The failure to sign an affidavit for a search warrant is not fatal to a search warrant if the prosecution can still prove that the affiant was actually sworn. The oath is what is important, not so much the signature. Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. November 22, 2006):
. . . We agree with Vance [v. State, 759 S.W.2d 498 (Tex. App.-San Antonio 1998, pet. ref’d)] and the majority of the out-of-state courts and hold that the failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.
The present situation might usefully be compared to that of self-proved wills. A will may be made self-proved by the affidavits of the testator and his attesting witnesses, as long as the affidavits are signed and certified in accordance with the specific statutory requirements. A self-proved will may be admitted to probate court without the need for testimony of a subscribing witness, but a will is not invalid simply because it does not contain the statutory affidavits. It merely does not qualify as a self-proved will, and the proponent of the will must call one or more of the attesting witnesses to testify.
Although the affiant’s signature on an affidavit serves as an important memorialization of the officer’s act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer’s oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid. That is not to condone carelessness or sloppiness in either police procedure or judicial oversight. Forgetfulness or carelessness in the formalities of an affidavit may well indicate to either the issuing magistrate or the reviewing court that the officer is forgetful or careless in his factual statements as well. Such forgetfulness may affect the credibility of the officer, but that is a matter for magistrates and trial courts. It is sufficient for today to simply conclude that an affiant’s failure to sign his affidavit is not necessarily fatal if it can be proved by other means that he did swear to the facts contained within that affidavit before the magistrate.
The Sixth Circuit held yesterday, on a government appeal from a suppression order by the W.D. Tenn., that the affidavit for the search warrant in this case was truly bare bones, showing no nexus between the drug seizure off of defendant and his house. Even under the deferential standard of review for the good faith exception, the affidavit fails. United States v. McPhearson, 469 F.3d 518 (6th Cir. November 27, 2006):
The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a “bare bones” affidavit. Id. at 748. A bare bones affidavit is one that merely “states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” Weaver, 99 F.3d at 1378.
Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a “substantial basis” for the magistrate’s conclusion of probable cause. Laughton, 409 F.3d at 748-49 (quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49.
The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson’s residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. “We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information provided was not enough to establish probable cause.” Carpenter, 360 F.3d at 596. The minimal nexus required to support an officer’s good faith belief was not present in this case.
The only connection in the affidavit between 228 Shelby Street and drug trafficking was that Jackson police arrested McPhearson at his residence and found crack cocaine in his pocket in a search incident to the arrest. This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause. See Frazier, 423 F.3d at 536-37; Carpenter, 360 F.3d at 595-96; United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994); Savoca, 761 F.2d at 298-99. The application of the good-faith exception in Frazier, Savoca, and Van Shutters depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity that the police were investigating. In Frazier, the defendant was a known drug dealer and drugs had been found at his prior residence. 423 F.3d at 537. In Savoca, the defendants had been identified as the perpetrators of a string of bank robberies in two states. 761 F.2d at 295-98. Similarly, in Van Shutters, the defendant had confessed to perpetrating an auto-theft scheme. 163 F.3d at 336-37. Finally, in Shultz, the court found that the minimal nexus was satisfied by the officer’s reliance on his years of experience as a narcotics investigator and the knowledge he had acquired of drug dealers’ business practices. 14 F.3d at 1098. Each of these additional facts, although not sufficient to establish probable cause, created the minimal nexus between the place to be searched and the evidence sought that would permit application of the good-faith exception. In this case, there are no analogous facts that establish the minimal nexus. The affidavit merely stated that: (1) “Inv. Mathis and Wiser went to 228 Shelby Street and knocked on the door. A black male answered the door and identified himself to be Martedis McPhearson”; (2) “McPhearson was searched prior to being placed in the police car for transport to booking. Investigator Wiser discovered in McPhearson’s right front pocket a clear plastic bag containing . . . [crack cocaine]”; and (3) “E-911 records revealed that 228 Shelby is the residence of Martedis McPhearson.” The affidavit did not allege that McPhearson was involved in drug dealing, that hallmarks of drug dealing had been witnessed at his home, such as heavy traffic to and from the residence, or that the investigating officers’ experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested). Instead, the “evidence in the affidavit connecting the crime to the residence [wa]s ‘so vague as to be conclusory or meaningless.'” Frazier, 423 F.3d at 537 (quoting Carpenter, 360 F.3d at 596). Therefore, we conclude that the district court properly refused to apply the good-faith exception to validate the search because the affidavit was “so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable.” Laughton, 409 F.3d at 748.
Community caretaking function justified officer entering car to check on unconscious driver. Officer could immediately tell that the driver was likely drunk, and he got him out of the car and he could not stand. DUI affirmed. People v. Robinson, 368 Ill. App. 3d 963, 307 Ill.Dec. 232, 859 N.E.2d 232 (5th Dist. November 22, 2006) (released for publication January 5, 2007).*
