Over a dissenting vote, the court of appeals holds that, under the facts of this case, the affidavit in support of the warrant to draw Moeser’s blood was sworn to under oath by the officer and therefore the warrant was not defective.
At the start of the affidavit, the officer, Brown, wrote his name in the blank preceding the phrase “being first duly sworn on oath, deposes and says:” In the affidavit’s second paragraph, Brown stated “I have personal knowledge that the contents of this affidavit are true and that any observations or conclusions of fellow officers referenced in this affidavit are truthful and reliable.” Brown dated and signed the affidavit just above the notary certificate (or jurat) that reads “Subscribed and sworn to before me.” (¶3). But it turns out the notary, Wills, didn’t have Brown explicitly and orally swear or affirm to the truth of the information in the affidavit. (¶7). Moeser argues this absence of an oath or affirmation means the warrant wasn’t supported by a sworn affidavit, as required by § 968.12(2).
This is form over substance, says a majority of the court of appeals:
¶16 An oath or affirmation “is a matter of substance, not form, and it is an essential component of the Fourth Amendment and legal proceedings.” [State v.] Tye, [2001 WI 124,] 248 Wis. 2d 530, ¶19[, 636 N.W.2d 473]. “The purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth.” Id. (citing Kellner v. Christian, 197 Wis. 2d 183, 192, 539 N.W.2d 685 (1995)). ….
¶19 We conclude that, under the facts present here, the search warrant was supported by Brown’s oath or affirmation that the statements in his affidavit were true. …Kellner, 197 Wis. 2d at 191-92, is instructive in determining whether the oath or affirmation requirement was satisfied.
¶20 Kellner addresses the requirement that a written notice of claim be “sworn to” before a claimant may bring an action against a state employee under Wis. Stat. § 893.82(5). Kellner, 197 Wis. 2d at 189. The court determined that “in order for a notice to be properly “sworn to” under Wis. Stat. § 893.82(5), a claimant must make an oath or affirmation as to the truthfulness of the contents of the notice.” Id. at 191. The Kellner court explained that “[t]he essentials of an oath are: (1) a solemn declaration; (2) manifestation of intent to be bound by the statement; (3) signature of the declarer; and (4) acknowledgment by an authorized person that the oath was taken.” Id. at 191-92
¶22 First, Sergeant Brown made a “solemn declaration,” id. at 191, by writing his name on the blank space for “name of Affiant” preceding the statement “being first duly sworn on oath, deposes and says.” Second, he manifested an “intent to be bound by the statement,” id., in several ways: by writing his name before the statement “being first duly sworn on oath, deposes and says,” as just explained; by stating in his affidavit: “I have personal knowledge that the contents of this affidavit are true and that any observations or conclusions of fellow officers referenced in this affidavit are truthful and reliable;” and by signing the affidavit in the presence of a notary public, Wills, alongside Wills’[s] notary jurat indicating that the affidavit’s contents were “[s]ubscribed and sworn to” Wills on the date indicated. Third, the affidavit bears Brown’s signature, which appears near the end of the affidavit. Fourth, the affidavit indicates an “acknowledgement by an authorized person that the oath was taken,” id. at 192, as manifested by Wills’[s] notary jurat appearing below Brown’s signature and stating that the affidavit was “subscribed and sworn to” Wills, along with Wills’[s] notary seal.
The court distinguishes Tye and State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568, on which Moeser relies, as the former involved an affidavit that was not signed or sworn to , and the latter involved a warrant not supported by an affidavit, sworn or unsworn. (¶¶24-27).
While the affidavit here was good enough, the court expresses “strong agreement” with the statement that the “better practice” is for the notary to administer an oral oath or affirmation prior to obtaining the affiant’s signature on the affidavit in support of a search warrant, or, alternatively, for the circuit court judge or commissioner to require the officer to verbally swear to the contents of the affidavit before issuing the warrant. (¶8 n.5, citing State v. Johnson, No. 2019AP1398-CR, unpublished slip op. ¶33 (WI App Sept. 9, 2020)).
A dissenting judge (Kloppenburg) concludes the failure to get the officer to explicitly swear or affirm to the statements in the affidavit is fatal, and says the majority misreads Kellner:
¶47 The making of the oath or an affirmation is an act. Id. at 188-89 (stating that “we agree” that “a notice of claim is ‘sworn to’ only when the claimant makes a formal oath or affirmation as to the truthfulness of the claim”). …[T]he Kellner court explained that “the requirement of an oath is not a mere technicality. In order to constitute a valid oath, there must be in some form an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.” Kellner, 197 Wis. 2d at 192. ….
¶49 Here, where the facts show unequivocally that no oath or affirmation occurred and that the affidavit was not sworn to before the notary, the Kellner requirements were not met. Although, as the majority explains, Brown wrote “his name on the blank space” “preceding the statement ‘being first duly sworn on oath,’” Brown was in fact not “duly sworn on oath,” and certainly not “in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the witness’s duty” to testify truthfully. Wis. Stat. § 906.03(1). As stated above, “[T]he requirement of an oath is not a mere technicality. In order to constitute a valid oath, there must be in some form an unequivocal and present act.” Kellner, 197 Wis. 2d at 192….