Amended July 5, 2017 State of Iowa v. Maurice D. Angel and Kemia B. McDowell

• Court: Supreme Court of Iowa
• Decided: April 21, 2017
• Docket: 15–1830
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 15–1830

Filed April 21, 2017

Amended July 5, 2017

STATE OF IOWA,

Appellant,

vs.

MAURICE D. ANGEL and KEMIA B. McDOWELL,

Appellees.

Appeal from the Iowa District Court for Scott County, Marlita A.

Greve, Judge.

The State appeals the district court’s grant of defendants’ motions

to suppress. REVERSED AND REMANDED FOR FURTHER

PROCEEDINGS.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, Michael Walton, County Attorney, and Kelly G.

Cunningham, Assistant County Attorney, for appellant.

Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellee

Maurice D. Angel.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellee Kemia B. McDowell. 2

MANSFIELD, Justice.

A detective prepared a search warrant application, brought the

application before a judicial officer, and without signing the application

orally swore that it was true and correct in the presence of the judicial

officer. The judicial officer approved and signed the warrant. Four days

later, the warrant was executed.

The question now presented is whether a warrant issued under

these circumstances violates Iowa Code section 808.3. We conclude that

it does not, because section 808.3 permits the warrant applicant to

swear to the truth of the warrant application in the presence of the

judicial officer even if, inadvertently, the applicant fails to sign it.

For these reasons, we reverse the granting of the defendants’

motions to suppress and remand for further proceedings.

I. Background Facts and Proceedings.

In March 2015, Deputy Dan Furlong and fellow agents used a

confidential source to make two crack cocaine purchases from Maurice

Angel. This confidential informant had been known to Furlong and his

fellow agents for three years, had provided reliable information in the

past, and had not previously given false information. During those buys,

which were visually recorded, Furlong and the other agents saw Angel

driving a silver 2002 Chevrolet Tahoe. After the second buy, Angel

returned to a residence at 1916 E. 38th St. in Davenport. A utilities

check indicated that service was being provided to the residence under

the name Kemia McDowell.

The following month, Deputy Furlong obtained a warrant for a GPS

tracker that was attached to the Tahoe. On April 22, the tracker was

placed on the Tahoe, and for the next two weeks, it confirmed that the

vehicle was parked in front of 1916 E. 38th St. every night except one. 3

On the evening of May 7, Angel was observed by law enforcement

parking the Tahoe and then walking directly into 1916 E. 38th St.

Approximately fifteen minutes later, Angel was seen leaving the residence

and driving to a McDonalds. Angel’s Tahoe pulled into the McDonalds

parking lot next to another vehicle. An individual got out of the other

vehicle, and the other individual opened the front door of Angel’s Tahoe

and received an item. The entire encounter took less than two minutes.

This other individual was a person on probation for possession of a

controlled substance with intent to deliver and failure to affix a drug

stamp.

For the next four hours, Angel’s Tahoe continued to make a series

of brief stops in various parking lots. Furlong suspected some of the

stops were for the purpose of drug sales while others may have been

efforts by Angel to determine if he was being followed. At about 1:15

a.m. on May 8, Angel’s Tahoe returned to 1916 E. 38th St.

Later on May 8, Furlong prepared a warrant application to search

the residence at 1916 E. 38th St. At the subsequent suppression

hearing, Furlong described the process by which he obtained the actual

search warrant:

Q. Detective Furlong, I’m going to hand you what’s been marked Defendant’s Exhibit A. I’d like for you to take an opportunity to look at that and tell me if you recognize Defendant’s Exhibit A. A. Yes, I do. Q. How do you recognize Defendant’s Exhibit A? A. This is the search warrant that I typed for the residence of 1916 East 38th Street in Davenport. .... Q. Detective Furlong, when you prepared this set of documents, what did you do initially before presenting it to a judge? A. Once I finish preparing it, I brought it to you in the County Attorney’s Office to review. Q. And was the document reviewed? A. Yes, it was. 4 Q. Does the State’s signature appear on that document reflecting that review? A. Yes, it does, on page 4. Q. Okay. And is that for the application for search warrant? A. Yes, it is. Q. Once the State had reviewed that document, what was the next step you took? A. The next step that I took was to find a judge to review the search warrant. Q. Okay. Where did you go to do that? A. I walked to the third floor of the Scott County courthouse. Q. Were you able to locate a judge? A. Yes, I did. Q. Who? A. Judge Henry Latham. Q. Where did you locate Judge Latham at? A. I walked up the west stairwell after leaving the County Attorney’s Office and I don’t remember what door that is called. It’s directly to the west behind us. And when I walked into the back hallway of the courtroom for district court, I ran into Judge Latham and I asked him if he had time to look at the search warrant. Q. Was Judge Latham willing to look at this application for search warrant and the attached documents? A. Yes. Q. Now, where did Judge Latham review these documents at? A. It was directly outside of the other judges’ chambers in the hallway. Q. Okay. Outside of Courtroom 4 here? A. Outside the courtroom. Q. When you presented the documents to Judge Latham, what happened initially? A. The search warrant -- the same as every other search warrant. He asked me to raise my right hand and asked me to swear and affirm that everything in here was true and correct to the best of my knowledge. Q. And then did you take that oath? A. Yes, I did. Q. And did you swear and affirm before Judge Latham that the information contained within the application for search warrant was true and correct? A. Yes, I did. Q. Now, having taken the oath, what did you observe Judge Latham do next? A. Judge Latham reviewed the search warrant and he signed the search warrant in all three places. THE COURT: You’re going to have to speak up. You’re dropping off at the end. Judge Latham reviewed it and what? A. Judge Latham reviewed the search warrant and he signed the search warrant in three separate places on the application on the endorsement and on the search warrant. 5 Q. Now, in looking at the signature page for the application to search warrant, is there a signature on there? A. Is my signature on there? Q. Right. A. No, it’s not. Q. Okay. And then can you explain how that came about? A. I -- after he swore me in, I handed him the documents or I handed him the documents first thing, he swore me in, and he reviewed everything and signed it in three places and returned it to me. Q. Was it an oversight then that your signature did not get on the document? A. Yes, it was. Q. Now, does the application for search warrant on the signature page indicate a date that it was presented to Judge Latham? A. May 8, 2015. Q. And in going to the search warrant page, does it set forth a location where Judge Latham can date and sign when he would have approved the search warrant? A. Yes, it does. Q. And what does it set forth? A. It was on May 8, 2015 at 3:22 p.m. Q. Now, to be clear, were you given the oath or affirmation? A. Yes, I was.

Furlong executed the warrant the morning of May 12. At that

time, McDowell was present in the residence and smoking marijuana in

the presence of two young children. During the search, an unlabeled pill

bottle containing 11.6 grams of crack cocaine, 3.5 grams of powder

cocaine, 9 grams of marijuana, a digital scale, a marijuana grinder, and

$703.00 in cash were collected.

Angel and McDowell were charged with possession with intent to

deliver crack cocaine, possession with intent to deliver powder cocaine,

possession with intent to deliver marijuana, conspiracy to commit

possession with intent to deliver a controlled substance, sponsoring a

gathering where controlled substances are unlawfully used, and a drug

tax stamp violation. See Iowa Code § 124.401(1)(b)(3), (1)(c)(2), (1)(d)

(2015); id. § 124.407; id. § 706.1(1); id. § 453B.12(2). McDowell was also

charged with child endangerment. Id. § 726.6(1)(a). 6

Angel and McDowell moved to suppress the results of the search

based on Deputy Furlong’s failure to sign the warrant application and on

lack of probable cause. A hearing on the motions to suppress took place

on October 7. Following the hearing, the district court issued a ruling

granting the motions to suppress. The court concluded that Iowa law

required the warrant application to be signed in the presence of the

issuing judicial officer. The court reasoned, “Detective Furlong’s failure

to sign the search warrant application means it was not ‘supported by

the person’s oath or affirmation’ as required by Iowa Code section 808.3.”

Citing State v. Easter, 241 N.W.2d 885 (Iowa 1976), the district court also

concluded that it could not receive testimony given at a hearing on a

motion to suppress a search warrant. It thus declined to consider

Deputy Furlong’s testimony.

