization of the search warrant that will
show both probable cause for a search and a reasonable need for the
warrant to be issued . . . so that later, if need be, there is a basis for
challenging the warrant that is not dependent solely on after-the-fact
recollections.”).
In the context of showing probable cause, we have said, “Warrants
are favored and search warrant affidavits must be scrutinized in a
commonsense and realistic fashion so that the police officers who draft
them are not discouraged from seeking judicial approval of their acts.”
State v. Seiler, 342 N.W.2d 264, 267 (Iowa 1983) (citations omitted); see
State v. Swaim, 412 N.W.2d 568, 571 (Iowa 1987) (stating that, because
there is a preference for warrants, findings of probable cause should be
resolved in favor of the validity of the warrant in doubtful or marginal
cases).
20
C. Twin Pillars of Iowa Search and Seizure Law.
1. Refusal to consider extrinsic evidence to support warrants.
Under Iowa law, we have repeatedly held that extrinsic evidence to
support a showing of probable cause is not admissible to rehabilitate a
warrant that is defective under Iowa Code chapter 808 or its
predecessors.
In State v. Liesche, we considered a case in which a warrant was
issued on the basis of a witness’s sworn testimony, but the warrant
application did not contain an endorsement showing the name and
address of the witness who gave the testimony, nor an abstract of the
contents of the testimony, as required by Iowa statute. 228 N.W.2d 44,
45 (1975). The application did contain an affidavit of a police officer who
wrote under oath that the officer “has a substantial reason to believe”
that evidence was concealed on the person or in the vehicle of the
defendant. Id. (emphasis added). At the suppression hearing five
months after the warrant was issued, the issuing judge testified that he
did not clearly remember the circumstances under which the warrant
was issued. Id. The judge did, however, recall that the police officer, in
an unrecorded supplement to the officer’s affidavit with no evidence that
the officer was sworn, gave the judge additional evidence—namely that
the officer was looking for a weapon used in an earlier offense and other
additional details. Id.
We held that probable cause was not shown and thus the results
of the search should have been suppressed. Id. at 49. We stated that we
would assume without deciding that the officer was sworn when he gave
the judge the additional evidence. Id. at 46. We explained, however, that
the intent of the legislature in enacting the predecessor to Iowa Code
section 808.3 was “to require the sufficiency of probable cause for
21
issuance of a search warrant to be tested entirely by the recitals in
affidavits and the magistrate’s abstracts of oral testimony endorsed on
the application.” Id. at 48. To hold otherwise, we explained, created “an
intolerable situation in the suppression hearing” in which all parties were
“dependent on the understandably poor memory of the justice of the
peace concerning information he had received more than five months
earlier.” Id. at 47. The court could therefore not consider evidence of
sworn oral testimony supporting probable cause of the warrant. Id. at
48.
Our subsequent cases support the holding in Liesche. See, e.g.,
State v. Thomas, 540 N.W.2d 658, 661–62 (Iowa 1995) (“It is well
established in Iowa jurisprudence that the issuance of a search warrant
[under Iowa Code chapter 808] is to be ‘tested entirely by the recitals in
affidavits and the magistrate’s abstracts of oral testimony endorsed on
the application.’ ” (quoting Liesche, 228 N.W.2d at 48)); State v. Seager,
341 N.W.2d 420, 426 (Iowa 1983) (“[W]e may consider only the
information contained in the foregoing affidavit in determining whether
probable cause was shown for the warrant to issue [under the statute].”);
State v. McManus, 243 N.W.2d 575, 577 (Iowa 1976) (“We must
determine the validity [under the Code] of the search warrant only upon
the facts recited in the affidavits and the abstracts of oral testimony
endorsed on the application; it cannot be rehabilitated or fortified by
later testimony.”); State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976)
(rejecting the consideration of an officer’s testimony at suppression
22
hearing because the evidence did not appear in the endorsement and
affidavits as required by statute). 8
2. Rejection of constitutional and statutory good-faith exception to
warrant requirements. Iowa does not recognize the good-faith exception
to the exclusionary rule in search and seizure cases under article I,
section 8. State v. Cline, 617 N.W.2d 277, 292–93 (Iowa 2000),
abrogated on other grounds in State v. Turner, 630 N.W.2d 601, 606 n.2
(Iowa 2001). According to Cline, we refused to adopt a good-faith
exception to article I, section 8 of the Iowa Constitution because a
violation of the right to be protected from unreasonable searches and
seizures is not mitigated by a police officer’s belief in the lawfulness of
the act. Id. at 292. We held that “the only effective way to ensure that
this right is more than mere words on paper is to exclude illegally
obtained evidence.” Id.
