Unsigned search warrant was void, although judge signed application finding probable cause, and GFE did not save it

The District of Montana has held that a judge’s oversight in not signing a search warrant in a child porn case, although the judge signed the application for the warrant made before the judge, voided the warrant. Also, the good faith exception could not save the search for an unsigned search warrant. United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007):

Judge Erickson may very well have intended to sign the search warrant at issue in this case. Nevertheless, the fact remains the warrant was not signed and there was no ten-day limit posted on its face. This Court is unwilling to accept the potential repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by the government. If a reviewing court can speculate about what a magistrate intended to do, what prevents it from surmising what a magistrate would have done? Why not permit officers to come before this Court after a search has been conducted to seek admission of seized evidence on the ground that if a warrant had been presented to a magistrate before the search, the magistrate would have issued the warrant? Absent an exception, the Fourth Amendment requires a probable cause determination to be made and issued by a magistrate before officers invade a person’s privacy. If the right to privacy is too precious to entrust to the discretion of officers who detect crime, it is similarly too precious to entrust to after-the-fact conjecture about a magistrate’s intentions. McDonald, 335 U.S. at 455-56; see also Robinson, CR 04-32-BU-DWM, 358 F. Supp. 2d 975 at 10. Because the warrant in this case did not provide any indication that it was officially authorized, the search of Defendants’ residence was warrantless in violation of the Fourth Amendment.

. . .

Even if the search of Defendants’ residence was not warrantless, the Leon good faith exception does not apply. An officer’s reliance on an invalid warrant (as opposed to no warrant at all) must be objectively reasonable before the government can claim the benefit of the good faith exception. Reliance on an unsigned warrant is not objectively reasonable. Groh is again instructive in this regard. After determining the warrant in Groh, which completely failed to describe the items to be seized, was unconstitutional, the Court concluded the officer’s reliance on the warrant was not objectively reasonable. 540 U.S. at 563-65. The Court observed “even a cursory reading of the warrant in this case–perhaps just a simple glance–would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.” Id. at 564. The Court refused to apply the Leon good faith exception under such circumstances. Id. at 565 (noting the exception does not apply when a warrant is “so facially deficient … that the executing officers cannot reasonably presume it to be valid”). The Court also rejected the officer’s argument, based on Sheppard, that he was immune from liability because any constitutional error was committed by the magistrate. The Court reasoned, the warrant in Groh was so patently defective, it was unreasonable for the officer to rely on it. Id. at 561 n.4. In so holding, the Court acknowledged officers executing a search warrant have a duty to “make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct.” Id. at 563 n.6.

Massachusetts courthouse entry search was valid, and it was treated as an administrative search. The fact he could not leave the courthouse to avoid the search did not void it. Commonwealth v. Roland R., 448 Mass. 278, 860 N.E.2d 659 (January 30, 2007).

Declining to find presumptive exigent circumstances in the need for a blood draw in an alcohol related automobile death, the Utah Supreme Court still finds exigent circumstances under the totality of the circumstances presented. State v. Rodriguez, 2007 UT 15, 156 P.3d 771, 570 Utah Adv. Rep. 55 (2007), rev’g 2004 UT App 198, 501 Utah Adv. Rep. 8, 93 P.3d 854 (2004).*