State v. Jeffrey L. Moeser

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 24, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2184-CR Cir. Ct. No. 2017CF515

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY L. MOESER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Portage County:
ROBERT J. SHANNON, Judge. Affirmed and cause remanded with directions.

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.

¶1 NASHOLD, J. Jeffrey Moeser appeals a judgment convicting him
of operating while intoxicated, sixth offense. See WIS. STAT. § 346.63(1)(a)
No. 2019AP2184-CR

(2019-20).1 He contends that the results from chemical testing of his blood should
have been suppressed because the affidavit in support of the search warrant
authorizing the blood draw was not sworn to under oath by the affiant police
officer, in violation of the United States and Wisconsin constitutions. We
conclude that the affidavit satisfied the requirement that search warrants be
supported by oath or affirmation, and therefore affirm.

BACKGROUND

¶2 The following facts are undisputed. Jeffrey Moeser was arrested by
Sergeant Steve Brown for operating while intoxicated (OWI), sixth offense, in
October 2017. Brown transported Moeser to a hospital where Moeser refused to
comply with a blood draw, causing Brown to seek a search warrant. In Brown’s
presence, Lieutenant Jacob Wills, a notary public, notarized Brown’s affidavit in
support of the search warrant.

¶3 As germane to this appeal, the affidavit contained the following
statements and characteristics. At the top of the affidavit, Brown wrote his name
on a blank space 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.”
Near the bottom of the affidavit, Brown dated and signed the affidavit, and he
indicated that the affidavit was made at the hospital. His signature appears

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP2184-CR

immediately above a jurat2 that reads, “Subscribed and sworn to before me.”
Wills dated and signed the jurat, and he affixed his notary seal.

¶4 Wills presented the completed warrant to the on-call court
commissioner, who authorized the warrant. It is undisputed that Brown made no
oral statement supporting the truth of the contents of the affidavit, either while
signing the affidavit in the presence of Wills or before the court commissioner.

¶5 Moeser’s blood was drawn and the results from the blood test
showed a blood alcohol concentration of 0.220 g/100mL. The State charged
Moeser with OWI, sixth offense, and operating with prohibited alcohol
concentration, sixth offense.

¶6 Moeser filed a motion to suppress the blood test results, arguing that
the warrant did not satisfy constitutional requirements because, according to
Moeser, Brown was not placed under oath regarding the statements made in his
affidavit. Referencing an audio recording3 taken at the hospital, Moeser noted that
Brown never orally swore under oath that the allegations contained in the affidavit
were true.

2
“‘Jurat’ is the traditional name used to refer to the notary’s written certificate, which
should appear after the signature of a person who has given an oath, or has made a sworn
statement.” WISCONSIN DEP’T OF FINANCIAL INSTITUTIONS, NOTARY PUBLIC INFORMATION 9
(May 2020), available at https://wdfi.org/Apostilles_Notary_Public_and_Trademarks/pdf/dfi-not-
102P.pdf (last visited June 9, 2021); see also Estate of Hopgood v. Boyd, 2013 WI 1, ¶4 n.4, 345
Wis. 2d 65, 825 N.W.2d 273 (relying on Wisconsin Department of Financial Institution’s
definition of “jurat”).
3
This recording is not part of the appellate record.

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No. 2019AP2184-CR

¶7 Wills subsequently completed a supplemental report describing his
recollections regarding having notarized Sergeant Brown’s affidavit. The report
contains the following statement:

Sgt. Brown completed the Affidavit. I observed Sgt.
Brown sign the Affidavit. I notarized Sgt. Brown’s
signature certifying his true and accurate identity.…
Following the established procedure for obtaining an OWI
search warrant, I did not administer an oath, nor did Sgt.
Brown swear to me the facts contained in the Affidavit.[4]

¶8 The State filed a response to Moeser’s motion, with Wills’
supplemental report attached. The State argued that the affidavit was sworn or
affirmed because language in the affidavit showed Brown’s clearly manifested
intention to be under oath. With respect to Wills’ statement that he acted in
accordance with “established procedure,” the State responded,