8Most states agree with Iowa that all evidence supporting a warrant must be
recorded as part of the warrant application. See, e.g., Hall v. State, 789 S.W.2d 456,
458 (Ark. 1990) (reasoning that a record is required to allow for review of ex parte
proceedings and “to minimize the necessity of calling magistrates to prove what can
easily be documented”); Orr v. State, 382 So. 2d 860, 861 (Fla. Dist. Ct. App. 1980) (per
curiam) (“An affidavit forming the basis of a search warrant must, in and of itself,
demonstrate probable cause for the issuance of the warrant and cannot be
supplemented by oral testimony to prove the probable cause.”); State v. Hendrickson,
701 P.2d 1368, 1371 (Mont. 1985) (approving of trial court judge’s refusal to look for
probable cause beyond four corners of the affidavit); Commonwealth v. Edmunds, 586
A.2d 887, 891 (Pa. 1991) (“[C]ourts in Pennsylvania shall not consider oral testimony
outside the four corners of the written affidavit . . . .”); State v. Carter, 160 S.W.3d 526,
533 (Tenn. 2005) (“The probable cause necessary for issuance of a search warrant must
be based upon evidence appearing in a written and sworn affidavit.”). See generally 2
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at
643–48 (5th ed. 2012). A minority of states, however, permit some extrinsic evidence to
support a warrant. See, e.g., Carter v. State, 405 So. 2d 957, 959–60 (Ala. Crim. App.
1981) (“The failure of the magistrate . . . to reduce to writing oral evidence given by the
affiant prior to the issuance of a search warrant will not vitiate an otherwise valid
search warrant.”); Cook, 498 N.W.2d at 21–22 (stating that Minnesota allows evidence
of sworn but unrecorded oral testimony); State v. McKnight, 352 S.E.2d 471, 472 (S.C.
1987) (“A search warrant affidavit which itself is insufficient to establish probable cause
may be supplemented before the magistrate by sworn oral testimony.”).
23
We thus declined to follow the approach of the United States
Supreme Court in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct.
3405, 3420 (1984). Cline, 617 N.W.2d at 292–93. Our ruling in Cline is
consistent with that in a growing number of states. See, e.g., State v.
Marsala, 579 A.2d 58, 68 (Conn. 1990); Gary v. State, 422 S.E.2d 426,
429 (Ga. 1992); Minn. State Patrol Troopers Ass’n v. State, 437 N.W.2d
670, 676 (Minn. Ct. App. 1989); State v. Novembrino, 519 A.2d 820, 857
(N.J. 1987); People v. Bigelow, 488 N.E.2d 451, 455 (N.Y. 1985);
Commonwealth v. Johnson, 86 A.3d 182, 188 (Pa. 2014).
We also have not recognized a good-faith exception to Iowa Code
sections 808.3 and 804.4. Thomas, 540 N.W.2d at 666; State v. Iowa
Dist. Ct., 472 N.W.2d 621, 624 (Iowa 1991). We explained our reasoning
in State v. Beckett, 532 N.W.2d 751, 755 (Iowa 1995). In Beckett, we
stated that “[a]dopting a good faith exception to the statutory
requirement would effectively defeat the purpose of the statute because
failure to comply with the statute would be of no consequence.” Id.
Thus, we held in Beckett that if a warrant is invalid under the statute, a
motion to suppress must be granted. Id.
D. Caselaw on Validity of Warrants Without Contemporaneous
Record of Oath or Affirmation. Although we have generally rejected
extrinsic evidence to support a warrant and have rejected a good-faith
exception to the exclusionary rule, we have not as yet specifically
considered a case under Iowa law concerning the validity of a warrant
when there is no evidence in the four corners of the warrant application
that the police officer requesting the warrant was duly sworn. A number
of other states, however, have considered the question with mixed
results.
24
Courts from a number of jurisdictions have held that a warrant
application that fails to show the affiant was sworn meant that the
evidence from the search should have been suppressed. The Supreme
Court of New Jersey considered a case involving the validity under court
rules of an unrecorded telephonic request for a warrant in State v.
Valencia, 459 A.2d 1149, 1151 (N.J. 1983). In Valencia, a police officer
called a judge and read to the judge an unsworn affidavit and did not
formally affirm the affidavit. Id. at 1151–52. The judge orally authorized
the search. Id. at 1152. After the search, the officer visited the judge,
took a formal oath, swore to the contents of the affidavit, and the judge
signed the written search warrant. Id. New Jersey court rules did not
provide for telephonic warrants, but the state argued that the telephonic
request functionally complied with the court rule on warrants. Id. at
1153. The rule on affidavits required that the application present
evidence through either a written affidavit or through sworn testimony
recorded in a transcript. Id.
