State v. Moeser

Decision Date23 November 2022
Docket Number2019AP2184-CR
Citation405 Wis.2d 1,982 N.W.2d 45,2022 WI 76
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Jeffrey L. MOESER, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, there was a brief filed by John T. Bayer and Bayer Law Offices, Milwaukee. There was an oral argument by John T. Bayer.

For the plaintiff-respondent, there was a brief filed by John W. Kellis, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by John W. Kellis, assistant attorney general.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion, in which KAROFSKY, J., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which DALLET, J., joined.


¶1 This is a review of an unpublished decision of the court of appeals, State v. Moeser, No. 2019AP2184-CR, 2021 WL 2589158, unpublished slip op. (Wis. Ct. App. June 24, 2021), affirming the Portage County circuit court's1 denial of Jeffrey Moeser's motion to suppress evidence. Moeser was convicted of operating while intoxicated (OWI) sixth offense, contrary to Wis. Stat. § 346.63(1)(a) (2019-20).2 We affirm.

¶2 Moeser challenges the warrant which compelled him to submit to a blood draw. He argues that the warrant is constitutionally defective because the affiant was not placed under oath or affirmation when he signed the affidavit which accompanied the warrant application. According to Moeser, this omission failed to satisfy the requirement under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution that warrant applications be "supported by oath or affirmation."3 As a result, Moeser argues that the circuit court erroneously denied his motion to suppress evidence and that the court of appeals erred in affirming that decision.

¶3 We conclude that the affidavit fulfilled the oath or affirmation requirement under the United States and Wisconsin constitutions because "[t]he purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth," and here the officer was impressed with that obligation. State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473 ; accord U.S. const. amend. IV ; Wis. Const. art. I, § 11. In other words, the constitutional guarantee is satisfied because the facts and circumstances demonstrate that Sergeant Brown executed this affidavit "in a form calculated to awaken [Sergeant Brown's] conscience and impress [his] mind with [his] duty to [tell the truth]." Wis. Stat. § 906.03(1) ; accord Tye, 248 Wis. 2d 530, ¶19, 636 N.W.2d 473. The United States and Wisconsin constitutions do not require that any specific language or procedure be employed in the administration of an oath or affirmation. Instead, constitutional requirements, relevant case law, and the Wisconsin Statutes all indicate that the oath or affirmation requirement is an issue of substance, not form. Here, the facts sufficiently demonstrate that the constitutional right to be free from abusive governmental searches is satisfied. Therefore, the circuit court did not err in denying Moeser's motion to suppress, and the court of appeals is affirmed.


¶4 On October 14, 2017, at about 1:30 a.m., Sergeant Steven Brown of the Portage County Sheriff's Office stopped Jeffrey Moeser for suspected OWI. A record check return revealed that Moeser had five prior convictions for operating while intoxicated. Sergeant Brown administered field sobriety tests as well as a preliminary breathalyzer test. The breathalyzer test returned a blood alcohol content (BAC) of 0.195 percent. Because of his prior convictions, the legal limit for Moeser was a BAC of 0.02 percent. See Wis. Stat. § 340.01(46m)(c). Sergeant Brown then arrested Moeser for suspected drunk driving and transported him to St. Michael's Hospital in Stevens Point, Wisconsin, for a blood draw.

¶5 Once at the hospital, Moeser refused to consent to a blood draw, causing Sergeant Brown to seek a search warrant. The affidavit in support of the warrant was completed by Sergeant Brown in the presence of Lieutenant Jacob Wills, a notary public.

¶6 The document was titled, "AFFIDAVIT." At the beginning of the affidavit, Sergeant Brown handwrote his name before the text, "being first duly sworn on oath, deposes and says." The second paragraph stated, "I have personal knowledge that the contents of this affidavit are true and that any observations or conclusions of fellow officers referenced in this affidavit are truthful and reliable." Immediately following that section, Sergeant Brown personally penned in the probable cause section, which contained facts specific to Moeser's arrest. Sergeant Brown then signed and dated the affidavit, noting that it was completed at St. Michael's Hospital before Lieutenant Wills. Sergeant Brown's signature line was immediately above the jurat,4 which read, "Subscribed and sworn to before me." Lieutenant Wills notarized the affidavit by signing it and affixing his seal. A judicial officer came to the hospital and approved the warrant application at 3:07 a.m.