This office has confirmed that, indeed, this was the
“established policy” of the Portage County Sheriff[’]s
Office. The State concedes this policy was erroneous. All
law enforcement agencies in Portage County have been
reminded that the better practice is to administer an oral
oath upon signing the affidavit in support of a search
warrant.[5]

4
In making this statement, Wills appears to be referring to an oral oath or swearing.
Regardless, to the extent Wills is suggesting that no oath or affirmation took place at all, neither
the State nor this court is bound by Wills’ conclusion. The question of whether Brown’s affidavit
satisfied the oath or affirmation requirement is a legal determination to be decided by the court.
5
Despite our conclusion explained below that the warrant issued in this case was
supported by an oath or affirmation, we express our 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. See State v. Johnson, No. 2019AP1398-CR, unpublished
slip op. ¶33 (WI App Sept. 9, 2020) (“[W]e note that although the validity of an oath or
affirmation is a ‘matter of substance, not form,’ we consider the better practice for all parties
involved in the search warrant application process is to utilize the directory methods of
administering an oath or affirmation that our legislature has provided in WIS. STAT. § 906.03(2)
(continued)

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No. 2019AP2184-CR

¶9 Following a hearing on stipulated facts, the circuit court rejected
Moeser’s argument that the warrant was constitutionally infirm because Brown
never recited an oral oath. The court determined that “the language in the affidavit
indicates to the Court that Sergeant Brown swore to the truth of the information
provided in the affidavit.” The court distinguished authority upon which Moeser
relied6 and, citing United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002),
the court determined that the warrant was not defective because “Sergeant Brown
did realize that he was swearing to the truth of what he indicated in his affidavit.”
The court denied the motion to suppress the blood draw.

¶10 At a subsequent plea and sentencing hearing, Moeser pleaded guilty
to sixth offense OWI. The circuit court withheld sentence and placed Moeser on
probation for three years with various conditions, but stayed the sentence pending
this appeal.

DISCUSSION

¶11 Moeser does not dispute that the information in the affidavit
establishes probable cause for the search warrant. Rather, Moeser argues7 that the

and (3).… [H]owever, the failure to do so in this case did not invalidate the search warrant.”
(quoting State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473)); see also United
States v. Brooks, 285 F.3d 1102, 1106 (8th Cir. 2002) (holding that “a person may be under oath
even though that person has not formally taken an oath by raising a hand and reciting formulaic
words” but noting that “the better practice is for an affiant orally to affirm or swear before a
person authorized to administer oaths.”).
6
As he does on appeal, in the circuit court Moeser relied on Tye and State v. Hess, 2010
WI 82, 327 Wis. 2d 524, 785 N.W.2d 568, which we discuss later in this opinion.
7
WISCONSIN STAT. RULE 809.19(8)(c)(1) provides that a party’s statement of the case
should be included in the word count required by RULE 809.19(8)(d). Moeser’s brief-in-chief
does not include the statement of the case in the word count, nor was his electronic brief provided
in a text-searchable format, as required by RULE 809.19(12)(c), so that we may easily verify the
word count. Because the brief as a whole does not exceed the word limit set forth by RULE
(continued)

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No. 2019AP2184-CR

affidavit was defective because it was not “sworn to” by Brown. Specifically, he
contends that the affidavit was not “sworn to” because Brown was never “placed
under oath nor did he orally swear that the contents in the affidavit were true to the
best of his knowledge.” The State responds that the oath or affirmation
requirement was satisfied because Brown actually or constructively swore to or
affirmed the facts in the affidavit. It argues that the oath or affirmation
requirement was met because the circumstances surrounding the search warrant
application impressed upon Brown the importance of telling the truth when he
supplied facts to the court commissioner. As we explain below, we conclude that,
under the specific facts of this case, the oath or affirmation requirement is
satisfied.8

809.19(8)(c)(1), we consider the brief in its entirety, but we remind counsel that we expect full
compliance with the rules of appellate procedure, including RULE 809.19(8)(d).
8
Despite the State’s argument that the officers’ actions in this case satisfied the oath or
affirmation requirement, the dissent states at several points that it is “undisputed” that the officer
seeking the warrant did not make an oath or affirmation as to the truthfulness of the affidavit
before either the notary or the court commissioner. Dissent, ¶¶1-3, 10. In fact, whether an oath
or affirmation occurred is not only disputed in this case, it is the only issue in dispute on appeal.