The New Jersey Supreme Court held that the search warrant was
invalid. Id. at 1154. The New Jersey court explained that “strict
adherence to the protective rules governing search warrants is an
integral part of the constitutional armory safeguarding citizens from
unreasonable searches and seizures.” Id. at 1153. The overall objective
of the rules on warrants, the court further stated, “is to enhance the
soundness and integrity of the judicial decisional process,” and the
requirement of a written affidavit or recorded sworn testimony is
essential in order to encourage the presentation of trustworthy evidence.
Id. “The failure to meet these several requirements subverts the
reliability of the decisional process; it undermines the proper discharge of
the judiciary’s responsibility and clouds the judge’s role in authorizing
25
the search.” Id. at 1154. The lack of evidence of an oath, among other
problems, could “[u]nder no circumstances . . . be fairly regarded as
‘technical insufficiencies or irregularities.’ ” Id.
An Indiana appellate court considered a case in which a transcript
of a police officer’s oral testimony to obtain a warrant definitively showed
that the officer was not under oath. See State v. Brown, 840 N.E.2d 411,
413 (Ind. Ct. App. 2006). The state conceded the lack of an oath
rendered the warrant defective under Indiana statute, but argued either
the Leon or Indiana’s statutory good-faith exception to the exclusionary
rule should apply. Id. at 414–15.
The Indiana appellate court held that the good-faith exception did
not apply in that case. Id. at 423. The good-faith exception did not
apply, the Indiana appellate court reasoned, because an oath or
affirmation is an “essential prerequisite to obtaining a valid search
warrant.” Id. at 421 (quoting State v. Tye, 636 N.W.2d 473, 477 (Wis.
2001)). A warrant that lacks an oath or affirmation is so deficient on its
face, the court held, that “reliance upon the warrant is unreasonable.”
Id. (quoting Tye, 636 N.W.2d at 480 (Crooks, J., concurring)). An oath is
such an essential part of a warrant because the requirement
is designed to ensure that the truth will be told by insuring
that the witness or affiant will be impressed with the
solemnity and importance of his words. The theory is that
those who have been impressed with the moral, religious or
legal significance of formally undertaking to tell the truth are
more likely to do so than those who have not made such an
undertaking or been so impressed.
Id. at 422 (quoting United States v. Brooks, 285 F.3d 1102, 1105–06 (8th
Cir. 2002)). As such, the requirement of an oath “is no technical or
trivial component of the Warrant Clause of the Fourth Amendment.” Id.
(quoting United States v. Chapman, 954 F.2d 1352, 1370 (7th Cir. 1992)).
26
Disregarding the oath or affirmation requirement would “open wide the
door to the issuance of unlawful warrants.” Id. at 416.
Using similar reasoning, the Supreme Court of Wisconsin held that
a warrant not supported by oath or affirmation as required by the United
States and Wisconsin Constitutions cannot fall within Wisconsin’s good-
faith exception to the exclusionary rule. See Tye, 636 N.W.2d at 479–80
(majority opinion). In Tye, the police officer requesting the warrant failed
to sign and swear to the truth of the affidavit. Id. at 475.
The Wisconsin court rejected the state’s argument that the
requirement of an oath or affirmation is a matter of form, not substance.
Id. at 478. The Wisconsin Supreme Court explained, “An oath or
affirmation protects the target of the search from impermissible state
action by creating liability for perjury or false swearing for those who
abuse the warrant process by giving false or fraudulent information.” Id.
(footnote omitted). The exclusionary rule did not apply, the Wisconsin
Supreme Court concluded, because an affidavit not supported by an oath
or affirmation shows plainly that a judge or magistrate has no business
issuing a warrant. Id. at 479.
The Supreme Court of Alaska considered a motion to suppress
when a warrant stated it was based on sworn testimony of a witness, but
a transcript of such testimony failed to show that the witness was placed
under oath. Milne v. State, 607 P.2d 360, 362 (Alaska 1980). The
issuing magistrate testified the witness was sworn just prior to the
recorded portion of the hearing. Id.
The Alaska Supreme Court held that, while a showing of the
constitutional requirement of an oath was satisfied by the magistrate’s
testimony, a state statutory requirement that oaths must be on the
record was not met. Id. The Alaska Supreme Court announced that it
27
would enforce this requirement prospectively, but would allow the
evidence to be admitted in the instant case. Id. The Alaska Supreme
Court explained, “Our purpose in doing so is to avoid the necessity of
later being forced to speculate whether the oath was in fact given or as to
its sufficiency.” Id.
