WI: Failure to swear SW affiant not 4A violation if officer understood it was under oath

The failure to actually ask the affiant officer “do you swear to tell the truth” isn’t constitutionally required for a search warrant affidavit. The officer need only understand that he or she was swearing to the truth of the contents. State v. Moeser, 2022 WI 76, 2022 Wisc. LEXIS 100 (Nov. 23, 2022):

[*P2] Moeser challenges the warrant which compelled him to submit to a blood draw. He argues that the warrant is constitutionally defective because the affiant was not placed under oath or affirmation when he signed the affidavit which accompanied the warrant application. According to Moeser, this omission failed to satisfy the requirement under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution that warrant applications be “supported by oath or affirmation.” As a result, Moeser argues that the circuit court erroneously denied his motion to suppress evidence and that the court of appeals erred in affirming that decision.

 [*P3] We conclude that the affidavit fulfilled the oath or affirmation requirement under the United States and Wisconsin constitutions because “[t]he purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth,” and here the officer was impressed with that obligation. State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473; accord U.S. const. amend. IV; Wis. Const. art. I, § 11. In other words, the constitutional guarantee is satisfied because the facts and circumstances demonstrate that Sergeant Brown executed this affidavit “in a form calculated to awaken [Sergeant Brown’s] conscience and impress [his] mind with [his] duty to [tell the truth].” Wis. Stat. § 906.03(1); accord Tye, 248 Wis. 2d 530, ¶19. The United States and Wisconsin constitutions do not require that any specific language or procedure be employed in the administration of an oath or affirmation. Instead, constitutional requirements, relevant case law, and the Wisconsin Statutes all indicate that the oath or affirmation requirement is an issue of substance, not form. Here, the facts sufficiently demonstrate that the constitutional right to be free from abusive governmental searches is satisfied. Therefore, the circuit court did not err in denying Moeser’s motion to suppress, and the court of appeals is affirmed.

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