State v. Mathews

934 P.2d 931, 129 Idaho 865, 1997 Ida. LEXIS 38

• Court: Idaho Supreme Court
• Decided: March 20, 1997
• Docket: 20154, 21127
• Status: Published

Opinions

Justice SCHROEDER,

dissenting.

This case involves an innocent mistake in the judicial process that caused no harm and an error in judgment by a police officer that caused no harm. The Court has engrafted a condition onto the Idaho Constitution that the framers did not include. The decision runs contrary to substantial authority, departs from a policy expressed in this Court’s own rules and jeopardizes an entire class of warrants that have been authorized by the legislature and recognized as an integral part of the judicial process. The decision imposes the court-created sanction of suppression of truthful evidence, ignoring the roots and justification for that extraordinary remedy. The decision will protect no one from future judicial misconduct, because the magistrate’s error was an oversight as likely to occur after this decision as before. Nobody intends an oversight. They happen regardless of saying they should not. The police officer committed an error in judgment by proceeding without a signed warrant, but the error was correctable under this Court’s rules and was made by the officer with the knowledge that the judge had in fact determined there was probable cause for issuance of a search warrant. An intentional killing falls outside the bounds of any civilized society. An unintentional oversight is part of the human condition suffered by even the most diligent. An error in judgment based upon a correct understanding of the intentions of the judge is also within the bounds of forgivable conduct. The decision in this case misses the balance.

I.

THE SEARCH WARRANT WAS NOT CONSTITUTIONALLY INFIRM, AND THE STATUTORY DEFICIENCY WAS HARMLESS AND COULD BE CORRECTED.

Article I, Section 17 of the Idaho Constitution does not set forth the requirement of a judge’s signature for issuance of a search warrant. Article I, Section 17 requires a showing of probable cause by affidavit particularly describing the place to be searched and the person or thing to be seized. The requirement of a judge’s signature is statutory-

The policy of this Court concerning the corrections of oversights of a clerical nature is set forth in its own rules:

Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.

Idaho Criminal Rule 36.

This is a policy of law that permits the correction of oversights and omissions when no one is harmed. Analysis of the facts and law indicates that this policy should be applied in this case.

The statutes which address search warrants are clear. Idaho Code defines a search warrant as, “an order in writing, in the name of the state of Idaho, signed by a magistrate, judge or justice directed to an officer or officers named therein, or other officer authorized by law to execute search warrants directing the officer to search for and seize property or intangibles.” I.C. § 19-4401 (1987). To issue a warrant a judge must sign the warrant based upon a finding of probable cause. I.C. § 19-4406 (1987). In addition, section 19-4407 provides a form for a warrant which provides a space for a judge’s signature. The lack of a signature in this case is undeniably a deficiency, but not one that should result in suppression.

Despite the statutory definition of a search warrant, the 1994 Legislature enacted statutes permitting the issuance of telephonic warrants. I.C. §§ 19-4404, 4406 (Supp. 1995). Such a legislative pronouncement indicates that a judge’s signature is not the critical element of a search warrant. The critical element is a determination of probable cause. Section 19-4406 of the Idaho Code now permits a judge to verbally authorize a peace officer to sign his or her name to a warrant, which the judge will sign at a time subsequent to the search. Under the present statutory scheme the deficiency that occurred in this case could be cured by a telephone call from the police officer to the issuing judge who would authorize the officer to sign the judge’s name to the warrant. The judge would subsequently sign the warrant and there would be no statutory deficiency. This is a clear indication of state policy that the showing of probable cause is the essential element of protection from an unreasonable search and seizure, not the judge’s signature on the warrant. The judge’s signature on the warrant is a technical requirement that confirms the showing of probable cause. In this case the judge’s signature on the affidavit showing probable cause for the search and the judge’s statement under oath confirm the showing of probable cause. The lack of a signature was an oversight. Suppressing evidence on the basis that the warrant was inadvertently unsigned despite a finding of probable cause, does not vindicate a fundamental state policy. The Court’s determination that the lack of a signature is a constitutional violation, rather than simply a statutory defect casts doubt on the validity of the telephonic warrants since they are not signed by the judge when the search is conducted. The judge subsequently confirms issuance of the warrant, which is exactly what happened in this case.

