IN: An electronic signature on an e-warrant satisfies the oath or affirmation requirement

The officer’s electronic signature on an electronic search warrant application satisfies the search warrant statute and the oath and affirmation requirement. Abd v. State, 2019 Ind. App. LEXIS 125 (Mar. 19, 2019):

P19 Here, Detective Kepler submitted a search warrant packet containing the ESWSF, his probable cause affidavit, and the five proposed search warrants. In the ESWSF, Detective Kepler specified that he was submitting one probable cause affidavit for all five proposed search warrants. At the bottom of the ESWSF completed by Detective Kepler was the pre-printed verification, “I swear (affirm), under penalty of perjury as specified by IC 35-44-2-1, that the foregoing and following representations in this document are true.” (State Exh. 3, Conf. Exh. Vol. I, p. 2) (original in bold). This verification tracked the language of Indiana Code section 35-33-5-2(c), in that it was made under the penalty of perjury and contained a statement on veracity. Detective Kepler attached the ESWSF containing his verification to his probable cause affidavit which bore his electronic signature at its end, as provided for by Indiana Code section 35-33-5-8(h). We conclude that, because the search warrant packet contained an affirmation on veracity under the penalties of perjury and Detective Kepler’s electronic signature, his probable cause affidavit was in substantial compliance with Indiana Code section 35-33-5-2(c).

P20 On appeal, Abd essentially contends that Detective Kepler’s probable cause affidavit was unsworn because his electronic signature did not appear directly under his verification. We disagree. Although, as Abd argues, Detective Kepler could have placed his signature directly adjacent to his verification and did so in other search warrant applications he submitted in the pilot program, the fact that he did not do so here did not render his probable cause affidavit deficient because nothing in the search warrant statute requires that an affiant’s signature appear directly under the verification. See I.C. § 35-33-5-2(c) (requiring that the oath supporting a probable cause affidavit be “substantially in the following form”); see also Adamovich v. State, 529 N.E.2d 346, 348 (Ind. Ct. App. 1988) (finding that the verification requirement was fulfilled where the probable cause affiant’s signature did not directly follow his verification but where he signed each page of the probable cause affidavit). In addition, Detective Kepler’s verification explicitly referred to the “foregoing and the following representations” which included by reference the probable cause affidavit to which he had affixed his electronic signature, and so the verification and the signature were linked by the language of the verification itself. (State Exh. 3, Conf. Exh. Vol. I, p. 2). We do not find that reference incorporating the probable cause affidavit which followed the verification to be vague, as Abd argues on appeal. We also disagree with Abd’s assertion that the form of Detective Kepler’s verification was the result of a cut and paste error. Detective Kepler testified in his deposition that he had copied and pasted the portion of his probable cause affidavit pertaining to cell phone records from another template, but he never testified that he intended to copy and paste something from that template that he mistakenly did not.

P21 Abd also argues that “a pre-printed statement at the very bottom of a form does not have the solemnity required of an oath or affirmation” and that “[a]llowing the centuries-old oath or affirmation requirement to be satisfied by a preprinted, unsigned statement at the bottom of a form would reduce the requirement to an empty formality.” (Appellant’s Br. p. 37). However, Abd ignores the fact that Detective Kepler did affix his electronic signature as specifically provided for by Indiana statute and that there is no requirement in the statute that an affiant personally type his verification before signing it. See I.C. § 35-33-5-2(c). Detective Kepler’s affirmation substantially complied with Indiana Code section 35-33-5-2(c), and so we find no abuse of discretion on the part of the trial court in admitting evidence procured as a result of the execution of the May 21, 2016, search warrants.

Remember: Anything that promotes and furthers the obtaining of search warrants should be fostered by the courts if it is at all reasonable. Otherwise, government actors might resort to warrantless searches because of the difficulty.

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