Lastly, the district court took note of a further matter that had

been discussed at the suppression hearing. Although the judge had

signed (1) the warrant, (2) the jurat beneath the space for Deputy

Furlong’s signature on the application, and (3) the endorsement of the

warrant application on May 8, he had failed to do any striking out or

circling on the endorsement form where it said, “The information (is/is

not) found to justify probable cause,” and “I therefore (do/do not) issue

probable cause.” In the district court’s view, this fact also supported

granting the defendants’ motions to suppress. 1

We granted the State’s application for discretionary review and

retained the appeal.

1The district court’s suppression ruling did not reach the defendants’ argument that the warrant application did not provide probable cause to justify the search of the residence. 7

II. Standard of Review.

We review challenges to warrant applications based on statutory

requirements for corrections of errors at law. State v. Davis, 679 N.W.2d

651, 656 (Iowa 2004); State v. Day, 528 N.W.2d 100, 102 (Iowa 1995).

III. Analysis.

The question we have to answer is one of statutory interpretation:

Did the warrant comply with Iowa Code section 808.3? That section

provides,

A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person’s oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist. The application shall describe the person, place, or thing to be searched and the property to be seized with sufficient specificity to enable an independent reasonable person with reasonable effort to ascertain and identify the person, place, or thing. If the magistrate issues the search warrant, the magistrate shall endorse on the application the name and address of all persons upon whose sworn testimony the magistrate relied to issue the warrant together with the abstract of each witness’ testimony, or the witness’ affidavit. However, if the grounds for issuance are supplied by an informant, the magistrate shall identify only the peace officer to whom the information was given. The application or sworn testimony supplied in support of the application must establish the credibility of the informant or the credibility of the information given by the informant. The magistrate may in the magistrate’s discretion require that a witness upon whom the applicant relies for information appear personally and be examined concerning the information.

Iowa Code § 808.3.

We believe the warrant complied with the statute. The application

was “supported by the person’s [i.e., Deputy Furlong’s] oath or

affirmation.” Id. The statute does not state that the oath or affirmation

itself must be in writing. To the contrary, the statute requires a “written 8

application,” while separately requiring that the written application be

“supported by the person’s oath or affirmation.” Id. Both prerequisites

were met here. The adjective “written” modifies “application,” not “oath

or affirmation.”

Iowa Code section 808.3 contemplates that the magistrate may rely

on “sworn testimony.” Id. It is of course true that the magistrate must

make an abstract of any oral testimony that he or she receives. In State

v. Liesche, we recognized,

[I]t was the intent of the legislature . . . to require the sufficiency of probable cause for issuance of a search warrant to be tested entirely by the recitals in affidavits and the magistrate’s abstracts of oral testimony endorsed on the application. No other evidence bearing on this issue should be received in a suppression hearing. All essential facts bearing on the existence of probable cause must either be included in an affidavit or affidavits presented to the issuing officer or in the issuing officer’s abstract or abstracts of sworn oral testimony. The search warrant must stand or fall on the facts shown in that manner.

228 N.W.2d 44, 48 (Iowa 1975).

But Liesche stands only for what it says, namely, that the

“essential facts bearing on the existence of probable cause” must appear

either in the warrant application or in the abstract of testimony. Id. Nothing in Liesche says that the fact that an oath or affirmation was

given cannot be proved up later.

Our decision in State v. Harris, 436 N.W.2d 364 (Iowa 1989), offers

guidance for the present case. In Harris, a police officer sought a search

warrant based entirely on the hearsay statements of a confidential

informant. Id. at 369. Because the magistrate was “less than satisfied

with these hearsay averments, he asked that the informant be brought

before him for questioning under oath.” Id. After questioning the

informant under oath, the magistrate issued the warrant, merely noting 9

the informant’s name on the warrant application as one of the “persons

upon whose sworn testimony the magistrate has relied to issue a

warrant.” Id.

On appeal, the defendant argued that the search results should

have been suppressed because there was no record or abstract of the

informant’s testimony, which had been necessary to establish probable

cause. Id. We held otherwise, explaining as follows:

The defendant contends that in reviewing the probable cause finding we may not consider any of the circumstances involving the informant’s personal appearance before the magistrate. Consideration of such evidence is precluded, he asserts, by our decision in State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975), requiring that all evidence relied on in issuing a search warrant must be shown on the search warrant application or abstracted by the magistrate. We do not find that Liesche defeats the analysis contained in the preceding paragraph.

The Liesche doctrine only precludes the supplying of new facts at a suppression hearing which were not abstracted by the magistrate or contained in the affidavits supporting the warrant application. In the present case, all of the facts relied upon by the magistrate were in the affidavit supplied with the warrant application. The act of listing the informant as an additional witness indicated quite clearly, we believe, that the informant had sworn to the truth of the statements attributed to him in [the officer’s] affidavit. The additional testimony taken from the magistrate at the suppression hearing only served to corroborate that which was already to be inferred from the record. Given these circumstances, we conclude that this procedure did not violate the Liesche restrictions.

Id. at 370–71. 2 Hence, we decided in Harris that so long as the facts themselves

were found in the written warrant application, it was proper to “infer[]

2Easter, a pre-Liesche decision cited by the district court, likewise stands only for the proposition that the basis for probable cause must be set forth on “facts recited in the affidavits and the abstracts of oral testimony endorsed on the application.” See 241 N.W.2d at 886. 10

from the record” that the informant had sworn to those facts. Id. If we

applied Harris here, we could infer from the record—even without the

suppression hearing testimony—that Deputy Furlong swore to the facts

contained in the warrant application. The judge’s signature on the jurat

immediately following the space for Deputy Furlong’s signature allows

that inference. Regardless, Deputy Furlong’s testimony eliminates any

doubt.

The court below expressed concern that if it considered Furlong’s

testimony, it would also have to receive testimony (if requested) from the

judge who issued the warrant. Yet Harris demonstrates there is nothing

necessarily amiss about such testimony. The magistrate testified in

Harris, and we voiced no concern, while noting that the testimony “only

served to corroborate that which was already to be inferred from the

record.” Id. We allow magistrates to testify at suppression hearings in

other contexts, for example, when a claim is made that the officer

omitted material information from the warrant application. See State v.

McPhillips, 580 N.W.2d 748, 751 (Iowa 1998); see also State v. Aldape,

307 N.W.2d 32, 36–37 (Iowa 1981) (relying on magistrate testimony in

overruling a motion to suppress and concluding that the defendant’s

subsequent statements were voluntary).

Of course, the better practice would be to avoid the need for taking

testimony from either the applicant or the issuing magistrate. This can

be done by ensuring that the applicant signs the application in the

magistrate’s presence. Here that did not occur due to an oversight.

However, the issuance of the warrant still complied with Iowa Code

section 808.3.

Although the question here involves interpretation of an Iowa

statute, our decision today appears to be consistent with the prevailing 11

view in other jurisdictions. One guidepost is the LaFave treatise on

search and seizure law. See 2 Wayne R. LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 4.3(e), at 658 (5th ed. 2012). Our

court frequently cites this treatise. 3

LaFave states,

[A] written affidavit is not per se defective because it contains no signature or because it is shown that the signature was affixed subsequent to the search; in such instances it is still open to the prosecution to show by testimony that the affiant had taken an oath.

