99-3331 State v. Tye

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We further conclude that the evidence seized under this facially defective warrant must be suppressed.

“As the circuit court wisely stated, the oath or affirmation requirement ‘is so basic to the Fourth Amendment that the Court simply can’t look at it as a technical irregularity not affecting the substantial rights of the defendant.'”

Further, we are not persuaded by the State’s argument that the investigator’s sworn statement, made after the warrant was issued and executed, remedies the absence of a sworn statement before the issuance of the search warrant.

“We are not persuaded that the two affidavits are interchangeable as suggested by the State. Curing the absence of an oath or affirmation before a circuit court issues a warrant by permitting the swearing of an oath or affirmation after the warrant was executed eviscerates the oath or affirmation requirement. An after-the-fact oath or affirmation disregards the historical importance of the oath or affirmation as the basis upon which a neutral magistrate issues a warrant.”

Finally, we do not extend the good-faith exception to a warrant issued on the basis of a statement that totally lacks an oath or affirmation.

The trial court’s order granting defendant’s motion to suppress is affirmed.

CONCURRING OPINION: Crooks, J., with whom Bablitch, J., joins. “I agree with the majority opinion that the search warrant, absent the oath requirement, violates both the federal and state constitutions. I write separately only to explain further why the good faith exception to the exclusionary rule does not apply….A warrant that totally lacks an oath or affirmation is so facially deficient that reliance upon the warrant is unreasonable. An officer, who obtains or executes a search warrant unsupported by an oath or affirmation, cannot reasonably rely on that warrant. Accordingly, the good faith exception does not apply and exclusion is appropriate.”

On Certification by the Court of Appeals; Abrahamson, Ch. J.

Attorneys:

For Appellant: William L. Gansner, James E. Doyle, Madison

For Respondent: Mark D. Richards, Christy M. Hall, Racine