CA6: No 4A right to recording testimony that supplements affidavit, but there’s got to be a record

The state judge who issued the search warrant was a neutral and detached magistrate under the Fourth Amendment. Whether the magistrate had state law jurisdiction is a kind of circular argument under state law, but the Fourth Amendment only requires “neutral and detached.” “The magistrate in this case thus may well have lacked authority to issue the warrant. But we need not resolve this point because [this] error was [not] ‘obvious’” for plain error review. The magistrate recognized the affidavit was deficient and took testimony to supplement it. [That’s what the magistrate is supposed to do.] There was probable cause on the totality. There is no Fourth Amendment right to recording of testimony in support of a search warrant, but there is a limited remand to make a record on what it was. United States v. Davis, 2020 U.S. App. LEXIS 25889 (6th Cir. Aug. 14, 2020):

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation[.]” U.S. Const. amend. IV. This “text does not require oral testimony to be transcribed or otherwise recorded. Nor did the American legal tradition at the time of the Fourth Amendment’s adoption.” United States v. Patton, 962 F.3d 972, 974 (7th Cir. 2020) (citing William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791, at 754-58 (2009)). We thus have long held that an affiant may supplement an inadequate affidavit with factual allegations “presented to the magistrate through sworn oral testimony.” Hang Le-Thy Tran, 433 F.3d at 482 (citing United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992)).

The government asserts that this process occurred here: The magistrate “recognized that [the warrant] was deficient and took additional oral information” before issuing it. Arg. 23:10-28. Detective Sivert’s trial testimony, moreover, showed that he undertook significant efforts to connect Davis to the residence at 1832 Garden Avenue before seeking the warrant. He had learned that Davis lived at this location through interviews with Karaplis and Stock and had driven to the location and viewed a car registered to Davis parked there. As the district court noted, this evidence would establish the required nexus between Davis and the location. See Hang Le-Thy Tran, 433 F.3d at 482; cf. United States v. Feagan, 472 F. App’x 382, 394 (6th Cir. 2012); United States v. Williams, 544 F.3d 683, 688 (6th Cir. 2008). Yet the district court relied on statements in the government’s brief for these facts, not statements in evidence. No evidence tells us whether Sivert conveyed these facts under oath to the magistrate before the magistrate issued the warrant, as the government claims. Cf. Patton, 962 F.3d at 973-74. The government had planned to introduce evidence detailing this testimony, but the district court opted to resolve the motion without a hearing. So we lack factual findings from the district court on what Sivert told the magistrate.

As we have done in similar circumstances, we will order a remand “for the limited purpose” of conducting an evidentiary hearing on this probable-cause question. See United States v. Beals, 698 F.3d 248, 268 (6th Cir. 2012); 28 U.S.C. § 2106. Either party may then appeal, as appropriate, from the district court’s resolution. Beals, 698 F.3d at 268; 18 U.S.C. § 3731; 28 U.S.C. § 1291.

We reject most of Davis’s claims on the merits. But we issue a limited remand for further proceedings consistent with this opinion on his Fourth Amendment claim.