State v. Tye, 99-3331-CR.

• Decision Date: 27 November 2001
• Docket Number: No. 99-3331-CR.,99-3331-CR.
• Citation: 248 Wis.2d 530,2001 WI 124,636 N.W.2d 473
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Wilton TYE, Defendant-Respondent.
• Court: Wisconsin Supreme Court

248 Wis.2d 530

2001 WI 124

636 N.W.2d 473

STATE of Wisconsin, Plaintiff-Appellant, v. Wilton TYE, Defendant-Respondent.

No. 99-3331-CR.

Supreme Court of Wisconsin.

Oral argument September 12, 2001.

Decided November 27, 2001.

For the plaintiff-appellant the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-respondent, there was a brief by Mark D. Richards and Christy M. Hall, Racine, and oral argument by Mark D. Richards.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before the court on a certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000).¹ The State appeals an order of the Circuit Court for Racine County, Emily S. Mueller, Circuit Court Judge, suppressing evidence seized pursuant to a search warrant. We affirm the order.

¶ 2. The circuit court granted the motion of the defendant Wilton Tye to suppress evidence of drugs seized during a search of his residence. The warrant authorizing the search was not supported by a statement under oath or affirmation. The circuit court suppressed the evidence seized, holding that the warrant violated the oath or affirmation requirement explicitly set forth in the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution. The Fourth Amendment to the U.S. Constitution provides, in relevant part, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation."² Article I, Section 11 of the Wisconsin Constitution similarly states, in relevant part, that "no warrant shall issue but upon probable cause, supported by oath or affirmation."³

¶ 3. The parties agree, and we hold, that the total absence of any statement under oath to support a search warrant violates the explicit oath or affirmation requirement of both the federal and state constitutions and that the warrant therefore is constitutionally infirm. The question presented is whether evidence seized pursuant to such a search warrant must be suppressed. We conclude that the evidence seized must be suppressed.

I

¶ 4. For the purposes of the motion to suppress, the facts are not in dispute. A 30-year veteran investigator of the city of Racine police department drafted an affidavit in support of a search warrant for a residence occupied by the defendant. The investigator presented the affidavit to an assistant district attorney for review and approval, and she approved the affidavit.

¶ 5. The investigator then presented the affidavit to Racine County Circuit Court Judge Dennis Flynn on June 28, 1999. The investigator failed, however, to sign and swear to the truth of the affidavit written in support of the search warrant and failed to give sworn testimony attesting to the accuracy of the statements in the affidavit. The circuit court issued the warrant. Neither the assistant district attorney who initially reviewed the affidavit nor the circuit court judge who issued the warrant nor the investigator detected that the investigator failed to make the allegations contained in the affidavit under oath. The warrant states that attached thereto is the "sworn affidavit which is incorporated by reference." The warrant was facially defective because no sworn affidavit was attached.

¶ 6. After the warrant was issued on June 28, 1999, the investigator copied the face of the search warrant, placed the original search warrant and attached affidavit in a file and did not review these documents again until July 1, 1999, after the search warrant had been executed and he was preparing the return on the search warrant. Heroin and other evidence were seized during the search, indicating that the residence was being used for heroin sales.

¶ 7. On July 1, 1999, upon returning from executing the search warrant, the investigator realized that the affidavit supporting the warrant had not been given under oath. The investigator notified the district attorney's office and prepared a second affidavit describing the search warrant application process, his failure to sign and swear to the initial affidavit, and his discovery of these facts after he executed the search warrant. The second affidavit also stated that the contents of the initial affidavit were true. The investigator then swore to the truth of the statements contained in the second affidavit. The circuit court concluded, and the parties stipulated, that the allegations in the affidavit, if true, provided probable cause for issuance of the search warrant.