¶7 Moeser's blood was drawn pursuant to the warrant and revealed a BAC of 0.220 g/100mL. The State filed a criminal complaint charging Moeser with OWI sixth offense, contrary to Wis. Stat. § 346.63(1)(a), and operating with a prohibited alcohol concentration sixth offense, contrary to Wis. Stat. § 346.63(1)(b), both felony charges.

¶8 Moeser filed a motion to suppress the blood test evidence, arguing that the warrant did not satisfy constitutional oath or affirmation requirements because Sergeant Brown was not placed under oath or affirmation. It is undisputed that Sergeant Brown made no oral oath or affirmation, either before or after signing the affidavit. It is also undisputed that he made no such oath or affirmation before the judicial officer.

¶9 The State argued that Sergeant Brown was under oath or affirmation because the language of the affidavit clearly manifested the intention to be under oath.

¶10 The circuit court heard the motion on stipulated facts and orally denied Moeser's motion to suppress.

The circuit court found that "the language in the affidavit indicates ... that Sergeant Brown swore to the truth of the information provided in the affidavit." It found that "Sergeant Brown did realize that he was swearing to the truth of what he indicated in his affidavit." The circuit court denied Moeser's motion and subsequently memorialized that ruling by written order. The order stated, "The motion to suppress blood test evidence based upon noncompliance with the oath requirement is denied." Thereafter, Moeser pled guilty to OWI sixth offense, and was sentenced.

¶11 Moeser filed a notice of appeal, and the court of appeals affirmed. Moeser, No. 2019AP2184-CR. The court of appeals concluded that Sergeant Brown's affidavit was not constitutionally defective. Id., ¶22.

¶12 Moeser petitioned this court for review, which we granted.


¶13 "Review of a decision denying a motion to suppress" under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution "presents a question of constitutional fact." State v. Coffee, 2020 WI 53, ¶19, 391 Wis. 2d 831, 943 N.W.2d 845. Under a two-step standard of review, we first "uphold a circuit court's findings of historic fact unless they are clearly erroneous." State v. Dumstrey, 2016 WI 3, ¶13, 366 Wis. 2d 64, 873 N.W.2d 502. We then "independently apply constitutional principles to those facts." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463.

¶14 This case also requires us to interpret statutes. "Interpretation of a statute is a question of law that we review de novo, although we benefit from the analyses of the circuit court and the court of appeals." Est. of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.


¶15 On appeal, Moeser does not challenge whether there was probable cause to arrest him, nor does he challenge that there was probable cause in the affidavit. Rather, he argues that Sergeant Brown was not administered any oath or affirmation and, therefore, the warrant is constitutionally defective. The State responds that the oath or affirmation requirement was met because Sergeant Brown swore to or affirmed the facts of the affidavit. In other words, the State asserts that Sergeant Brown manifested "the intent to be bound by his ... statement under circumstances that emphasize the need to tell the truth."

¶16 In analyzing these arguments, we will first discuss the oath or affirmation requirement under the United States and Wisconsin constitutions. We then turn to relevant case law. After that, we analyze Wisconsin Statutes’ oath or affirmation requirements. In short, these sources lead to the conclusion that Sergeant Brown's affidavit survives constitutional scrutiny.

A. Constitutional Requirements

¶17 The United States and Wisconsin constitutions protect and guarantee that "[t]he 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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation."5 U.S. Const. amend. IV ; accord Wis. Const. art. I, § 11. Consequently, an oath or affirmation is an "essential prerequisite to the issuance of a valid search warrant" under both our state and federal constitutions. Tye, 248 Wis. 2d 530, ¶13, 636 N.W.2d 473 (quoting State v. Baltes, 183 Wis. 545, 552, 198 N.W. 282 (1924) ). When it comes to the administration of an oath or affirmation, neither constitution requires that specific...

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