The Court’s opinion indicates that “[t]he requirement of a signed warrant enables a citizen to know that the search by the officer has in fact been authorized by a magistrate and is not being conducted at the whim or caprice of the officer.” This reasoning for the rule enunciated by the Court does not stand scrutiny, since a search warrant need not even be presented before a search is conducted, State v. Gomez, 101 Idaho 802, 809, 623 P.2d 110, 117 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981), and since mistakes in orders arising from “oversight or omission” may be corrected by the court at any time. I.C.R. 36.

In Gomez, this Court found the following statement from the United States Supreme Court to be applicable to search warrants issued pursuant to I.C.R. 41:

“Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place.”

Gomez, 101 Idaho at 809, 623 P.2d at 117 (quoting Katz v. United States, 389 U.S. 347, 355 n. 16, 88 S.Ct. 507, 513 n. 16, 19 L.Ed.2d 576 (1967)). This Court noted that other courts have concluded that the fact that investigative officers initiated a search without the issued but undelivered warrant in their physical possession did not invalidate the warrant. Gomez, 101 Idaho at 809, 623 P.2d at 117 (citing United States v. Woodring, 444 F.2d 749 (9th Cir.1971); United States v. Cooper, 421 F.Supp. 804 (W.D.Tenn.1976); State v. Johnson, 16 Ohio Misc. 278, 240 N.E.2d 574 (Ct.C.P. 1968)). Since presentation of an issued warrant is not crucial to the validity of a search, the presentation of a warrant which was based on probable cause but lacked a judge’s signature cannot be the basis for invalidating a warrant to protect the citizen. Nothing mandates that a citizen receive notice of judicial review of probable cause prior to a search pursuant to a search warrant.

Other facially defective warrants have been upheld by this Court. State v. Schaffer, 112 Idaho 1024, 1028, 739 P.2d 323, 327 (1987) (The search warrant contained a sufficient description of the property to be searched, even though there was no mailbox and the county road was inaccurate, because the officers could find and did find the residence from the description.); Gomez, 101 Idaho at 810, 623 P.2d at 118 (A non-existent house number did not invalidate a warrant which indicated that the house was “identified with the number 204 posted on the front of the house...”); State v. Carlson, 101 Idaho 598, 618 P.2d 776 (1980) (In light of other descriptions contained in the affidavit and the fact that an incorrectly named road was generally referred to as referred to in the affidavit, affidavit in support of application for search warrant was sufficient even though named street was incorrect.); State v. Lindner, 100 Idaho 37, 41, 592 P.2d 852, 856 (1979) (discrepancy in affidavit for search warrant found to be “an oversight and not intentional” and not a basis for invalidating search warrant). “Search warrants are not deeds or tax notices. They are not subject to technical drafting requirements. They should be interpreted in ‘a commonsense and realistic fashion.’” State v. Holman, 109 Idaho 382, 388, 707 P.2d 493, 499 (Ct.App.1985) (quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).

Numerous other courts have held that a judge’s omission of a signature on a search warrant is not necessarily fatal. The Supreme Court of Arizona upheld a search warrant served without a magistrate’s signature, even though an Arizona statute defined a search warrant as including a magistrate’s signature. Yuma County Attorney v. McGuire, 109 Ariz. 471, 512 P.2d 14 (1973). The court found the judge’s failure to sign the warrant an accident or oversight and stated:

The key element in the issuance of a search warrant is the consideration by a neutral and detached magistrate. The Arizona Legislature recognized this fact when it authorized the use of telephonic search warrants where the warrant is signed by the police officer signing the warrant in the name of the issuing magistrate. [The judge] signed the affidavit in support of the search warrant and intended by his actions to give legal effect to the issuance of the warrant. Judicial consideration was given to the question of the existence of probable cause, probable cause for the issuance of the warrant was found, and the affidavit was signed by the judge. We hold that the inadvertent failure to sign the warrant did not invalidate the warrant.

Yuma County, 512 P.2d at 15-16 (citation omitted). The facts in Yuma County are virtually identical to those in this case.

In other states with a statutory definition of search warrant which includes a judge’s signature, such as I.C. § 19-4401, search warrants missing the signature have likewise been upheld. People v. Superior Court for Los Angeles County, 75 Cal.App.3d 76, 141 Cal.Rptr. 917 (2 Dist.1977). In Commonwealth v. Pellegrini, 405 Mass. 86, 539 N.E.2d 514, cert. denied, 493 U.S. 975, 110 S.Ct. 497, 107 L.Ed.2d 501 (1989), the court held that, “where, as here, there is no dispute that the judge intended to issue the warrant, and the judge intended to issue the warrant, and the judge signed the officer’s affidavit, the failure to sign the warrant ‘is no more than a clerical error.’ ” 539 N.E.2d at 516 (quoting Commonwealth v. Truax, 397 Mass. 174, 490 N.E.2d 425 (1986)).

