M.D.Fla.: Judge’s failure to sign search warrant not fatal

A state judge’s inadvertent failure to sign the search warrant was not fatal to the search. It was apparent after the hearing that the officer appeared before the judge and the judge considered whether there was probable cause. United States v. Martin, 2011 U.S. Dist. LEXIS 17639 (M.D. Fla. February 4, 2011):

Here, the initial question presented by the Defendant is whether Judge Green “issued” the search warrant after she made a probable cause determination, but inadvertently failed to sign the search warrant. A number of lower courts have examined the issue of whether an unsigned search warrant is “issued” within the meaning of the Fourth Amendment with varying results, and this Circuit is silent as to the effect of an unsigned warrant. See e.g., United States v. Evans, 469 F.Supp.2d 893 (D. Mont. 2007) and U.S. v. Jackson, 617 F.Supp.2d 316 (M.D.Pa. 2008). A review of the text of the Fourth Amendment itself reveals that there is no requirement that the issuing authority sign the search warrant. U.S. Const. amend. IV. Further, Rule 41 of the Federal Rules of Criminal Procedure also does not require the issuing judicial authority to sign the search warrant when the search warrant is applied for in person. However, a judicial officer’s signature on a search warrant is the surest and likely best method for indicating that the search warrant was issued upon a finding of probable cause by a neutral and detached authority. But the issuance of a search warrant under the Fourth Amendment is not synonymous with a judicial officer’s signature. See United States v. Hondras, 296 F.3d 601, 602 (7th Cir.2002) (stating that issuance is “not synonymous with signing”). In the absence of a signature, courts have looked at other evidence to determine if a search warrant was issued, to include: “(1) an indication on the warrant of the date before which the search must be conducted, (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority’s initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found.” Jackson, 617 F.Supp.2d at 320-21 (citations omitted).

In this case, the Court is satisfied that there is more than sufficient evidence to establish that the search warrant was issued. First, although the Search Warrant was unsigned, the face of the warrant does reveal a number of other imprimaturs of judicial authority to be included: (1) the Search Warrant was required to be executed and returned “within ten (10) days of the date hereof,” (2) the Search Warrant reflects Judge Green’s handwritten date of May 27, 2010, as the date which started the ten day period for the warrant to be executed and returned, and (3) the Search Warrant indicates based upon Judge Green’s handwritten information that the Search Warrant was authorized by a “Judge of the County/Circuit Court In and for Polk County, Florida.” Gov. Ex. 1 at 23. 8 Additionally, the Application for Search Warrant also exhibits a strong indicia of issuance because it is signed and executed by both Deputy Hill and Judge Green, and it is also dated May 27, 2010. Id. at 22. More notably, the Application for Search Warrant also contains a stamp and the signature of Judge Green’s Judicial Assistant indicating that the warrant had been returned on June 2, 2010, and each page of the Application for Search Warrant packet is imprinted with “Filed Polk County Clerk of Court 2010-09-03 14:33,” indicating that the documents were filed in the ordinary course of the court’s business. Gov. Ex. No. 2. 9 Further, beyond the face of the documents contained in the application for search warrant packet, Judge Green, after reviewing the entire packet in the presence of Deputy Hill, verbally acknowledged to Deputy Hill that she found sufficient probable cause to authorize the requested search of the Defendant’s residence. This fact is magnified by Judge Green’s testimony during the January 19th hearing, and her December 6, 2010 Affidavit (Dkt. No. 38, Att. 2), both in which Judge Green stated in no uncertain terms that although she inadvertently failed to sign the Search Warrant, she did review the entire application for search warrant packet, and did authorize/issue the Search Warrant for the Defendant’s residence.