Id. at 661 (emphasis added). LaFave then goes on to cite decisions from

Florida, Louisiana, Maryland, Massachusetts, Michigan, and Texas in

support of this statement. Id. at 661–62 n.64. 4 Still other states, not

cited in the LaFave treatise, have similarly held. 5

3See, e.g., State v. Lindsey, 881 N.W.2d 411, 424 n.4 (Iowa 2016); State v. Gaskins, 866 N.W.2d 1, 36–37 (Iowa 2015) (Appel, J., concurring specially); State v. Kern, 831 N.W.2d 149, 168–70 (Iowa 2013); State v. Baldon, 829 N.W.2d 785, 797–99 (Iowa 2013); State v. Breuer, 808 N.W.2d 195, 199 (Iowa 2012). 4See Moreno-Gonzalez v. State, 67 So. 3d 1020, 1027 (Fla. 2011); State v. Roubion, 378 So. 2d 411, 413–14 (La. 1979); Valdez v. State, 476 A.2d 1162, 1166–67 (Md. 1984); Commonwealth v. Young, 383 N.E.2d 515, 517 (Mass. App. Ct. 1978); People v. Mitchell, 408 N.W.2d 798, 801 (Mich. 1987); Smith v. State, 207 S.W.3d 787, 793–94 (Tex. Crim. App. 2006). 5See Milne v. State, 607 P.2d 360, 362 (Alaska 1980) (upholding the validity of a warrant based on testimony from the magistrate and the officer at the suppression hearing “that the witnesses were sworn before they testified”); State v. Colon, 644 A.2d 877, 882 (Conn. 1994) (“[A]lthough probable cause must be determined from the four corners of the warrant, we are not confined to the four corners of the warrant in determining whether the affidavit in support of probable cause has been validly executed.”); People v. Vera, 913 N.E.2d 86, 90 (Ill. App. Ct. 2009) (“Although the best practice would be to sign the complaint, the facts here show that the defect was only technical and therefore insufficient to invalidate the warrant.”); State v. Nunn, 783 P.2d 26, 26–27 (Or. Ct. App. 1989) (holding that a court may consider extrinsic evidence in determining whether the oath or affirmation requirement of the Oregon Constitution had been met); State v. Keith, 978 S.W.2d 861, 869–70 (Tenn. 1998) (“[A] majority of other state courts considering whether a search warrant is void based upon an affidavit which contains an incomplete or defective jurat . . . allow extrinsic evidence to prove that the affidavit was properly sworn.”). 12

LaFave does acknowledge that “[i]n some jurisdictions, the

applicable statutes or court rules may be more strict.” Id. at 662 n.64.

His list of stricter jurisdictions does not include Iowa. See id. 6

“There is a preference for warrants and we construe them in a

commonsense manner, resolving doubtful cases in favor of their validity.”

State v. Sykes, 412 N.W.2d 578, 581 (Iowa 1987). Thus, we do not adopt

the view that the warrant was invalid because the issuing judge, despite

signing the warrant, the application endorsement, and the jurat to the

application, did not strike out the words “is not” from two sentences in

the endorsement. Based on the documentation before us, no doubt

exists that the judge found probable cause to issue the warrant and

approved the warrant. See id. at 581–82 (finding that the magistrate’s

signature at the bottom of an instrument where the applicant attested to

the reason for an informant’s reliability was sufficient to allow the

conclusion that the magistrate had found the informant reliable for the

same reason). Signing the warrant was the essential act under Iowa

Code section 808.4, and that occurred. 7

6LaFave cites to a case from Georgia and a case from Pennsylvania for this proposition. See State v. Barnett, 220 S.E.2d 730, 731–32 (Ga. Ct. App. 1975) (holding that the application had to be signed because Georgia law requires a “written complaint,” which it equated to an “affidavit”); Commonwealth v. Williams, 352 A.2d 67, 68 n.2 (Penn. Super. Ct. 1975) (noting that an officer’s testimony at a suppression hearing “that he was in fact properly sworn . . . is of no consequence in light of Pa. R. Crim. P., Rule 2003(b)”). But see State v. Herring, 692 S.E.2d 490, 496 (S.C. 2009) (“[T]he language does not state an affidavit must be sworn in person. It only requires the affidavit be sworn.”). 7Iowa Code section 808.4 provides, Upon a finding of probable cause for grounds to issue a search warrant, the magistrate shall issue a warrant, signed by the magistrate with the magistrate’s name of office, directed to any peace officer, commanding that peace officer forthwith to search the named person, place, or thing within the state for the property specified, and to bring any property seized before the magistrate. 13

IV. Conclusion.

For these reasons, we reverse the district court’s granting of the

motions to suppress and remand for further proceedings consistent with

this opinion. We do not address the question whether probable cause

existed for issuance of the search warrant and leave that for the district

court’s determination on remand.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except Appel, Wiggins, and Hecht, JJ., who

dissent.

____________________________________ State v. Beckett, 532 N.W.2d 751 (Iowa 1995), is not a “check the box” case and is not on point. At that time, state law required the magistrate to specify reasons for finding a confidential informant credible. See id. at 754. The magistrate provided no reasons, instead putting a line through this part of the form. Id. at 753. We held this did not substantially comply with the statute. Id. at 754. By contrast, the present case does not involve a judicial officer’s failure to give reasons as required by law. Instead, there was at most a scrivener error in failing to strike out a few words. The judge’s signatures on the warrant, the application endorsement, and the jurat all signify that the judge found probable cause for issuance of the warrant. Sykes, which Beckett discussed and distinguished, see id., is a far more relevant precedent. 14

#15–1830, State v. Angel

APPEL, Justice (dissenting).

I respectfully dissent.

I would find that the search warrant in this case was not validly

executed because the search warrant was not supported by an oath in

writing as obviously required by Iowa Code section 808.3 (2015). The

majority’s effort to feather the requirement that the oath be in writing is

unconvincing and reflects a troublesome lack of seriousness about

procedural regulatory in search and seizure law.

Further, I would also find that the search warrant is invalid

because of the failure of the district court to make a finding of probable

cause. We rely upon the district court to exercise appropriate judicial

oversight of the search and seizure process. We should not be left

guessing as to whether such oversight has, in fact, been appropriately

exercised.

The issuing of a search warrant—which, among other things, may

authorize a home invasion by authorities—is among the most delicate

and sensitive legal process known under our constitutional system. The

process of issuing a valid search warrant is not a bureaucratic bother in

which a lackadaisical, close-enough attitude toward legal requirements is

good enough. Because of the gravity of the individual rights at stake and

the central role of the search warrant process in protecting citizens from

unwarranted intrusions by government, our review of the warrant

process must be highly detailed and demanding.

In this case, the district court reviewing the search warrant

process performed its function admirably when it held that the search

was invalid on both grounds. This court, however, falls well short of the

mark by endorsing a sloppy, poorly executed search warrant process. 15

Once again, we will be required to vigorously engage in damage control to

limit the harm in future cases and to prevent search and seizure law

from being substantially compromised by relaxed standards designed to

excuse or avoid legal requirements that protect our citizens.

I. Introduction.

The application for the search warrant in this case begins, “Being

duly sworn, I, the undersigned, say that at the place (and on the

person(s) and in the vehicle(s)) described as follows.” The application

describes the house, Maurice Angel’s car, and the items to be seized.

Below the concluding paragraph, there is a signature space provided

labeled “Detective Dan Furlong, Affiant.” Detective Furlong did not sign,

and the space is blank. Below this, the application reads “Subscribed

and sworn to before me on May 8th 2015.” The district court judge

signed in the space provided for the magistrate or judge’s signature.

Below this, the application reads “WHEREFORE, the undersigned asks

that a Search Warrant be Issued” and the assistant Scott County

attorney signed in the space provided.

An “Endorsement on Search Warrant Application” was attached to

the warrant application. This document begins, “In issuing the search

warrant, the undersigned relied upon the sworn testimony of the

following person(s) in addition to the statements and information

contained in the Application and any Attachments thereto.” Detective

Furlong’s name and the address of the Scott County sheriff’s office were

typed below.

The “Endorsement on Search Warrant Application” also has a

place for the judge to circle whether or not the judge finds probable

cause. This reads, “The information (is/is not) found to justify probable

cause. . . . I therefore (do/do not) issue probable cause.” Nothing was 16

circled or otherwise marked. It was left entirely blank. Below this is a

space for a judicial signature, which the district court judge signed. The

district court judge also signed the search warrant itself.

The search warrant was executed on May 12. Kemia McDowell

was present in the house with her children. Angel and McDowell were

arrested that same day. They were each charged with six counts of

felony drug charges, and McDowell was additionally charged with child

endangerment, an aggravated misdemeanor. Angel and McDowell both

pled not guilty.

