"the failure to sign a search warrant affidavit does not, by itself, invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate."All you PDs and criminal defense lawyers out there, what do you think? How important is that witness' signature on the affidavit verifying "probable cause" to conduct a search, and what are the potential consequences, if any, of not requiring it?
UPDATE: DallasBlog mentioned the case and asked, "Is this a reasonable way to address a technicality by which bad guys get off, or a trampling of rights?"
MORE: See The Wretched of the Earth's weekly CCA Update on this case.
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6 comments:
Without a signature, the only people who could say for sure someone swore to the affidavit would be the cop and the judge. If either a) one or both dies, or b) the cop and judge (many of whom are ex-prosecutors) collaborate to claim PC was sworn when it wasn't - this could be a serious problem.
Getting search warrants shouldn't be some informal, anythng-goes process - there should be rules and requiring a signature from the affiant is a reaonsable one, or I would have thought so.
As a criminal defense lawyer in a rural area, I would bet that the number of times an officer actually orally swears to the truth of the affidavit would be . . . once in a blue moon.
"I would bet that the number of times an officer actually orally swears to the truth of the affidavit would be . . . once in a blue moon."
That's interesting to me: Help me out. What would be the implications of that fact for this ruling?
Just thinking aloud: If there's no signature, and if in most cases the officer wouldn't have actually sworn anything before a judge, to show "evidence proves that the affiant personally swore to the truth of the facts" before the magistrate would either a) not be possible, or b) require the officer and magistrate both to lie.
Is that an accurate assessment, assuming the rural criminal defense lawyer is correct? And how likely is it, in attorneys' experience in particular, that both the cop AND the judge would lie about such a thing? At that point, it seems like you've got a conspiracy to deprive someone of their civil rights, but one that's impossible to prove as long as they both stuck to their story.
What would happen if, after a suspect is arrested under one of these unsigned warrants, the now defendant neglected or refused to sign the plea bargain? Just a technicality?
Grits: The criminal courts judges I know would not lie about having heard an officer swear, but there are surely some JPs and Muni court judges who would like to ingratiate themselves with the police. Also, most judges would be inclined to believe an officer who swore anything at all.
Warrant applications come to a magistrate in a stack once or twice a day, and he/she reviews them and then signs them. I haven't ever seen a rejected application, but I suppose it happens. The application in question here should certainly have been rejected by the neutral and detached magistrate, and that brings me to the following cans of worms: Often the magistrate is not an attorney, and has no legal training in search and seizure law. These folks, usually JPs, are legally qualified to provide the constitutionally required magistrate's signature, but are not actually qualified to review the application for propriety.
This same crap happens on PC affidavits for warrantless arrests. I had a JP who failed to recognize that the officer had arrested my client for felony child endangerment with one of the elements entirely unaddressed in the PC afiidavit. When I informed this neutral and detached magistrate that the PC didn't make out an offense on its face, the judge replied that she thought my client had done something really bad, so she was going to approve the arrest and refuse to grant personal bond. When I reminded the judge she wasn't authorized to ignore the lack of an element to the offense, she ignored me too. This ignorant arrogance cost my client two grand and counting.
Too often JPs believe their role is to provide judicial support for the police. A requirement that all judges be lawyers in good standing would help.
Amen to requiring all magistrates be lawyers in good standing. I don't have any experience with magistrates in criminal law (as a misdemeanor pd I rarely have to dig that far to find something to hang my hat on), but I had some awful experiences with JP's when I was at Legal Aid. Based on numerous hearings, my personal opinion was that they generally didn't know the law from a hole in the ground.
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