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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)