Angel then moved to suppress the results of the May 12 search

and an interrogation that followed. Angel argued that the application for

the search warrant was not supported by oath or affirmation because

Detective Furlong did not sign the application as the “Affiant.” Angel

additionally argued that a subsequent interrogation was thus the fruit of

the poisonous tree and so should also be suppressed. McDowell joined

Angel’s motion to suppress and separately moved to suppress the results

of the search as well, arguing that on the merits of the warrant

application probable cause was lacking.

The State resisted the motions and the district court held a hearing

on October 7. Over the defendants’ objections, the district court heard

testimony from Detective Furlong, but did so on a provisional basis

without determining that it would consider the testimony in ruling on the

motion. Detective Furlong testified that the issuing judge gave the

detective the oath and that the detective’s failure to sign on the form was

simply an oversight.

The district court granted Angel’s motion to suppress and

dismissed McDowell’s motion to suppress as moot. Following our

caselaw, the district court stated it would not consider Detective 17

Furlong’s testimony because a court is limited to considering what is

within the four corners of the warrant application. The district court

found that the detective’s failure to sign meant the application was not

supported by the requesting party’s oath or affirmation as required by

Iowa Code section 808.3. The district court also found the lack of an

indication on the search warrant that the issuing judge found probable

cause meant that the search warrant should not have been issued. The

district court declined to consider whether there was probable cause to

support the warrant because the application’s fatal flaws were

dispositive.

II. Failure to Provide a Written Oath as Required by Iowa Code Section 808.3.

A. Introduction. In the next few pages, I outline why the majority

opinion is wrong on the question of whether the oath must be in writing.

I generally canvass the framework of Iowa search and seizure law, which

emphasizes the high importance of search and seizure limitations in

protecting citizens from overreaching government.

I next canvass the twin pillars of our search and seizure law—

namely, the requirement that applications for search warrants be in

writing, and our refusal to accept the so-called good-faith exception to

the warrant requirements. These two principles are bedrock concepts of

search and seizure law in Iowa. They prevent law enforcement from

engaging in post hoc rationalizations of searches and prevent a “close

enough” attitude from invading our search and seizure law and

undermining substantive legal requirements.

I then canvass in some detail the caselaw supporting my view that

the failure to provide a contemporaneous written oath is fatal to the

warrant in this case as correctly found by the district court. 18

B. The Framework of Iowa Search and Seizure Law. Article I,

section 8 of the Iowa Constitution provides,

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment of the United States Constitution provides

search and seizure constitutional protection in nearly identical language.

See State v. Ochoa, 792 N.W.2d 260, 268 (Iowa 2010). Under both

constitutions, the language requires that in order to be valid a warrant

must, at minimum, meet four requirements: (1) it must be based on

probable cause, (2) supported by a sworn affidavit, (3) describe with

particularity the place to be searched, and (4) describe with particularity

the persons or things to be seized. See Groh v. Ramirez, 540 U.S. 551,

557, 124 S. Ct. 1284, 1289 (2004); Levine v. City of Bothell, 904 F. Supp.

2d 1124, 1129 (W.D. Wash. 2012); State v. Short, 851 N.W.2d 474, 500

(Iowa 2014).

In addition to the constitutional requirements, the Iowa legislature

enacted a statutory scheme to govern the process of applying for, issuing,

and executing search warrants. See Iowa Code ch. 808. With respect to

the application of a search warrant, the statute provides,

A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person’s oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist.

Iowa Code § 808.3. Concerning the issuance of a search warrant, the

statute states, 19 Upon a finding of probable cause for grounds to issue a search warrant, the magistrate shall issue a warrant, signed by the magistrate with the magistrate’s name of office, directed to any peace officer, commanding that peace officer forthwith to search the named person, place, or thing within the state for the property specified, and to bring any property seized before the magistrate.

Iowa Code § 808.4. We have held that the “primary purpose of the legislature [was] to

insure that the magistrate should have before him a writing, showing

under oath that there was probable cause for the issuance of the

process,” because at common law or under the Constitution, a search

warrant could be supported by an oral presentation to a magistrate.

Battani v. Grund, 244 Iowa 623, 628, 56 N.W.2d 166, 170 (1952)

(emphasis added); see also State v. Cook, 498 N.W.2d 17, 20 (Minn.

1993) (“The purpose of these procedures is to have a record made

contemporaneously with the authorization of the search warrant that will

show both probable cause for a search and a reasonable need for the

warrant to be issued . . . so that later, if need be, there is a basis for

challenging the warrant that is not dependent solely on after-the-fact

recollections.”).

In the context of showing probable cause, we have said, “Warrants

are favored and search warrant affidavits must be scrutinized in a

commonsense and realistic fashion so that the police officers who draft

them are not discouraged from seeking judicial approval of their acts.”

State v. Seiler, 342 N.W.2d 264, 267 (Iowa 1983) (citations omitted); see

State v. Swaim, 412 N.W.2d 568, 571 (Iowa 1987) (stating that, because

there is a preference for warrants, findings of probable cause should be

resolved in favor of the validity of the warrant in doubtful or marginal

cases). 20

C. Twin Pillars of Iowa Search and Seizure Law.

1. Refusal to consider extrinsic evidence to support warrants.

Under Iowa law, we have repeatedly held that extrinsic evidence to

support a showing of probable cause is not admissible to rehabilitate a

warrant that is defective under Iowa Code chapter 808 or its

predecessors.

In State v. Liesche, we considered a case in which a warrant was

issued on the basis of a witness’s sworn testimony, but the warrant

application did not contain an endorsement showing the name and

address of the witness who gave the testimony, nor an abstract of the

contents of the testimony, as required by Iowa statute. 228 N.W.2d 44,

45 (1975). The application did contain an affidavit of a police officer who

wrote under oath that the officer “has a substantial reason to believe”

that evidence was concealed on the person or in the vehicle of the

defendant. Id. (emphasis added). At the suppression hearing five

months after the warrant was issued, the issuing judge testified that he

did not clearly remember the circumstances under which the warrant

was issued. Id. The judge did, however, recall that the police officer, in

an unrecorded supplement to the officer’s affidavit with no evidence that

the officer was sworn, gave the judge additional evidence—namely that

the officer was looking for a weapon used in an earlier offense and other

additional details. Id.

We held that probable cause was not shown and thus the results

of the search should have been suppressed. Id. at 49. We stated that we

would assume without deciding that the officer was sworn when he gave

the judge the additional evidence. Id. at 46. We explained, however, that

the intent of the legislature in enacting the predecessor to Iowa Code

section 808.3 was “to require the sufficiency of probable cause for 21

issuance of a search warrant to be tested entirely by the recitals in

affidavits and the magistrate’s abstracts of oral testimony endorsed on

the application.” Id. at 48. To hold otherwise, we explained, created “an

intolerable situation in the suppression hearing” in which all parties were

“dependent on the understandably poor memory of the justice of the

peace concerning information he had received more than five months

earlier.” Id. at 47. The court could therefore not consider evidence of

sworn oral testimony supporting probable cause of the warrant. Id. at

48.

Our subsequent cases support the holding in Liesche. See, e.g.,

State v. Thomas, 540 N.W.2d 658, 661–62 (Iowa 1995) (“It is well

established in Iowa jurisprudence that the issuance of a search warrant

[under Iowa Code chapter 808] is to be ‘tested entirely by the recitals in

affidavits and the magistrate’s abstracts of oral testimony endorsed on

the application.’ ” (quoting Liesche, 228 N.W.2d at 48)); State v. Seager,

341 N.W.2d 420, 426 (Iowa 1983) (“[W]e may consider only the

information contained in the foregoing affidavit in determining whether

probable cause was shown for the warrant to issue [under the statute].”);

State v. McManus, 243 N.W.2d 575, 577 (Iowa 1976) (“We must

determine the validity [under the Code] of the search warrant only upon

the facts recited in the affidavits and the abstracts of oral testimony

endorsed on the application; it cannot be rehabilitated or fortified by

later testimony.”); State v. Easter, 241 N.W.2d 885, 886 (Iowa 1976)

(rejecting the consideration of an officer’s testimony at suppression 22

hearing because the evidence did not appear in the endorsement and

affidavits as required by statute). 8

2. Rejection of constitutional and statutory good-faith exception to

warrant requirements. Iowa does not recognize the good-faith exception

to the exclusionary rule in search and seizure cases under article I,

section 8. State v. Cline, 617 N.W.2d 277, 292–93 (Iowa 2000),

abrogated on other grounds in State v. Turner, 630 N.W.2d 601, 606 n.2

(Iowa 2001). According to Cline, we refused to adopt a good-faith

exception to article I, section 8 of the Iowa Constitution because a

violation of the right to be protected from unreasonable searches and

seizures is not mitigated by a police officer’s belief in the lawfulness of

the act. Id. at 292. We held that “the only effective way to ensure that

this right is more than mere words on paper is to exclude illegally

obtained evidence.” Id.

