The Fourth Amendment does not require a search warrant be physically “signed” to issue. This case litigated it in detail in a § 2255 post-conviction proceeding relying on Groh. [See note below.] United States v. Cruz, 2014 U.S. App. LEXIS 24241 (10th Cir. December 22, 2014):
Cruz’s arguments are only partially correct. To be sure, Groh recognized that the text of the Fourth Amendment imposes four requirements on every warrant: (1) the warrant must be “based on probable cause”; (2) the warrant must be “supported by Oath or affirmation”; (3) the warrant must describe particularly the place to be searched; and (4) the warrant must describe particularly the persons or things to be seized. 540 U.S. at 557. But Cruz erroneously interprets this first requirement as requiring the face of the warrant itself to “contain[] … markings,” preferably a signature, “indicating that a neutral and detached magistrate … actually” made a finding of probable cause. Aplt. Br. at 11. Nothing in Groh, however, let alone the text of the Fourth Amendment itself, imposes such a facial requirement. Rather, the Fourth Amendment, as Groh recognized, imposes a substantive requirement that every warrant issue only “upon probable cause.” See Lyons, 740 F.3d at 725 (concluding that the Fourth Amendment’s probable cause requirement is established “by an oath or affirmation and a neutral or detached magistrate mak[ing] a probable cause determination”). Indeed, in concluding that the warrant at issue in Groh satisfied this requirement, the Supreme Court stated simply that the warrant “was based on probable cause”; it did not discuss what the warrant itself said in regards to the probable cause finding.5 540 U.S. at 557. Moreover, Groh thereafter dealt exclusively with the fourth requirement, i.e., that the warrant particularly describe the persons or things to be seized, and this requirement, by its express terms, does involve the face of the warrant.6 Thus, in sum, Groh does not stand for the proposition that a warrant must include, on its face, the issuing judge’s signature or any other specific marking from the issuing judge.
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We conclude that the Evans [United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007)] court’s interpretation of the Fourth Amendment is erroneous and thus decline to adopt it. To be sure the text of the Fourth Amendment states, in pertinent part, that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV (emphasis added). But, contrary to the conclusion reached by the Evans court, the term “issue,” as used in the Fourth Amendment, does not impose a specific “issuance” requirement, i.e., as the Evans court described it, some type of “indication [on the face of the warrant] that [the warrant] was officially authorized.” 469 F. Supp. 2d at 897. Instead, we conclude that the language of the Fourth Amendment was intended to outline what requirements must be satisfied before a warrant “shall issue.” In other words, we conclude that the term “issue” does not itself impose any requirements that must be satisfied by a warrant; instead, the specific requirements that must be imposed for a warrant to “issue” are outlined in the language of the Fourth Amendment that immediately follows the term “issue.” Cf. United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977) (“As long as the magistrate in fact performs the substantive tasks of determining probable cause and authorizing the issuance of the warrant, the amendment is satisfied.”).
Indeed, the Supreme Court’s decision in Groh supports our conclusion that the term “issue,” as employed in the Fourth Amendment, does not itself impose any specific requirements on a warrant. As previously discussed, the Court in Groh quoted the relevant language of the Fourth Amendment and immediately proceeded to indicate that this language imposes four requirements: (1) the warrant must be based “upon probable cause”; (2) the warrant must be “supported by Oath or affirmation,” e.g., an affidavit; (3) the warrant must “particularly describ[e] the place to be searched”; and (4) the warrant must “particularly describ[e] the … things to be seized.” 540 U.S. at 557. Noticeably absent from this list is the requirement of a “magistrate’s signature, or other indication of authorization, on the face of the warrant.” Evans, 469 F. Supp. 2d at 897. To be sure, the warrant at issue in Groh was signed by the issuing magistrate judge and thus its authorization was not at issue. Id. at 554 (“The Magistrate signed the warrant form.”). But, had this detail carried constitutional significance, the Court surely would have said so, particularly since it made a point to emphasize the “requirements” that were imposed by the language of the Fourth Amendment and to specify which of those requirements were satisfied or not satisfied by the warrant in question. Id. at 557 (“The warrant in this case complied with the first three of these [four] requirements”). Thus, Groh, rather than supporting the decision in Evans, undercuts it.
In addition, an examination of the ordinary meaning of the term “issue” calls into question, and thus makes us hesitant to rely on, the decision in Evans. The term “issue” is commonly defined as “[t]he action of going, passing, or flowing out,” Oxford English Dictionary Online, http://www.oed.com/view/Entry/100216?rskey=Za1fbR&result=1#eid (last visited on Dec. 4, 2014), or “[t]o ‘come out’ or be sent forth officially or publicly,” id., http://www.oed.com/view/Entry/100217?rskey=Za1fbR&result=2#eid (last visited on Dec. 4, 2014). This common and simple definition fits perfectly within the framework of the complete text of the Fourth Amendment. In other words, if we were to replace the term “issue” with this definition, the text of the Fourth Amendment would read: “no Warrants shall [go out or be sent forth officially], but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This definition, in our view, is consistent with Groh’s interpretation of the Fourth Amendment which, as we have discussed, does not read into the term “issue” any specific technical requirements.
Note: If you actually think about it, this case has to be correct: Otherwise, telephonic or email or text message search warrants would be suspect. When I became a lawyer in 1973, as a deputy prosecutor, I early pondered the question of telephonic warrants. Why not? But, it was assumed back then that they all had to be paper and signed to be authorized. Then came the cases involving accidental failure to sign or the lost original and no copies. What to do? Those cases were resolved by allowing the prosecution to recreate the warrant by testimony of the officers and issuing magistrate. See Treatise § 55.10. And what about telephonic, fax, and electronic warrant applications and warrants? See Treatise §§ 55.14–55.15. The Supreme Court made it absolutely clear in 1965 that there is a preference for search warrants, and there is a virtual presumption that a search warrant is valid to encourage the police to seek judicial approval of searches. Treatise §§ 2.17 & 53.02. Therefore, defects in the warrant issuing process have always been considered curable by testimony. This is not new.