The Court of Appeals of Georgia held that evidence should have
been suppressed when a warrant was issued on the basis of an affidavit
signed by the issuing judge but not by the requesting police officer, in
violation of Georgia statute. Henry v. State, 626 S.E.2d 511, 511–12 (Ga.
Ct. App. 2006). The Georgia appellate court stated that it was axiomatic
that a “signature of the affiant is necessary to the validity of an affidavit.”
Id. at 512–13 (quoting State v. Barnett, 220 S.E.2d 730, 732 (Ga. Ct. App.
1975)). The signature of the issuing judge on the affidavit did not cure
the lack of the affiant’s signature showing that the affiant was under
oath. Id. at 513.
In Commonwealth v. McAfee, a Pennsylvania superior court held
that an affidavit supporting a warrant was fatally defective under the
Pennsylvania Constitution and a state statute on warrants because the
affidavit supporting the warrant did not include evidence showing that
the requesting officer was properly sworn. 326 A.2d 522, 522–23 (Pa.
Super. Ct. 1974). The McAfee court said that under the Pennsylvania
Constitution and under statute, an oath must be in writing—permitting
later testimony that an oath occurred would “render the constitutionally
provided safeguard meaningless.” Id. at 523; see also Commonwealth v.
Williams, 352 A.2d 67, 68 (Pa. Super. Ct. 1975).
There is contrary authority. A number of states have declined to
hold search warrants defective for lack of oath or affirmation under the
good-faith exception which Iowa has rejected. For example, in federal
28
jurisdictions which necessarily recognize the United States Supreme
Court’s good-faith exception in Leon, good-faith search warrants with
defective oaths or affirmations have been upheld. See, e.g., United States
v. Schubert, 528 F. App’x 613, 618 (7th Cir. 2013); United States v.
Guzman, 507 F.3d 681, 686 (8th Cir. 2007).
A number of state courts have also upheld searches pursuant to
warrants with defective oaths or affirmations. Again, however, the
mechanism employed in these state court cases is often a variant of the
good-faith exception rejected in Iowa.
For instance, a California appellate court considered a case in
which a “Statement of Probable Cause” did not contain the verification or
signature of the police officer requesting the warrant. People v. Leonard,
57 Cal. Rptr. 2d 845, 847 (App. Ct. 1996). An attached affidavit did
contain the officer’s verification and signature, but the affidavit said that
the officer “has probable cause to believe and does believe” in the search
warrant application. Id. The defendant sought to suppress the results of
the search, arguing that the unsworn and unsigned “Statement of
Probable Cause” was the only document containing the factual
information used to support issuing the search warrant, and the sworn
affidavit merely contained the officer’s belief that a warrant should be
issued. Id.
The California court recognized the defect in the oath and
emphasized that “[t]he failure of the affiant to swear to the truth of the
information given to the magistrate . . . cannot be construed as a
‘technical’ defect. It is a defect of substance, not form.” Id. at 848. Yet,
the California court held that the evidence was admissible under
California’s version of the Leon good-faith exception. Id. at 849.
According to the California court, “We emphasize however, that were it
29
not for the Leon exception, we would be compelled to declare the warrant
invalid and the search illegal.” Id.; see also People v. Vera, 913 N.E.2d
86, 90 (Ill. App. Ct. 2009) (relying on Illinois statutory exception similar
to Leon).
While we have emphasized the undesirability of relying at a
suppression hearing upon “the understandably poor memory” of a
magistrate concerning information received many months earlier in
Liesche, 228 N.W.2d at 47–48, other courts have been less committed to
the notion that the validity of a search should be based upon the
contemporaneous record established before the magistrate, see, e.g.,
State v. Nunn, 783 P.2d 26, 26–27 (Or. Ct. App. 1989) (considering
extrinsic evidence in the form of later testimony sufficient to show that
warrant was executed under oath); State v. Keith, 978 S.W.2d 861, 869
(Tenn. 1998) (allowing extrinsic evidence to show that issuing judge
properly swore in affiant); Smith v. State, 207 S.W.3d 787, 792–93 (Tex.
Crim. App. 2006) (considering extrinsic evidence in the form of
postwarrant affidavits from police officer and issuing judge attesting that
the judge personally swore in the officer).
Finally, it is worth noting that we did consider a case involving a
defective warrant under Missouri law which bears some passing
resemblance to the instant case. In State v. Davis, an Iowa police officer
was duly sworn and signed an application, which was verified by a
notary public. 679 N.W.2d 651, 654 (Iowa 2004). Under a Missouri
statute, however, a valid warrant must be sworn to and signed by a
Missouri peace officer or a prosecuting attorney. Id. at 655. A Missouri
prosecutor signed the application—but while the application stated that
the prosecutor was duly sworn when he signed, there was no verification
30
and nobody could testify that they observed the prosecutor take the oath.