8Most states agree with Iowa that all evidence supporting a warrant must be recorded as part of the warrant application. See, e.g., Hall v. State, 789 S.W.2d 456, 458 (Ark. 1990) (reasoning that a record is required to allow for review of ex parte proceedings and “to minimize the necessity of calling magistrates to prove what can easily be documented”); Orr v. State, 382 So. 2d 860, 861 (Fla. Dist. Ct. App. 1980) (per curiam) (“An affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause for the issuance of the warrant and cannot be supplemented by oral testimony to prove the probable cause.”); State v. Hendrickson, 701 P.2d 1368, 1371 (Mont. 1985) (approving of trial court judge’s refusal to look for probable cause beyond four corners of the affidavit); Commonwealth v. Edmunds, 586 A.2d 887, 891 (Pa. 1991) (“[C]ourts in Pennsylvania shall not consider oral testimony outside the four corners of the written affidavit . . . .”); State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005) (“The probable cause necessary for issuance of a search warrant must be based upon evidence appearing in a written and sworn affidavit.”). See generally 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.3(b), at 643–48 (5th ed. 2012). A minority of states, however, permit some extrinsic evidence to support a warrant. See, e.g., Carter v. State, 405 So. 2d 957, 959–60 (Ala. Crim. App. 1981) (“The failure of the magistrate . . . to reduce to writing oral evidence given by the affiant prior to the issuance of a search warrant will not vitiate an otherwise valid search warrant.”); Cook, 498 N.W.2d at 21–22 (stating that Minnesota allows evidence of sworn but unrecorded oral testimony); State v. McKnight, 352 S.E.2d 471, 472 (S.C. 1987) (“A search warrant affidavit which itself is insufficient to establish probable cause may be supplemented before the magistrate by sworn oral testimony.”). 23

We thus declined to follow the approach of the United States

Supreme Court in United States v. Leon, 468 U.S. 897, 922, 104 S. Ct.

3405, 3420 (1984). Cline, 617 N.W.2d at 292–93. Our ruling in Cline is

consistent with that in a growing number of states. See, e.g., State v.

Marsala, 579 A.2d 58, 68 (Conn. 1990); Gary v. State, 422 S.E.2d 426,

429 (Ga. 1992); Minn. State Patrol Troopers Ass’n v. State, 437 N.W.2d

670, 676 (Minn. Ct. App. 1989); State v. Novembrino, 519 A.2d 820, 857

(N.J. 1987); People v. Bigelow, 488 N.E.2d 451, 455 (N.Y. 1985);

Commonwealth v. Johnson, 86 A.3d 182, 188 (Pa. 2014).

We also have not recognized a good-faith exception to Iowa Code

sections 808.3 and 804.4. Thomas, 540 N.W.2d at 666; State v. Iowa

Dist. Ct., 472 N.W.2d 621, 624 (Iowa 1991). We explained our reasoning

in State v. Beckett, 532 N.W.2d 751, 755 (Iowa 1995). In Beckett, we

stated that “[a]dopting a good faith exception to the statutory

requirement would effectively defeat the purpose of the statute because

failure to comply with the statute would be of no consequence.” Id.

Thus, we held in Beckett that if a warrant is invalid under the statute, a

motion to suppress must be granted. Id.

D. Caselaw on Validity of Warrants Without Contemporaneous

Record of Oath or Affirmation. Although we have generally rejected

extrinsic evidence to support a warrant and have rejected a good-faith

exception to the exclusionary rule, we have not as yet specifically

considered a case under Iowa law concerning the validity of a warrant

when there is no evidence in the four corners of the warrant application

that the police officer requesting the warrant was duly sworn. A number

of other states, however, have considered the question with mixed

results. 24

Courts from a number of jurisdictions have held that a warrant

application that fails to show the affiant was sworn meant that the

evidence from the search should have been suppressed. The Supreme

Court of New Jersey considered a case involving the validity under court

rules of an unrecorded telephonic request for a warrant in State v.

Valencia, 459 A.2d 1149, 1151 (N.J. 1983). In Valencia, a police officer

called a judge and read to the judge an unsworn affidavit and did not

formally affirm the affidavit. Id. at 1151–52. The judge orally authorized

the search. Id. at 1152. After the search, the officer visited the judge,

took a formal oath, swore to the contents of the affidavit, and the judge

signed the written search warrant. Id. New Jersey court rules did not

provide for telephonic warrants, but the state argued that the telephonic

request functionally complied with the court rule on warrants. Id. at

1153. The rule on affidavits required that the application present

evidence through either a written affidavit or through sworn testimony

recorded in a transcript. Id.

The New Jersey Supreme Court held that the search warrant was

invalid. Id. at 1154. The New Jersey court explained that “strict

adherence to the protective rules governing search warrants is an

integral part of the constitutional armory safeguarding citizens from

unreasonable searches and seizures.” Id. at 1153. The overall objective

of the rules on warrants, the court further stated, “is to enhance the

soundness and integrity of the judicial decisional process,” and the

requirement of a written affidavit or recorded sworn testimony is

essential in order to encourage the presentation of trustworthy evidence.

Id. “The failure to meet these several requirements subverts the

reliability of the decisional process; it undermines the proper discharge of

the judiciary’s responsibility and clouds the judge’s role in authorizing 25

the search.” Id. at 1154. The lack of evidence of an oath, among other

problems, could “[u]nder no circumstances . . . be fairly regarded as

‘technical insufficiencies or irregularities.’ ” Id.

An Indiana appellate court considered a case in which a transcript

of a police officer’s oral testimony to obtain a warrant definitively showed

that the officer was not under oath. See State v. Brown, 840 N.E.2d 411,

413 (Ind. Ct. App. 2006). The state conceded the lack of an oath

rendered the warrant defective under Indiana statute, but argued either

the Leon or Indiana’s statutory good-faith exception to the exclusionary

rule should apply. Id. at 414–15.

The Indiana appellate court held that the good-faith exception did

not apply in that case. Id. at 423. The good-faith exception did not

apply, the Indiana appellate court reasoned, because an oath or

affirmation is an “essential prerequisite to obtaining a valid search

warrant.” Id. at 421 (quoting State v. Tye, 636 N.W.2d 473, 477 (Wis.

2001)). A warrant that lacks an oath or affirmation is so deficient on its

face, the court held, that “reliance upon the warrant is unreasonable.”

Id. (quoting Tye, 636 N.W.2d at 480 (Crooks, J., concurring)). An oath is

such an essential part of a warrant because the requirement

is designed to ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words. The theory is that those who have been impressed with the moral, religious or legal significance of formally undertaking to tell the truth are more likely to do so than those who have not made such an undertaking or been so impressed.

Id. at 422 (quoting United States v. Brooks, 285 F.3d 1102, 1105–06 (8th

Cir. 2002)). As such, the requirement of an oath “is no technical or

trivial component of the Warrant Clause of the Fourth Amendment.” Id.

(quoting United States v. Chapman, 954 F.2d 1352, 1370 (7th Cir. 1992)). 26

Disregarding the oath or affirmation requirement would “open wide the

door to the issuance of unlawful warrants.” Id. at 416.

Using similar reasoning, the Supreme Court of Wisconsin held that

a warrant not supported by oath or affirmation as required by the United

States and Wisconsin Constitutions cannot fall within Wisconsin’s good-

faith exception to the exclusionary rule. See Tye, 636 N.W.2d at 479–80

(majority opinion). In Tye, the police officer requesting the warrant failed

to sign and swear to the truth of the affidavit. Id. at 475.