The Superior Comb of Connecticut has held that the omission of a judge’s signature on a copy of a search warrant served upon a defendant was harmless error. State v. Montagna, 35 Conn.Supp. 225, 405 A.2d 93 (1979). The Montagna court termed the omission “an administrative or clerical error” and stated that, “[a]bsent a substantial showing of prejudice, the omission of the signatures on the copy was minor and does not invalidate an otherwise lawful search.” 405 A.2d at 95. “The defendant’s fourth amendment rights were protected, in that an impartial judicial officer ruled at the outset on the existence of probable cause in the supporting affidavits.” Id.; See State v. Spaulding, 289 Kan. 439, 720 P.2d 1047, 1049 (1986) (The judge’s “failure to sign the warrant was a mere oversight, a technical irregularity.”).

In People v. Blake, 266 Ill.App.3d 232, 203 Ill.Dec. 658, 640 N.E.2d 317 (1994), an executed search warrant did not contain the time, date and issuing judge’s signature. Nonetheless, the court upheld the validity of the warrant and stated:

While we certainly do not mean to disparage the statutory safeguards relating to the conduct of searches, we are not prepared to say that the inadvertent failure to present a faeiaUy complete search warrant at the time of the search necessarily affects substantial rights so as to invaUdate the search, and we cannot find that substantial rights were affected in this case.

203 Ill.Dec. at 663, 640 N.E.2d at 322.

Like the majority’s opinion, other courts have held that the faüure to sign a warrant invalidates the warrant and renders it a nullity. State v. Williams, 57 Ohio St.3d 24, 565 N.E.2d 563, cert. denied, 501 U.S. 1238, 111 S.Ct. 2871, 115 L.Ed.2d 1037 (1991); Kelley v. State, 55 Ala.App. 402, 316 So.2d 233, 234 (Crim.1975) (A search warrant is void “when it shows on its face that it lacks the signature of any magistrate, such being the only authorized officer to put life in the paper.”); State v. Surowiecki, 184 Conn. 95, 440 A.2d 798 (1981); Byrd v. Commonwealth, 261 S.W.2d 437, 438 (Ky.1953); State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495 (1970). Such a strict interpretation of the requirements of a search warrant ignores the fact that no substantive rights of a person are violated when an unsigned search warrant is presented so long as probable cause to search has been determined to exist by a neutral and detached magistrate. When there is no dispute that the judge intended to issue a warrant, and the judge signed the officer’s affidavit, the faUure to sign the warrant is simply a clerical error. Had the oversight not occurred, the search would have taken place just as it did. The lack of a signature changed nothing. There is no prejudice to the defendant. The error, although making the warrant faeiaUy deficient, does not make the search warrant fataUy deficient. The defendant gains an incredible windfaU.

II.

THE POLICIES BEHIND THE EXCLUSIONARY RULE ARE NOT SUFFICIENTLY ADVANCED BY ITS APPLICATION IN THIS CASE TO WARRANT SUPPRESSION OF THE EVIDENCE.

The United States Supreme Court has declared that deterrence of Fourth Amendment violations is clearly the purpose behind the exclusionary rule. Withrow v. Williams, 507 U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). The purpose behind the rule is to deter unreasonable searches, regardless of how probative their fruits. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). “The exclusionary rule operates as a judiciaUy created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect. As with any remedial device, the rule’s appheation has been restricted to those instances where its remedial objectives are thought most efficaciously served.” Arizona v. Evans,, 514 U.S. 1, 11, 115 S.Ct. 1185, 1191, 131 L.Ed.2d 34 (1995) (citation omitted). “Where ‘the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.’” Id. (quoting United States v. Jarvis, 428 U.S. 433, 454, 96 S.Ct. 3021, 3032, 49 L.Ed.2d 1046 (1976)) (emphasis added).

This Court has acknowledged that the “federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior.” State v. Guzman, 122 Idaho 981, 993, 842 P.2d 660, 672 (1992). In Guzman, this Court went on to announce that in Idaho, the exclusionary rule should be applied in order to:

1) provide an effective remedy to persons who have been subjected to an unreasonable government search and/or seizure; 2) deter the police from acting unlawfully in obtaining evidence; 3) encourage thoroughness in the warrant issuing process;

4) avoid having the judiciary commit an additional constitutional violation by considering evidence which has been obtained through illegal means; and 5) preserve judicial integrity.