Id. at 654.
We held that the defect did not rise to the level of a violation of the
Iowa Constitution. Id. at 658. In considering the Missouri statute, we
noted that while we had rejected the good-faith exception to the
exclusionary rule, Missouri courts adopted the good-faith exception. Id.
at 659. We stated, “We see no reason to give greater protection to the
integrity of the Missouri statutes than the Missouri courts do under
similar circumstances.” Id. We therefore held that the evidence was
admissible under Missouri’s good-faith exception to the exclusionary
rule. Id.
E. Application of Iowa Search and Seizure Principles.
1. Rejection of extrinsic evidence to establish oath or affirmation.
The State argues that Iowa Code section 808.3 does not require the oath
or affirmation be in writing on the application, only that the evidence
showing probable cause be in writing. Closely tied to this argument, the
State also argues that we should permit evidence extrinsic to the warrant
application to show that the affiant had taken an oath or affirmation. I
think this is an incorrect reading of the statute.
Iowa Code section 808.3 requires “a written application, supported
by the person’s oath or affirmation, which includes facts, information,
and circumstances tending to establish sufficient grounds for granting
the application.” We have held that the warrant statute prohibits a court
at a suppression hearing from considering oral evidence in support of a
warrant because resorting to such oral evidence creates an “intolerable
situation” in which all parties must depend on the issuing judge or
magistrate’s memory as to the contents of the oral evidence, making an
accurate and meaningful review of the search warrant impossible.
31
Liesche, 228 N.W.2d at 47–48; accord Cook, 498 N.W.2d at 20 (holding
that the purpose of Minnesota’s statutory warrant procedures was to
create a contemporaneous record to allow for a basis of challenging the
warrant not dependent on after-the-fact recollections).
The rationale for requiring all evidence of probable cause be within
the four corners of the warrant application applies equally to requiring all
evidence of the affiant’s oath or affirmation being within the four corners
of the warrant application. Contemporaneously recorded evidence is the
best evidence showing that the affiant was duly sworn because it is the
most accurate. See State v. Paschal, 300 N.W.2d 115, 117 (Iowa 1981);
State v. Thornton, 300 N.W.2d 94, 96 (Iowa 1981). After-the-fact
recollections as to whether the affiant was duly sworn must, by
necessity, be less certain due to the passage of time. See 2 David L.
Faigman, et al., Modern Scientific Evidence: The Law and Science of
Expert Testimony § 19:10 (2016–2017 ed.), Westlaw (database updated
Dec. 2016). Additionally, the fact that police officers, judges, and
magistrates are involved with numerous warrant requests must diminish
the recollection of a single such request six months or a year later. See
Liesche, 228 N.W.2d at 45 (issuing judge, five months after issuing
warrant, could not clearly recall the circumstances of issuing the
warrant); Smith, 207 S.W.3d at 789 (involving a judge not recalling
specific warrant, but testifying as to his standard warrant issuing
practice).
Were we to allow testimony regarding whether the affiant was
under oath, we would be forced to allow for the parties to call the issuing
judge or magistrate to testify as to his or her recollections. This is so
because a police officer testifying about the oath or affirmation has a
strong interest in the warrant being upheld. See Paul Benjamin Linton,
32
Unrecorded Oral Testimony in Support of a Search Warrant: Is It
Admissible? Is It Advisable?, 14 Loy. U. Chi. L.J. 57, 66 (1982).
Other states which allow for extrinsic evidence on the oath or
affirmation often hear testimony from the issuing judge or magistrate.
See, e.g., Milne, 607 P.2d at 362; Valdez v. State, 476 A.2d 1162, 1166
(Md. 1984); Valencia, 459 A.2d at 1156 n.2. I believe that judges and
magistrates testifying in suppression hearings blurs the independence
and impartiality of the judiciary. See generally 98 C.J.S. Witnesses § 13,
at 39 (2013) (opining that when it is reasonably possible to avoid, a judge
should not be called as a witness); Timothy E. Travers, Annotation,
Judge as Witness in Cause Not on Trial Before Him, 86 A.L.R. 3d 633,
644–46 (1978) (collecting cases where testimony of judges are excluded
because of appearance of impropriety).
It is important to emphasize that the question of whether the
proper oath or affirmation was provided is not a binary yes or no
question. Whether the oath or affirmation is sufficient includes
questions of the content of the oath and questions surrounding the scope
of the oath, such as whether the oath applied to all written submissions,
some written submissions, or any oral submission. See Leonard, 57 Cal.