The Wisconsin court rejected the state’s argument that the

requirement of an oath or affirmation is a matter of form, not substance.

Id. at 478. The Wisconsin Supreme Court explained, “An oath or

affirmation protects the target of the search from impermissible state

action by creating liability for perjury or false swearing for those who

abuse the warrant process by giving false or fraudulent information.” Id.

(footnote omitted). The exclusionary rule did not apply, the Wisconsin

Supreme Court concluded, because an affidavit not supported by an oath

or affirmation shows plainly that a judge or magistrate has no business

issuing a warrant. Id. at 479.

The Supreme Court of Alaska considered a motion to suppress

when a warrant stated it was based on sworn testimony of a witness, but

a transcript of such testimony failed to show that the witness was placed

under oath. Milne v. State, 607 P.2d 360, 362 (Alaska 1980). The

issuing magistrate testified the witness was sworn just prior to the

recorded portion of the hearing. Id.

The Alaska Supreme Court held that, while a showing of the

constitutional requirement of an oath was satisfied by the magistrate’s

testimony, a state statutory requirement that oaths must be on the

record was not met. Id. The Alaska Supreme Court announced that it 27

would enforce this requirement prospectively, but would allow the

evidence to be admitted in the instant case. Id. The Alaska Supreme

Court explained, “Our purpose in doing so is to avoid the necessity of

later being forced to speculate whether the oath was in fact given or as to

its sufficiency.” Id.

The Court of Appeals of Georgia held that evidence should have

been suppressed when a warrant was issued on the basis of an affidavit

signed by the issuing judge but not by the requesting police officer, in

violation of Georgia statute. Henry v. State, 626 S.E.2d 511, 511–12 (Ga.

Ct. App. 2006). The Georgia appellate court stated that it was axiomatic

that a “signature of the affiant is necessary to the validity of an affidavit.”

Id. at 512–13 (quoting State v. Barnett, 220 S.E.2d 730, 732 (Ga. Ct. App.

1975)). The signature of the issuing judge on the affidavit did not cure

the lack of the affiant’s signature showing that the affiant was under

oath. Id. at 513.

In Commonwealth v. McAfee, a Pennsylvania superior court held

that an affidavit supporting a warrant was fatally defective under the

Pennsylvania Constitution and a state statute on warrants because the

affidavit supporting the warrant did not include evidence showing that

the requesting officer was properly sworn. 326 A.2d 522, 522–23 (Pa.

Super. Ct. 1974). The McAfee court said that under the Pennsylvania

Constitution and under statute, an oath must be in writing—permitting

later testimony that an oath occurred would “render the constitutionally

provided safeguard meaningless.” Id. at 523; see also Commonwealth v.

Williams, 352 A.2d 67, 68 (Pa. Super. Ct. 1975).

There is contrary authority. A number of states have declined to

hold search warrants defective for lack of oath or affirmation under the

good-faith exception which Iowa has rejected. For example, in federal 28

jurisdictions which necessarily recognize the United States Supreme

Court’s good-faith exception in Leon, good-faith search warrants with

defective oaths or affirmations have been upheld. See, e.g., United States

v. Schubert, 528 F. App’x 613, 618 (7th Cir. 2013); United States v.

Guzman, 507 F.3d 681, 686 (8th Cir. 2007).

A number of state courts have also upheld searches pursuant to

warrants with defective oaths or affirmations. Again, however, the

mechanism employed in these state court cases is often a variant of the

good-faith exception rejected in Iowa.

For instance, a California appellate court considered a case in

which a “Statement of Probable Cause” did not contain the verification or

signature of the police officer requesting the warrant. People v. Leonard,

57 Cal. Rptr. 2d 845, 847 (App. Ct. 1996). An attached affidavit did

contain the officer’s verification and signature, but the affidavit said that

the officer “has probable cause to believe and does believe” in the search

warrant application. Id. The defendant sought to suppress the results of

the search, arguing that the unsworn and unsigned “Statement of

Probable Cause” was the only document containing the factual

information used to support issuing the search warrant, and the sworn

affidavit merely contained the officer’s belief that a warrant should be

issued. Id.

The California court recognized the defect in the oath and

emphasized that “[t]he failure of the affiant to swear to the truth of the

information given to the magistrate . . . cannot be construed as a

‘technical’ defect. It is a defect of substance, not form.” Id. at 848. Yet,

the California court held that the evidence was admissible under

California’s version of the Leon good-faith exception. Id. at 849.

According to the California court, “We emphasize however, that were it 29

not for the Leon exception, we would be compelled to declare the warrant

invalid and the search illegal.” Id.; see also People v. Vera, 913 N.E.2d

86, 90 (Ill. App. Ct. 2009) (relying on Illinois statutory exception similar

to Leon).

While we have emphasized the undesirability of relying at a

suppression hearing upon “the understandably poor memory” of a

magistrate concerning information received many months earlier in

Liesche, 228 N.W.2d at 47–48, other courts have been less committed to

the notion that the validity of a search should be based upon the

contemporaneous record established before the magistrate, see, e.g.,

State v. Nunn, 783 P.2d 26, 26–27 (Or. Ct. App. 1989) (considering

extrinsic evidence in the form of later testimony sufficient to show that

warrant was executed under oath); State v. Keith, 978 S.W.2d 861, 869

(Tenn. 1998) (allowing extrinsic evidence to show that issuing judge

properly swore in affiant); Smith v. State, 207 S.W.3d 787, 792–93 (Tex.

Crim. App. 2006) (considering extrinsic evidence in the form of

postwarrant affidavits from police officer and issuing judge attesting that

the judge personally swore in the officer).

Finally, it is worth noting that we did consider a case involving a defective warrant under Missouri law which bears some passing

resemblance to the instant case. In State v. Davis, an Iowa police officer

was duly sworn and signed an application, which was verified by a

notary public. 679 N.W.2d 651, 654 (Iowa 2004). Under a Missouri

statute, however, a valid warrant must be sworn to and signed by a

Missouri peace officer or a prosecuting attorney. Id. at 655. A Missouri

prosecutor signed the application—but while the application stated that

the prosecutor was duly sworn when he signed, there was no verification 30

and nobody could testify that they observed the prosecutor take the oath.

Id. at 654.

We held that the defect did not rise to the level of a violation of the

Iowa Constitution. Id. at 658. In considering the Missouri statute, we

noted that while we had rejected the good-faith exception to the

exclusionary rule, Missouri courts adopted the good-faith exception. Id.

at 659. We stated, “We see no reason to give greater protection to the

integrity of the Missouri statutes than the Missouri courts do under

similar circumstances.” Id. We therefore held that the evidence was

admissible under Missouri’s good-faith exception to the exclusionary

rule. Id.

E. Application of Iowa Search and Seizure Principles.

1. Rejection of extrinsic evidence to establish oath or affirmation.

The State argues that Iowa Code section 808.3 does not require the oath

or affirmation be in writing on the application, only that the evidence

showing probable cause be in writing. Closely tied to this argument, the

State also argues that we should permit evidence extrinsic to the warrant

application to show that the affiant had taken an oath or affirmation. I

think this is an incorrect reading of the statute. Iowa Code section 808.3 requires “a written application, supported

by the person’s oath or affirmation, which includes facts, information,

and circumstances tending to establish sufficient grounds for granting

the application.” We have held that the warrant statute prohibits a court

at a suppression hearing from considering oral evidence in support of a

warrant because resorting to such oral evidence creates an “intolerable

situation” in which all parties must depend on the issuing judge or

magistrate’s memory as to the contents of the oral evidence, making an

accurate and meaningful review of the search warrant impossible. 31

Liesche, 228 N.W.2d at 47–48; accord Cook, 498 N.W.2d at 20 (holding

that the purpose of Minnesota’s statutory warrant procedures was to

create a contemporaneous record to allow for a basis of challenging the

warrant not dependent on after-the-fact recollections).

