N.D.Ga.: Failure to swear affiant doesn’t void SW; GFE applies despite magistrate’s mere alleged cursory review

The issuing magistrate’s failure to swear the affiant officer is a judicial failure, not a law enforcement failure, and it doesn’t void the warrant, and there was probable cause. Also, the magistrate’s apparently cursory review of the affidavit still made the good faith exception apply. United States v. Gordon, 2016 U.S. Dist. LEXIS 20516 (N.D.Ga. Feb. 19, 2016):

Though the Eleventh Circuit has not addressed the issue, other circuits have uniformly applied the Leon good faith exception where the warrant issued despite the failure of the issuing magistrate to swear the affiant. See United States v. Hessman, 369 F.3d 1016, 1022-23 (8th Cir. 2004) (finding that law enforcement officers’ reliance on an unsworn and unsigned search warrant was not objectively unreasonable); United States v. Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995) (ruling the exclusion of evidence is not “the appropriate remedy” for issuing magistrate judge’s failure to administer an oath to officer); United States v. Kurt, 986 F.2d 309, 311 (9th Cir. 1993) (applying Leon where officer changed the address for warrant on instructions of judge but was not placed under oath); United States v. Moore, 968 F.2d 216, 223 (2d Cir. 1992) (holding “the lack of an oath or affirmation by the presiding officer did not destroy the warrant’s final validity”); United States v. Richardson, 943 F.2d 547, 548, 550-51 (5th Cir. 1991) (reversing district court’s decision to suppress where law enforcement officer had not signed affidavit and magistrate judge did not [*12] require oath or affirmation of facts in affidavit); United States v. Matias, 836 F.2d 744, 747 (2d Cir. 1988) (applying the good faith exception and rejecting a claim that a warrant was invalid because government agents applying for the warrant were not placed under oath or formally sworn); United States v. McMillian, No. 11-CR-193, 2012 U.S. Dist. LEXIS 10841, 2012 WL 273735, at *12 (E.D. Wis. Jan. 27, 2012) (considering Kurt, Richardson, and Matias, and finding that “[e]ven if the judge’s failure to place Detective Gomez under oath violated the Fourth Amendment, the error was the judge’s, not the detective’s”).

. . .

Here, the Court agrees with the weight of authority and finds that the Leon good faith exception would apply even if the magistrate judge failed to administer an oath or affirmation. Law enforcement officers should not be punished for the errors of judges, Leon, 468 U.S. at 916, and any error in this case—if there was any—belonged to the issuing judge, not Detective Williams. There is no evidence that Detective Williams acted in bad faith or attempted to evade the Fourth Amendment’s oath or affirmation requirement. The reasoning in Hessman applies, because applying the exclusionary rule would not serve a deterrent purpose, because “[t]he rare occasion when a magistrate accidently fails to administer an oath cannot be eliminated by suppressing the evidence in that situation.” Richardson, 943 F.2d at 551.

. . .

The Video, lasting only forty eight (48) seconds, appears to show that the magistrate judge barely reviewed the Application and Affidavit. At the February 11, 2016, evidentiary hearing, however, Detective Williams testified that he transmitted the Application and Affidavit to the magistrate judge before the beginning of the Video, and that he recalled that Magistrate Judge Roberts reviewed the affidavit and asked him questions regarding it before the events captured on the Video. The Court found Detective Williams’s testimony credible and consistent. On these facts, the Court cannot find that the magistrate judge wholly or even partially abandoned his judicial role, and he did not act as a rubber stamp by relying solely on the fact that Detective Williams asked for a warrant.

I’ve read plenty of affidavits and found probable cause in 45 seconds. That’s why you don’t see me filing many motions to suppress on lack of probable cause.