Rptr. 2d at 848–49. Judicial after-the-fact testimony on these issues is
not likely to be a productive enterprise, and reliance on the testimony of
the officer involved is problematic because the officer will have a strong
incentive to ensure that the search is sustained, thereby defeating the
basic notion that a neutral magistrate has determined that all the
requirements of a valid search warrant have been met.
I find the cases from other jurisdictions offered by the State, and
similar cases in support of overruling the motion to suppress, of little
persuasive value. Of the jurisdictions which hold that evidence is
33
admissible when the application for the warrant does not include
recorded evidence of an oath or affidavit, two states and the federal
courts do so on the basis of the good-faith exception to the exclusionary
rule. See, e.g., Schubert, 528 F. App’x at 618; Guzman, 507 F.3d at 685–
86; Leonard, 57 Cal. Rptr. 2d at 849. Particularly striking, the California
appellate court in Leonard stressed that the lack of proof of an oath was
not a technical defect, nevertheless, the court was compelled to rule the
evidence was admissible under the good-faith exception. 57 Cal. Rptr.
2d at 849.
All other states which hold such evidence admissible do so because
these states generally allow extrinsic evidence in support of warrant
applications. See, e.g., Valdez, 476 A.2d at 1163; State v. Lindsey, 473
N.W.2d 857, 859 (Minn. 1991); Nunn, 783 P.2d at 26–27; Keith, 978
S.W.2d at 869; Smith, 207 S.W.3d at 792. Because we do not allow
extrinsic evidence nor recognize the good-faith exception, the reasoning
supporting the admission of such evidence employed by these cases is
simply not applicable in the Iowa context. Likewise, our holding in Davis
is not relevant to the instant case because the warrant in question was
accused of violating a Missouri statute, and we upheld the search on the
basis of Missouri’s adoption of the good-faith exception to the
exclusionary rule. 679 N.W.2d at 659.
The reasoning employed by the cases holding that such evidence
should be suppressed is more persuasive. These cases stress that the
lack of evidence of an oath or affirmation is not a mere technicality, but a
requirement that goes to the heart of the liberty that the Fourth
Amendment seeks to protect. See Brown, 840 N.E.2d at 421 (holding an
oath is an essential prerequisite to obtain a valid warrant); Valencia, 459
A.2d at 1153–54 (stressing that upholding a warrant on the basis of an
34
unsworn affidavit “subverts the reliability of the decisional process[,] . . .
undermines the proper discharge of the judiciary’s responsibility[,] and
clouds the judge’s role in authorizing the search”); Tye, 636 N.W.2d at
478 (finding that an oath protects citizens from impermissible state
action by imposing perjury liability for individuals who give false
information); see also People v. Dinger, 435 N.E.2d 1348, 1350 (Ill. App.
Ct. 1982) (“The necessity of a sworn statement, or one made under oath
is not a minor defect which does not prejudice the rights of the
accused.”).
I would therefore hold that under Iowa Code section 808.3
extrinsic evidence may not be used to show that the affiant of a warrant
application swore to or affirmed the contents of the application.
2. Review of intrinsic facts to support the warrant. Having
concluded that Iowa Code section 808.3 requires that we may only
consider evidence within the four corners of the warrant application in
determining whether the warrant application satisfies the requirement
that the affiant swore to or affirmed the contents of the application, I
next turn to the question of whether there is other evidence within the
warrant application that is sufficient to show that Detective Furlong
swore to or affirmed the facts contained in the warrant application.
I do not believe that there is sufficient other evidence within the
four corners of the warrant application to cure the lack of Detective
Furlong’s signature. I acknowledge that “magic words” are not required
to show that the affiant swore to or affirmed the contents of the
application, but there must be some approximation of an oath or
affirmation subscribed to by the affiant. See Levine, 904 F. Supp. 2d at
1130.
35
Further, I think the best interpretation of Iowa Code section 808.3
is that the oath or affirmation itself should be in writing signed by the
affiant. By requiring the written application to be in writing and
supported by oath or affirmation, there can be no dispute with respect to
the content of the oath or its scope. In Battani, we emphasized that the
legislative purpose behind Iowa Code section 808.3 was that the
magistrate “should have before him a writing, showing under oath that
there was probable cause.” 244 Iowa at 628, 56 N.W.2d at 170
(emphasis added). From the statutory language and the caselaw, it
seems clear that the writing (1) must show probable cause and (2) must
be under oath or affirmation.