The rationale for requiring all evidence of probable cause be within

the four corners of the warrant application applies equally to requiring all

evidence of the affiant’s oath or affirmation being within the four corners

of the warrant application. Contemporaneously recorded evidence is the

best evidence showing that the affiant was duly sworn because it is the

most accurate. See State v. Paschal, 300 N.W.2d 115, 117 (Iowa 1981);

State v. Thornton, 300 N.W.2d 94, 96 (Iowa 1981). After-the-fact

recollections as to whether the affiant was duly sworn must, by

necessity, be less certain due to the passage of time. See 2 David L.

Faigman, et al., Modern Scientific Evidence: The Law and Science of

Expert Testimony § 19:10 (2016–2017 ed.), Westlaw (database updated

Dec. 2016). Additionally, the fact that police officers, judges, and

magistrates are involved with numerous warrant requests must diminish

the recollection of a single such request six months or a year later. See

Liesche, 228 N.W.2d at 45 (issuing judge, five months after issuing

warrant, could not clearly recall the circumstances of issuing the

warrant); Smith, 207 S.W.3d at 789 (involving a judge not recalling

specific warrant, but testifying as to his standard warrant issuing

practice).

Were we to allow testimony regarding whether the affiant was

under oath, we would be forced to allow for the parties to call the issuing

judge or magistrate to testify as to his or her recollections. This is so

because a police officer testifying about the oath or affirmation has a

strong interest in the warrant being upheld. See Paul Benjamin Linton, 32

Unrecorded Oral Testimony in Support of a Search Warrant: Is It

Admissible? Is It Advisable?, 14 Loy. U. Chi. L.J. 57, 66 (1982).

Other states which allow for extrinsic evidence on the oath or

affirmation often hear testimony from the issuing judge or magistrate.

See, e.g., Milne, 607 P.2d at 362; Valdez v. State, 476 A.2d 1162, 1166

(Md. 1984); Valencia, 459 A.2d at 1156 n.2. I believe that judges and

magistrates testifying in suppression hearings blurs the independence

and impartiality of the judiciary. See generally 98 C.J.S. Witnesses § 13,

at 39 (2013) (opining that when it is reasonably possible to avoid, a judge

should not be called as a witness); Timothy E. Travers, Annotation,

Judge as Witness in Cause Not on Trial Before Him, 86 A.L.R.3d 633,

644–46 (1978) (collecting cases where testimony of judges are excluded

because of appearance of impropriety).

It is important to emphasize that the question of whether the

proper oath or affirmation was provided is not a binary yes or no

question. Whether the oath or affirmation is sufficient includes

questions of the content of the oath and questions surrounding the scope

of the oath, such as whether the oath applied to all written submissions,

some written submissions, or any oral submission. See Leonard, 57 Cal.

Rptr. 2d at 848–49. Judicial after-the-fact testimony on these issues is

not likely to be a productive enterprise, and reliance on the testimony of

the officer involved is problematic because the officer will have a strong

incentive to ensure that the search is sustained, thereby defeating the

basic notion that a neutral magistrate has determined that all the

requirements of a valid search warrant have been met.

I find the cases from other jurisdictions offered by the State, and

similar cases in support of overruling the motion to suppress, of little

persuasive value. Of the jurisdictions which hold that evidence is 33

admissible when the application for the warrant does not include

recorded evidence of an oath or affidavit, two states and the federal

courts do so on the basis of the good-faith exception to the exclusionary

rule. See, e.g., Schubert, 528 F. App’x at 618; Guzman, 507 F.3d at 685–

86; Leonard, 57 Cal. Rptr. 2d at 849. Particularly striking, the California

appellate court in Leonard stressed that the lack of proof of an oath was

not a technical defect, nevertheless, the court was compelled to rule the

evidence was admissible under the good-faith exception. 57 Cal. Rptr.

2d at 849.

All other states which hold such evidence admissible do so because

these states generally allow extrinsic evidence in support of warrant

applications. See, e.g., Valdez, 476 A.2d at 1163; State v. Lindsey, 473

N.W.2d 857, 859 (Minn. 1991); Nunn, 783 P.2d at 26–27; Keith, 978

S.W.2d at 869; Smith, 207 S.W.3d at 792. Because we do not allow

extrinsic evidence nor recognize the good-faith exception, the reasoning

supporting the admission of such evidence employed by these cases is

simply not applicable in the Iowa context. Likewise, our holding in Davis

is not relevant to the instant case because the warrant in question was

accused of violating a Missouri statute, and we upheld the search on the

basis of Missouri’s adoption of the good-faith exception to the

exclusionary rule. 679 N.W.2d at 659.

The reasoning employed by the cases holding that such evidence

should be suppressed is more persuasive. These cases stress that the

lack of evidence of an oath or affirmation is not a mere technicality, but a

requirement that goes to the heart of the liberty that the Fourth

Amendment seeks to protect. See Brown, 840 N.E.2d at 421 (holding an

oath is an essential prerequisite to obtain a valid warrant); Valencia, 459

A.2d at 1153–54 (stressing that upholding a warrant on the basis of an 34

unsworn affidavit “subverts the reliability of the decisional process[,] . . .

undermines the proper discharge of the judiciary’s responsibility[,] and

clouds the judge’s role in authorizing the search”); Tye, 636 N.W.2d at

478 (finding that an oath protects citizens from impermissible state

action by imposing perjury liability for individuals who give false

information); see also People v. Dinger, 435 N.E.2d 1348, 1350 (Ill. App.

Ct. 1982) (“The necessity of a sworn statement, or one made under oath

is not a minor defect which does not prejudice the rights of the

accused.”).

I would therefore hold that under Iowa Code section 808.3

extrinsic evidence may not be used to show that the affiant of a warrant

application swore to or affirmed the contents of the application.

2. Review of intrinsic facts to support the warrant. Having

concluded that Iowa Code section 808.3 requires that we may only

consider evidence within the four corners of the warrant application in

determining whether the warrant application satisfies the requirement

that the affiant swore to or affirmed the contents of the application, I

next turn to the question of whether there is other evidence within the

warrant application that is sufficient to show that Detective Furlong

swore to or affirmed the facts contained in the warrant application.

I do not believe that there is sufficient other evidence within the

four corners of the warrant application to cure the lack of Detective

Furlong’s signature. I acknowledge that “magic words” are not required

to show that the affiant swore to or affirmed the contents of the

application, but there must be some approximation of an oath or

affirmation subscribed to by the affiant. See Levine, 904 F. Supp. 2d at

1130. 35

Further, I think the best interpretation of Iowa Code section 808.3

is that the oath or affirmation itself should be in writing signed by the

affiant. By requiring the written application to be in writing and

supported by oath or affirmation, there can be no dispute with respect to

the content of the oath or its scope. In Battani, we emphasized that the

legislative purpose behind Iowa Code section 808.3 was that the

magistrate “should have before him a writing, showing under oath that

there was probable cause.” 244 Iowa at 628, 56 N.W.2d at 170

(emphasis added). From the statutory language and the caselaw, it

seems clear that the writing (1) must show probable cause and (2) must

be under oath or affirmation.

In this case, the issuing magistrate signed a document with a

conclusory recital that the application was “[s]ubscribed and sworn to

before me.” Ordinarily, however, to “subscribe” to a document means to

“write (one’s name) underneath; to put (one’s signature) on a document.”

Subscribe, Black’s Law Dictionary (10th ed. 2014). Of course, Detective

Furlong did not subscribe to the document by signing it. See Henry, 626

S.E.2d at 513 (suppressing evidence when the warrant indicated that the

issuing judge relied upon the sworn affidavit of an officer, but the officer

did not sign the affidavit purported to have been made by him under

oath). The lack of Detective Furlong’s subscription to the warrant

application in this case suggests that the language in the court order is

mere boilerplate. Cf. State v. Thacker, 862 N.W.2d 402, 410 (Iowa 2015)

(holding boilerplate does not reveal judicial reasoning in sentencing

context); State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001) (holding

that an ambiguous boilerplate recital of a waiver of rights in sentencing

was not sufficient evidence of waiver); see also Gorham v. State, 981

S.W.2d 315, 318 (Tex. Ct. App. 1998) (holding preprinted boilerplate 36

recitals of knowing plea of guilt signed by trial judge not sufficient when

records fail to show the truth of the recitals).

