LA rule permitting electronic warrant applications and issuance doesn’t violate 4A or Rule 41

The police got a search warrant from a Louisiana state judge by electronic means, but the case ended up in federal court. Louisiana’s criminal rule permitting electronic warrant applications does not violate the “oath or affirmation” requirement of the Fourth Amendment. Electronic signatures are permitted on Rule 41 warrants, too. United States v. Demouchet, 2016 U.S. Dist. LEXIS 173976 (M.D.La. Dec. 16, 2016):

Defendant claims the provision of the Louisiana Code of Criminal Procedure authorizing the submission of an application for a search warrant via electronic means is unconstitutional. He alleges this procedure under La.C.Cr.P. art. 162.2 disposes of the “oath and affirmation” requirement in contravention of Federal Rule 41. His reasoning is incorrect. First, Rule 41 unambiguously applies specifically to federal law enforcement officers, and does not encompass state law enforcement officers seeking a search or arrest warrant. See Fed. R. Crim. Pro. 41(a)(2)(C) & (b). Second, the plain language of Article 162.2 embodies a paragraph akin to the federal “oath and affirmation” requirement, and clearly states that by electronically signing the application, the applicant “swear[s] that the facts contained in the electronic testimony are true and correct to the best of his knowledge[.]” Defendant has offered no jurisprudential support for his contention Art. 162.2 is unconstitutional as a general matter, or that it was unconstitutionally applied to him.

In any event, the Court notes that there has been no case analyzing the constitutionality of Article 162.2, despite the fact it is routinely used by Louisiana state magistrate judges. (See Doc. 53 at 6 (Detective Erdey testifying that every magistrate judge in Livingston Parish utilizes the procedure by which law enforcement officials can submit warrant applications electronically).) In United States v. Brooks, 285 F.3d 1102 (8th Cir. 2002), the defendant appealed the denial of his motion to suppress, claiming that the officer who applied for the search warrant which led to his arrest was not under oath at the time he submitted the warrant application and affidavit. Brooks, 285 F.3d at 1104-05. The officer began the affidavit by stating, “I, [officer], being duly sworn depose[] and state[] as follows”, and the line preceding his signature read, “‘I have read this affidavit and the facts herein are true to the best of my knowledge.’” Id. at 1104. At the suppression hearing, the officer testified that he did not recall “the notary having him raise his right hand and solemnly swear ‘to tell the truth and nothing but the truth.’” Id. Accordingly, the defendant appealed his conviction, alleging the warrant upon which his arrest was predicated violated the oath and affirmation requirement of the Fourth Amendment. Id. On appeal, the Eighth Circuit affirmed and specifically stated:

We reject [the defendant's] contention that the district court had no basis for concluding that [the officer] was under oath when he signed the warrant application and the supporting affidavit…. The language that [the officer] used in the documents, especially the repeated recitations that he was ‘duly sworn,’ quite obviously reflects his intention to be under oath. His conduct was also consistent with that intention… we conclude that there was sufficient evidence to support the district court’s finding that [the officer] intended to be under oath.

Almost all of the apposite cases indicate that this is the relevant inquiry because a person who manifests an intention to be under oath is in fact under oath…

We also observe that [the officer's] evident state of mind when he signed the affidavit and application for a warrant ensured that the purpose of the [F]ourth [A]mendment’s ‘Oath or affirmation’ requirement was fulfilled. An oath or affirmation ‘is designed to ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words. The theory is that those who have been impressed with the moral, religious or legal significance of formally undertaking to tell the truth are more likely to do so than those who have not made such an undertaking or been so impressed.’ We believe that the circumstances that caused [the officer] to believe that he was signing under oath would also have impressed upon him the ‘importance of his words.’

Id. at 1105-06 (internal citations omitted) (emphasis added); see also United States v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 2004) (“The question whether a statement is made under oath or affirmation turns on whether the declarant expressed the fact that he or she is impressed with the solemnity and importance of his or her words and of the promise to be truthful, in moral, religious, or legal terms.”); United States v. Mensah, 737 F.3d 789, 807 (1st Cir. 2013) (same, quoting Vargas).

In this case, the warrant application, similar to the warrant application in Brooks, begins: “BEFORE ME… Detective Steven Erdey… WHO, after being duly sworn by me, did depose and say…” and concludes it was “[s]worn and subscribed before me, this 14 day of February, 2016…” (Gov. Ex. 3; Def. Ex. A.) Detective Erdey’s signature is found at the end of the affidavit. (Gov. Ex. 3; Def. Ex. A.) Thus, it is evident that Detective Erdey was “impressed with the solemnity and importance of his [ ] words and of the promise to be truthful, in … legal terms.” See Bueno-Vargas, 383 F.3d at 1110. From Detective Erdey’s testimony, it is clear that in his mind that an electronic search warrant carries with it the same weight and imposes the same responsibilities upon the affiant officer that a paper warrant application. (See Doc. 53 at 25-26.) Moreover, unlike in Brooks, here, the magistrate judge did, in fact, swear Detective Erdey in over the telephone. (Doc. 46 at 28.) Accordingly, all of the constitutional safeguards with which Defendant takes issue have been met in this case, and Defendant’s assertions to the [*20] contrary are without merit.

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