122 Idaho at 993, 842 P.2d at 672.

The policies behind the exclusionary rule are not advanced sufficiently by applying the rule to this case. 1) The judge has sworn by affidavit that probable cause existed in this ease and was shown prior to the service of the search warrant, so the search was not unreasonable. 2) To the extent that the police officer concealed the fact that he did not possess a signed warrant and misled Ms. Henry by displaying the signed affidavit, there was police misconduct. However, the egregiousness of this conduct is diminished by the fact that the officer had in fact shown probable cause and knew the judge intended that a search take place based upon that showing of probable cause. 3) The omitted signature was an accidental and inadvertent mistake made by a magistrate judge. Inadvertences will occur despite this decision. Such a mistake does not justify the application of the judicially created, and not statutorily or constitutionally mandated, exclusionary rule. 4) No judge, including the judge in this case, intends to allow an unsigned warrant to leave his or her possession after finding probable cause. It is a mistake, not an abuse of power. Under present procedure the police officer could have cured the problem by a telephone call to the judge. There is little deterrent effect in suppressing the evidence in this ease. 5) The draconian result that may flow from this Court’s decision is far more serious than the administrative error made by the judge in this case and the error in judgment by the police officer. The citizen’s rights were protected by a scrutiny of the facts by the judge and the determination of probable cause. Judicial integrity is not preserved by the majority’s opinion; rather it is diminished because the result in this ease cannot be justified to fairminded people. Form has dominated substance.

If there is concern that judges will carelessly allow unsigned search warrants out of their hands following a determination of probable cause, there is a procedural mechanism to address such concerns. The Idaho Judicial Council has disciplinary authority over all judges in the state. If a judge were to persistently make mistakes arising from carelessness or ignorance of the law, remediation could take place through Judicial Council action. There is no indication in this case of anything other than a one-time procedural mistake, but if the occasion should arise, corrective action is available without suppressing the truth. So far as the officer’s conduct is concerned, he misrepresented a fact to Ms. Henry, but that apparently is not the critical element in the Court’s decision. Having determined that the search warrant was invalid, the officer’s state of mind is irrelevant. Even if the officer’s conduct were relevant under the Court’s rationale, the remedy significantly outweighs the wrong.

III.

THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE APPLIES.

This Court should re-think its rejection of the good faith exception to the exclusionary rule. However, even this Court’s eases purporting to reject the good faith exception allow the good faith exception to operate in this situation.

This Court’s rejection of the good faith exception to the exclusionary rule has been specifically limited to those cases in which a warrant’s fatal flaw was the lack of probable cause — the touchstone for determining the reasonableness of a search or seizure. State v. Guzman, 122 Idaho at 993, 842 P.2d at 672 (Regardless whether the goal of police deterrence would be served, the state’s exclusionary rule should be applied in every case where evidence is seized pursuant to a warrant which is not supported by probable cause.) (emphasis supplied); State v. Josephson, 123 Idaho 790, 795, 852 P.2d 1387, 1392 (1993) (rejection of good faith exception to the exclusionary rule applied retroactively to case pending at the time Guzman was decided where probable cause lacking). (emphasis added). But that is not the case presented here. It is undisputed that a good and sufficient showing of probable cause was made for issuance of the warrant.

As previously discussed, this Court outlined the purpose of Idaho’s exclusionary rule in Guzman. 122 Idaho at 993, 842 P.2d at 672. Application of the rule on these facts would not further any of the rule’s stated purposes. Corporal Greene, who was present when the underlying facts were reviewed by the judge, and whose affidavit establishing the requisite probable cause was signed by the judge, was also present when the warrant was issued. Because the existence of probable cause was based on Corporal Greene’s personal knowledge, and because he personally witnessed the issuance of the warrant, there was no reason for him to doubt the warrant’s constitutional validity. Officer Greene may not have acted in good faith in showing Ms. Henry the affidavit which accompanied the search warrant; however, he had no reason to question the validity of the warrant based on his personal observations in court. Moreover, while the goal of encouraging thoroughness in the warrant issuing process is unquestionably a worthy one, it should not be achieved at the expense of equally important goals: preservation of the integrity of the judicial process and respect for law. Application of the exclusionary rule on these facts will denigrate both.

I respectfully dissent from the Court’s opinion.