In this case, the issuing magistrate signed a document with a
conclusory recital that the application was “[s]ubscribed and sworn to
before me.” Ordinarily, however, to “subscribe” to a document means to
“write (one’s name) underneath; to put (one’s signature) on a document.”
Subscribe, Black’s Law Dictionary (10th ed. 2014). Of course, Detective
Furlong did not subscribe to the document by signing it. See Henry, 626
S.E.2d at 513 (suppressing evidence when the warrant indicated that the
issuing judge relied upon the sworn affidavit of an officer, but the officer
did not sign the affidavit purported to have been made by him under
oath). The lack of Detective Furlong’s subscription to the warrant
application in this case suggests that the language in the court order is
mere boilerplate. Cf. State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015)
(holding boilerplate does not reveal judicial reasoning in sentencing
context); State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001) (holding
that an ambiguous boilerplate recital of a waiver of rights in sentencing
was not sufficient evidence of waiver); see also Gorham v. State, 981
S.W.2d 315, 318 (Tex. Ct. App. 1998) (holding preprinted boilerplate
36
recitals of knowing plea of guilt signed by trial judge not sufficient when
records fail to show the truth of the recitals).
This situation is similar to when an affiant has neglected to sign a
document under oath, but a notary public has notarized the document
as having been signed under oath—courts reject that the notary public’s
affirmation suffices to show that the document is valid. See, e.g., New
Millennium Psychological Servs., P.C. v. Unitrin Advantage Ins. Co., 929
N.Y.S.2d 830, 831 (App. Term 2011) (finding a psychologist’s “affidavit”
with no signature attesting that psychologist was duly sworn, but
containing notary public’s stamp and signature attesting to swearing
among other problems, was not a valid affidavit); In re Schlegel’s Will, 116
N.Y.S. 1038, 1038 (Sur. Ct. 1909) (rejecting a will that was not
appropriately signed by testator, but was signed and notarized by
notary); State ex rel. McCurdy v. DeMaioribus, 198 N.E.2d 60, 61 (Ohio
1964) (rejecting realtor’s petition when no qualified person signed the
petition as its “circulator,” but petition was authorized by notary public);
see also State v. Phippen, 244 N.W.2d 574, 575–76 (Iowa 1976) (finding
a criminal information defective when the police officer who signed
complaint indicated he was sworn, but no one signed in the “[s]ubscribed
and sworn to before me” jurat); Miller v. Palo Alto Bd. of Supervisors, 248
Iowa 1132, 1136–37, 84 N.W.2d 38, 40–41 (1957) (holding evidence
insufficient to prove valid oath when jurat was blank and sheriff did not
testify he administered oath to commissioners).
I note that I do not believe our holding in State v. Walker is
relevant to the case before us. 574 N.W.2d 280 (Iowa 1998). In Walker,
we held that a defendant who has falsely asserted to have served a
subpoena could be prosecuted for perjury on the basis of being under
oath, even though the notary public testified that she had not
37
administered the oath to the defendant. Id. at 281, 286 (finding
substantial evidence such that a jury could conclude the defendant could
have been under oath).
The key difference between this case and Walker is that the
defendant in Walker, despite having never been administered an oath,
signed the proof of service, which the notary public then properly
notarized. Id. at 281. We explained it was the “corporal act” of signing at
the bottom of the proof of service that called the defendant’s attention to
the fact that the defendant was asserting that service had occurred
under penalty of perjury. Id. at 287. Here, there is no evidence on the
face of the warrant application showing any similar corporal act that
could lead us to conclude that Detective Furlong was formally affirming
the contents of the warrant application.
I thus conclude that boilerplate language in the order does not
satisfy the statutory requirements of Iowa Code section 808.3 that the
application be in writing, supported by oath or affirmation.
F. Summary. For the above reasons, I conclude the district court
got it right. The district court properly granted defendants’ motion to
suppress based on the lack of Detective Furlong’s signature or any other
contemporaneous written record showing that the application was
supported by the detective’s oath or affirmation.
III. Failure to Expressly Find Probable Cause.
A. Introduction. The second issue in this case relates to the
failure of the magistrate to check the box on the form to indicate whether
the magistrate found that there was probable cause to support the
search or whether the showing was inadequate. There is no dispute that
the magistrate ultimately signed the application. The boxes in the form,
however, were left blank.
38
B. Caselaw on “Check the Box.” Iowa Code section 808.4
provides that “[u]pon a finding of probable cause for grounds to issue a
search warrant, the magistrate shall issue the warrant.” The search
warrant in this case provided a “check the box” format whereby the
magistrate could find either that the information is or is not found to
justify probable cause. In this case, the boxes went unchecked, and
there was no express finding of probable cause contrary to the plain
command of the statute.