II

¶ 8. To frame our discussion, we begin by examining the historical antecedents of the oath requirement of both the federal and state constitutions. The oath or affirmation requirement relating to search warrants first appeared, albeit briefly, in England. In 1662, Parliament authorized the issuance of general warrants, known as Writs of Assistance, for collecting taxes and enforcing customs laws.⁴ The 1662 English law required officials seeking search warrants to swear an oath as a means of controlling the unfettered discretion of the searcher.⁵ In 1664, Parliament deleted the oath requirement,⁶ and in 1696 an act of William III officially applied the Writs of Assistance without the explicit oath requirement to the American colonies.⁷ Thereafter, the writs were used in the American colonies to search wherever government officials chose with nearly absolute and unlimited discretion. This power continued in the colonies well into the eighteenth century.

¶ 9. The colonists viewed the Writs of Assistance as fundamental violations of their basic right to be undisturbed in their person and property. The "[p]erceived abuses . . . were among the most deeply felt grievances held by the colonists against British government."⁸ Following independence, each of the state constitutions guaranteed individuals the right to be free from unreasonable searches and seizures. In 1776, the Pennsylvania Constitution made an oath or affirmation essential to the validity of a warrant. The Pennsylvania provision was the basis for the Fourth Amendment to the U.S. Constitution, which included the oath or affirmation language. The states ratified the Fourth Amendment in 1791 as part of the Bill of Rights.

¶ 10. In 1839, three years after the Organic Act of 1836 created the Territory of Wisconsin, the territorial legislature enacted Act 44, which required an oath in an application for a search warrant.⁹ When Wisconsin became a state in 1848, the declaration of rights in the Wisconsin Constitution, Article I, Section 11, required an oath or affirmation to support the issuance of a search warrant. This constitutional provision has never been amended and remains part of the Wisconsin Constitution.

¶ 11. The Wisconsin state constitutional oath provision has been reinforced by legislation. The 1848 Wisconsin legislature reiterated the need for an oath in an application for certain search warrants.¹⁰ The text of this statutory provision has been revised numerous times, eventually permitting telephonic search warrant applications.¹¹ Nonetheless, the oath requirement has remained throughout.¹² Most state constitutions presently include an oath or affirmation requirement for a search warrant.¹³ ¶ 12. This cursory review of the oath or affirmation requirement demonstrates the critical importance that the drafters of the federal and state constitutions have placed on the oath to support a search warrant.

¶ 13. This court has long recognized an oath or affirmation as an essential prerequisite to obtaining a valid search warrant under the state constitution. As early as 1924, this court held in State v. Baltes, 183 Wis. 545, 198 N.W. 282 (1924), that when no sworn testimony exists to support a search warrant, then the warrant is void. In Baltes, the magistrate did not administer an oath to any of the individuals providing information for the issuance of the search warrant. The Baltes court stated that "the magistrate should examine under oath the applicant for the search warrant and his witnesses . . . at least so much thereof as he relied upon in issuing the warrant. . . ."¹⁴ The Baltes court also unequivocally stated that the "essential prerequisite to the issuance of a valid search warrant is the taking of sworn testimony from the applicant and witnesses, if any . . . ."¹⁵ The information provided to support the issuance of a warrant "must be sworn to."¹⁶ The Baltes court then suppressed the evidence because no sworn testimony existed to support the warrant.¹⁷ This court has repeatedly cited Baltes for the proposition that a valid search warrant requires an oath or affirmation.¹⁸

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¶ 14. Cognizant of the significance of the constitutional requirement of an oath or affirmation, the State acknowledges, and we agree with the State, that the "failure to swear to the information upon which a warrant is obtained cannot be dismissed as a mere failure to comply with a technicality."¹⁹ As the circuit court wisely stated, the oath or affirmation requirement "is so basic to the Fourth Amendment that the Court simply can't look at it as a technical irregularity not affecting the substantial rights of the defendant."

¶ 15. However, the State makes four arguments to support its position that the seized evidence should not be suppressed:²⁰ First, it relies on Wis. Stat. § 968.22, which provides that no evidence shall be suppressed for a technical irregularity in the warrant if that irregularity does not affect the substantial rights of the defendant. Second, the State argues that the second sworn affidavit remedies the defect of the initial unsworn affidavit. Third, the State relies on State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993), to argue that an error in a warrant does not require suppression of seized evidence. Fourth, the State requests the court to allow the admission of the seized evidence under a good-faith exception to...