This situation is similar to when an affiant has neglected to sign a

document under oath, but a notary public has notarized the document

as having been signed under oath—courts reject that the notary public’s

affirmation suffices to show that the document is valid. See, e.g., New

Millennium Psychological Servs., P.C. v. Unitrin Advantage Ins. Co., 929

N.Y.S.2d 830, 831 (App. Term 2011) (finding a psychologist’s “affidavit”

with no signature attesting that psychologist was duly sworn, but

containing notary public’s stamp and signature attesting to swearing

among other problems, was not a valid affidavit); In re Schlegel’s Will, 116

N.Y.S. 1038, 1038 (Sur. Ct. 1909) (rejecting a will that was not

appropriately signed by testator, but was signed and notarized by

notary); State ex rel. McCurdy v. DeMaioribus, 198 N.E.2d 60, 61 (Ohio

1964) (rejecting realtor’s petition when no qualified person signed the

petition as its “circulator,” but petition was authorized by notary public);

see also State v. Phippen, 244 N.W.2d 574, 575–76 (Iowa 1976) (finding

a criminal information defective when the police officer who signed

complaint indicated he was sworn, but no one signed in the “[s]ubscribed

and sworn to before me” jurat); Miller v. Palo Alto Bd. of Supervisors, 248

Iowa 1132, 1136–37, 84 N.W.2d 38, 40–41 (1957) (holding evidence

insufficient to prove valid oath when jurat was blank and sheriff did not

testify he administered oath to commissioners).

I note that I do not believe our holding in State v. Walker is

relevant to the case before us. 574 N.W.2d 280 (Iowa 1998). In Walker,

we held that a defendant who has falsely asserted to have served a

subpoena could be prosecuted for perjury on the basis of being under

oath, even though the notary public testified that she had not 37

administered the oath to the defendant. Id. at 281, 286 (finding

substantial evidence such that a jury could conclude the defendant could

have been under oath).

The key difference between this case and Walker is that the

defendant in Walker, despite having never been administered an oath,

signed the proof of service, which the notary public then properly

notarized. Id. at 281. We explained it was the “corporal act” of signing at

the bottom of the proof of service that called the defendant’s attention to

the fact that the defendant was asserting that service had occurred

under penalty of perjury. Id. at 287. Here, there is no evidence on the

face of the warrant application showing any similar corporal act that

could lead us to conclude that Detective Furlong was formally affirming

the contents of the warrant application.

I thus conclude that boilerplate language in the order does not

satisfy the statutory requirements of Iowa Code section 808.3 that the

application be in writing, supported by oath or affirmation.

F. Summary. For the above reasons, I conclude the district court

got it right. The district court properly granted defendants’ motion to

suppress based on the lack of Detective Furlong’s signature or any other

contemporaneous written record showing that the application was

supported by the detective’s oath or affirmation.

III. Failure to Expressly Find Probable Cause.

A. Introduction. The second issue in this case relates to the

failure of the magistrate to check the box on the form to indicate whether

the magistrate found that there was probable cause to support the

search or whether the showing was inadequate. There is no dispute that

the magistrate ultimately signed the application. The boxes in the form,

however, were left blank. 38

B. Caselaw on “Check the Box.” Iowa Code section 808.4

provides that “[u]pon a finding of probable cause for grounds to issue a

search warrant, the magistrate shall issue the warrant.” The search

warrant in this case provided a “check the box” format whereby the

magistrate could find either that the information is or is not found to

justify probable cause. In this case, the boxes went unchecked, and

there was no express finding of probable cause contrary to the plain

command of the statute.

We considered a similar flaw in Beckett, 532 N.W.2d 751. In the

controversial case of Illinois v. Gates, the United States Supreme Court

adopted a “totality of the circumstances” test for determining the

reliability of an informant’s information supporting a warrant. 9 462 U.S.

213, 238–39, 103 S. Ct. 2317, 2332 (1983). In response, the Iowa

legislature enacted a statutory provision to ensure that warrants are

issued only upon reliable information. Beckett, 532 N.W.2d at 754; see

Iowa Code § 808.3. The more rigorous Iowa statutory test, contained in

Iowa Code section 808.3, required the magistrate to make a

determination that the information supplied by an informant appears

credible either because the sworn testimony indicates that the informant has given reliable information on previous occasions or because the

informant or the information provided by the informant appears credible

for reasons specified by the magistrate. Search warrants in Iowa thus

could not be based on inarticulate “totality of the circumstances” tests

when no factor is determinative, everything is relevant, and the ultimate

9Many state courts have declined to follow Gates under state law. See, e.g., State v. Jones, 706 P.2d 317, 322 (Alaska 1985); State v. Cordova, 784 P.2d 30, 31–32 (N.M. 1989); People v. Griminger, 524 N.E.2d 409, 412 (N.Y. 1988); State v. Jackson, 688 P.2d 136, 143 (Wash. 1984). 39

decision turns more on the predilections of the court rather than the

specific facts of the case. See Beckett, 532 N.W.2d at 754.

In Beckett, the magistrate did not make a specific finding that the

information given by a confidential informant was credible. Id. The state

defended on the ground that the materials attached to the warrant

indicated that the magistrate made an inquiry into the credibility of the

informant and argued that substantial compliance was therefore present.

Id. We rejected the argument, noting that the magistrate failed to do

what the statute directed—namely, provide a reason why the informant

or the information provided appeared credible. Id. While we gave

deference to magistrate determinations, we emphasized that “the issuing

magistrate’s function be performed in a neutral and detached manner,

not serving merely as a rubber stamp for the police.” Id. at 753 (quoting

Swaim, 412 N.W.2d at 571).

The state in Beckett further argued that the court should adopt a

good-faith exception sustaining the search because the officers believed

they searched the residence of the defendant. Id. at 754. We stated that

accepting a good-faith exception when there is a failure to comply with

the statute “would be tantamount to judicial repeal of the statute.” Id. at

755; see Iowa Dist. Ct., 472 N.W.2d at 625.

Just as the statute required a specific finding regarding credibility

in Beckett, the statute here requires the court make a specific finding.

As in Beckett, the district court did not make the required finding.

Following the approach in Swaim, 412 N.W.2d 568, and Iowa District

Court, 472 N.W.2d 621, as embraced in Beckett, we should reject “a

rubber stamp” approach to the warrant process, decline to take an

approach that is “tantamount to judicial repeal of the statute,” and

enforce the statutory requirements as written. 532 N.W.2d at 753, 755. 40

More than a hundred years ago, the United States Supreme Court

reminded us in the search and seizure context that illegitimate and

unconstitutional practices arise from “slight deviations from legal modes

of procedure.” Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524,

535 (1886), overruled on other grounds by Warden v. Hayden, 387 U.S.

294, 87 S. Ct. 1642 (1967). The need to be vigilant is particularly strong

in search and seizure law, where “hydraulic pressures” bear heavily on

the court to water down limitations on police power. See Terry v. Ohio,

392 U.S. 1, 39, 88 S. Ct. 1868, 1889 (1968) (Douglas, J., dissenting).

Waiving strict search and seizure statutory requirements may strike

some as reasonable, but a reasonability standard in the context of search

and seizure law is necessarily based on spongy personal judgments

rather than sound legal doctrines that can be effectively enforced by each

successive generation of lawyers and judges.

Finally, I do not subscribe to the approach to search and seizure

law that views its limitation on state power as an obstacle to effective law

enforcement—needing to be curtailed and whittled down to meet

pragmatic concerns on obtaining convictions. Instead, I subscribe to the

approach of courts and lawyers—and I daresay the founders of the Iowa

Constitution—who regard search and seizure law as an essential

bulwark against arbitrary invasions by the state which often occur in the

name of advancing the asserted public interest. See Johnson v. United

States, 333 U.S. 10, 17, 68 S. Ct. 367, 370–71 (1948); United States v.

Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 229 (1948).

For the above reasons, I respectfully dissent.

Wiggins and Hecht, JJ., join this dissent.