We considered a similar flaw in Beckett, 532 N.W.2d 751. In the
controversial case of Illinois v. Gates, the United States Supreme Court
adopted a “totality of the circumstances” test for determining the
reliability of an informant’s information supporting a warrant. 9 462 U.S.
213, 238–39, 103 S. Ct. 2317, 2332 (1983). In response, the Iowa
legislature enacted a statutory provision to ensure that warrants are
issued only upon reliable information. Beckett, 532 N.W.2d at 754; see
Iowa Code § 808.3. The more rigorous Iowa statutory test, contained in
Iowa Code section 808.3, required the magistrate to make a
determination that the information supplied by an informant appears
credible either because the sworn testimony indicates that the informant
has given reliable information on previous occasions or because the
informant or the information provided by the informant appears credible
for reasons specified by the magistrate. Search warrants in Iowa thus
could not be based on inarticulate “totality of the circumstances” tests
when no factor is determinative, everything is relevant, and the ultimate
9Many state courts have declined to follow Gates under state law. See, e.g.,
State v. Jones, 706 P.2d 317, 322 (Alaska 1985); State v. Cordova, 784 P.2d 30, 31–32
(N.M. 1989); People v. Griminger, 524 N.E.2d 409, 412 (N.Y. 1988); State v. Jackson, 688
P.2d 136, 143 (Wash. 1984).
39
decision turns more on the predilections of the court rather than the
specific facts of the case. See Beckett, 532 N.W.2d at 754.
In Beckett, the magistrate did not make a specific finding that the
information given by a confidential informant was credible. Id. The state
defended on the ground that the materials attached to the warrant
indicated that the magistrate made an inquiry into the credibility of the
informant and argued that substantial compliance was therefore present.
Id. We rejected the argument, noting that the magistrate failed to do
what the statute directed—namely, provide a reason why the informant
or the information provided appeared credible. Id. While we gave
deference to magistrate determinations, we emphasized that “the issuing
magistrate’s function be performed in a neutral and detached manner,
not serving merely as a rubber stamp for the police.” Id. at 753 (quoting
Swaim, 412 N.W.2d at 571).
The state in Beckett further argued that the court should adopt a
good-faith exception sustaining the search because the officers believed
they searched the residence of the defendant. Id. at 754. We stated that
accepting a good-faith exception when there is a failure to comply with
the statute “would be tantamount to judicial repeal of the statute.” Id. at
755; see Iowa Dist. Ct., 472 N.W.2d at 625.
Just as the statute required a specific finding regarding credibility
in Beckett, the statute here requires the court make a specific finding.
As in Beckett, the district court did not make the required finding.
Following the approach in Swaim, 412 N.W.2d 568, and Iowa District
Court, 472 N.W.2d 621, as embraced in Beckett, we should reject “a
rubber stamp” approach to the warrant process, decline to take an
approach that is “tantamount to judicial repeal of the statute,” and
enforce the statutory requirements as written. 532 N.W.2d at 753, 755.
40
IV. Conclusion.
More than a hundred years ago, the United States Supreme Court
reminded us in the search and seizure context that illegitimate and
unconstitutional practices arise from “slight deviations from legal modes
of procedure.” Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524,
535 (1886), overruled on other grounds by Warden v. Hayden, 387 U.S.
294, 87 S. Ct. 1642 (1967). The need to be vigilant is particularly strong
in search and seizure law, where “hydraulic pressures” bear heavily on
the court to water down limitations on police power. See Terry v. Ohio,
392 U.S. 1, 39, 88 S. Ct. 1868, 1889 (1968) (Douglas, J., dissenting).
Waiving strict search and seizure statutory requirements may strike
some as reasonable, but a reasonability standard in the context of search
and seizure law is necessarily based on spongy personal judgments
rather than sound legal doctrines that can be effectively enforced by each
successive generation of lawyers and judges.
Finally, I do not subscribe to the approach to search and seizure
law that views its limitation on state power as an obstacle to effective law
enforcement—needing to be curtailed and whittled down to meet
pragmatic concerns on obtaining convictions. Instead, I subscribe to the
approach of courts and lawyers—and I daresay the founders of the Iowa
Constitution—who regard search and seizure law as an essential
bulwark against arbitrary invasions by the state which often occur in the
name of advancing the asserted public interest. See Johnson v. United
States, 333 U.S. 10, 17, 68 S. Ct. 367, 370–71 (1948); United States v.
Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229 (1948).
For the above reasons, I respectfully dissent.
Wiggins and Hecht, JJ., join this dissent.