E.D.Wis.: Attachment of an unsworn police report to a search warrant affidavit can support probable cause

Attachment of an unsworn police report to a search warrant affidavit can support probable cause. United States v. Schubert, 2012 U.S. Dist. LEXIS 49270 (E.D. Wis. April 9, 2012):

In State v. Wegrzyn, [751 S.W. 2d 796 (Mo.App. 1988)] the Missouri Court of Appeals held that a deputy sheriff’s notarized application for warrant which was based entirely on document signed by police officer that was not dated, not verified by oath, and not properly notarized was sufficient. Similarly, in Commonwealth v. Bass, 24 Mass. App. 972, 512 N.E.2d 519 (1987), an affidavit for a search warrant, properly verified, incorporated the contents of attached documents. The attachments were not in affidavit form. They were not sworn to and they contained no jurat. The trial court held that those deficiencies invalidated the warrant. The Massachusetts Appeals Court reversed that holding and upheld the warrant and the search made pursuant to it. The court held that the attached documents were properly incorporated into the affidavit, itself in proper form, and that it was of no moment that the attachments were not sworn to or contained no jurat. See also People v. Campbell, 678 P.2d 1035, 1040 (Colo. App. 1983) (“However, documents attached to and incorporated in an affidavit by reference need not be sworn to separately and may thus fall within the four corners of the affidavit.”).

As a general matter, federal courts, too, have held that attached documents that are properly incorporated into an affidavit can be considered in determining whether probable cause exists and that it is of no moment that the attachments were not sworn to or contained no jurat. See, generally, United States v. McCoy, 781 F.2d 168, 172 (10th Cir. 1985); United States v. Berisford, 750 F.2d 57, 58 (10th Cir. 1984); United States v. One Olivetti Electric 10-Key Adding Machine, 406 F.2d 1167, 1168 (5th Cir. 1969). But in most cases, the attachment is not the sole source of information needed to establish probable cause, or the affiant is the author of or has direct knowledge of the facts set forth in the attachment. Here, there is no showing that Investigator Johnson had any direct knowledge of the facts set forth in the attached report. Yet, it is not uncommon for law enforcement officers to obtain a search warrant based on an affidavit that expressly includes hearsay that is not itself given under oath or affirmation. Police affidavits made in support of search warrant applications generally recount information they obtain from citizen witnesses, other police witnesses, or even unidentified informants. There is no requirement that the affiant have direct knowledge of all of the facts essential to support a finding of probable cause. Nor must the probable cause determination be based only on evidence that would be admissible at trial. Brinegar v. United States, 338 U.S. 160, 173 (1949); see also U.S. v. Ventresca, 380 U.S. 102, 107 (1965) (holding that finding of probable cause may rest upon evidence which is not legally competent in a criminal trial).