A Woman In A Navy Blue Business Suit Signing A Document On A Table In A Side-lit Courtroom

Nov. 29, 2022 – When making an affidavit for a search warrant, a police officer satisfies the oath and affirmation requirements of the U.S. and Wisconsin constitutions as long as the wording of the affidavit impresses upon the officer a sense of obligation to tell the truth, the Wisconsin Supreme Court has ruled.

In State v. Moeser, 2022 WI 76 (Nov. 23, 2022) a five-justice majority held that the oath and affirmation clause does not require any magic words in upholding an affidavit for a search warrant to obtain a blood draw from a drunk driving suspect.

Chief Justice Annette Ziegler wrote the majority opinion, joined by Justices Patience Roggensack, Rebecca Bradley, Bryan Hagedorn, and Jill Karofsky.

Justice Hagedorn wrote a concurring opinion, which Justice Karofsky joined. Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet.

Blood Draw Refusal

Steve Brown, a Portage County Sheriff’s Office deputy, pulled Jeffrey Moeser over on Oct. 14, 2017. Brown suspected that Moeser was operating while intoxicated (OWI).

Jeff M. Brown
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

When Brown ran Moeser’s name, he learned that Moeser had five prior OWI convictions and was subject to a .02% blood alcohol content (BAC) limitation.

Brown administered a preliminary breath test to Moeser; he registered a 0.195%. Brown arrested Moeser and drove him to a hospital in Stevens Point.

Moeser refused to consent to a blood draw, so Brown applied for a search warrant. Brown filled out an affidavit, which was completed by a notary public.

Early Morning Affidavit

In the affidavit’s first paragraph, Brown wrote his name before the following text: “being first duly sworn an oath, deposes and says.”

The next paragraph contained the following sentence: “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 signed the affidavit. Immediately below Brown’s signature appeared the jurat, or certification, which read “Subscribed and sworn to before me.”

A lieutenant notarized the affidavit by signing it and affixing his seal to the affidavit below the jurat. A judicial officer approved the search warrant at the hospital.

Over the Limit

The blood draw revealed that Moeser’s BAC was .220%. The Portage County District Attorney charged Moeser with OWI sixth offense.

Moeser moved to suppress the results of the blood draw. He argued the warrant failed to satisfy the oath or affirmation requirement of the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution.

The Portage County Circuit Court denied the motion to suppress. Moeser appealed, and the Wisconsin Court of Appeals affirmed. Moeser appealed to the Wisconsin Supreme Court.

Substance, Not Form

In her opinion for the majority, Chief Justice Ziegler explained that while the oath and affirmation requirement is essential to a valid search, the terms “oath” and “affirmation” have been broadly interpreted by the courts.

Unlike the oath or affirmation requirement contained in the Fourth Amendment, Ziegler noted, the one contained in Article VI, Section 3 of the U.S. Constitution specifies the wording of the oath, the time for completing the oath, and the persons qualified to administer the oath.

“These examples demonstrate a broad spectrum of how specific an oath requirement could be,” Chief Justice Ziegler wrote.

“Where the founding generation believed that specific words or procedures were required to fulfill an oath requirement, the text said so.”

Support from Case Law

Case law supports that proposition, Ziegler explained. In State v. Tye, 2001 WI 124, 636 N.W.2d 473 (2001), she pointed out, the supreme court held the purpose of the Fourth Amendment’s oath and affirmation requirement “‘is to impress upon the swearing individual an appropriate sense of obligation to tell the truth.’”

“There are no magic requirements or magic words,” Chief Justice Ziegler wrote. “It is a matter of substance, not form.”

Ziegler also looked to case law from federal courts of appeal, other states, and a leading criminal procedure treatise to conclude that the oath and affirmation requirement doesn’t require an oath to be oral, nor does it require the oath taker to raise his or her hand.

“As a result, Wisconsin is in good company in concluding that an oath or affirmation may still be constitutionally compliant absent a prescribed oral script and specific procedure,” Chief Justice Ziegler wrote.

Ziegler also pointed out that Wis. Stat. section 968.12, regarding search warrant affidavits, imposed no specific wording or procedure for the administration of the oath.

Given the context of the Brown’s affidavit, Chief Justice Ziegler wrote, “the words … impressed Sergeant Brown with the duty to tell the truth.”

Concurrence: Case is a Close Call

In his concurrence, Justice Hagedorn (and Justice Karofsky) agreed that Brown’s statements in the affidavit satisfied the Fourth Amendment’s oath and affirmation requirement, “but not by much.”

The dissent, Hagedorn wrote, “offers strong counter-arguments that call the sufficiency of the oath into question … law enforcement should ensure the procedures employed to obtain warrants are clear and consistent.”

Dissent: Affidavit Wasn’t True

In her dissent, Justice A.W. Bradley wrote that “it is undisputed that the first sentence of Sergeant Brown’s affidavit was not true. It says Sergeant Brown was ‘first duly sworn on oath.’ He wasn’t.”

A.W. Bradley, joined by Justice Dallet, argued that the Fourth Amendment required a specific mechanism for swearing an oath or making an affirmation before a judicial officer.

U.S. Supreme Court Chief Justice John Marshall long ago concluded, A.W. Bradley also noted, that the oath and affirmation requirement was “a solemn requirement” – one the majority “attempts to replace … with a malleable mechanism of its own devising.”

“Rather than focusing on the meaning of the words of the warrant clause,” Justice A.W. Bradley wrote, “[the majority] examines the purpose of the clause and the purported intent of the affiant to determine that there was sufficient compliance with its purpose here.”

The oath and affirmation requirement, she argued, requires “that an oath or affirmation actually take place, whether in writing or orally, and that it is done before a judicial officer in some fashion.”