The dissent’s statement appears to reflect its conclusion that an “oath or affirmation”
necessarily means that the affiant has made an oral declaration regarding the truth of the affidavit.
It appears that, under the dissent’s view, a written act cannot suffice, even where, as here: (1) the
affiant wrote his name preceding the phrase, “being first duly sworn on oath, deposes and says”;
(2) the affiant stated in the body of the 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”; (3) the affiant signed and dated the affidavit; (4) the affiant
completed these actions in the presence of the notary; (5) the affiant’s signature appears
immediately above the notary’s jurat that states, “Subscribed and sworn to before me”; (6) the
notary dated and signed the jurat; and (7) the notary affixed his notary seal.

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No. 2019AP2184-CR

I. Standard of Review and Legal Principles
Governing Oaths and Affirmations

¶12 In reviewing the denial of a motion to suppress, we will uphold the
circuit court’s findings of fact unless they are clearly erroneous, but we will
review de novo the circuit court’s application of constitutional principles to those
facts. State v. Sykes, 2005 WI 48, ¶12, 279 Wis. 2d 742, 695 N.W.2d 277.

¶13 The Fourth Amendment to the United States Constitution provides
that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation.” Similarly, Article I, Section 11 of the Wisconsin Constitution states
that “no warrant shall issue but upon probable cause, supported by oath or
affirmation.” “The Wisconsin state constitutional oath provision has been
reinforced by legislation,” specifically, WIS. STAT. § 968.12. State v. Tye, 2001
WI 124, ¶11, 248 Wis. 2d 530, 636 N.W.2d 473. Pursuant to this statutory
provision, a search warrant may be based either “upon sworn oral testimony
communicated to the judge by telephone, radio or other means of electronic
communication,” § 968.12(3)(a), or “upon affidavit,” § 968.12(2). The warrant
upon affidavit subsection provides, in pertinent part:

(2) WARRANT UPON AFFIDAVIT. A search warrant
may be based upon sworn complaint or affidavit ... showing
probable cause therefor. The complaint, affidavit or
testimony may be upon information and belief. The person
requesting the warrant may swear to the complaint or
affidavit before a notarial officer authorized under ch. 140
to take acknowledgments or before a judge, or a judge may
place a person under oath via telephone, radio, or other
means of electronic communication, without the
requirement of face-to-face contact, to swear to the
complaint or affidavit. The judge shall indicate on the

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No. 2019AP2184-CR

search warrant that the person so swore to the complaint or
affidavit.[9]

Sec. 968.12(2).

¶14 The terms “oath” and “affirmation”10 are not defined in the United
States or Wisconsin constitutions, nor are the terms defined in Wisconsin statutes.
WISCONSIN STAT. § 887.03, included in the chapter, “Depositions, Oaths and
Affidavits,” broadly provides that an oath or affidavit “may be taken in any of the
usual forms, and every person swearing, affirming or declaring in any such form
shall be deemed to have been lawfully sworn.” However, that section does not
define the terms “swearing” or “affirming,” nor does it describe what is meant by
“the usual forms.” WISCONSIN STAT. § 906.03, entitled, “Oath or affirmation,”
sheds some light on what “usual forms” an oath or affirmation may take, at least in
the context of testimony by witnesses in court proceedings. Section 906.03
provides:

Oath or affirmation.

(1) Before testifying, every witness shall be
required to declare that the witness will testify truthfully,
by oath or affirmation administered in a form calculated to
awaken the witness’s conscience and impress the witness’s
mind with the witness’s duty to do so.

(2) The oath may be administered substantially in
the following form: Do you solemnly swear that the

9
Effective April 11, 2018, WIS. STAT. § 968.12(2) was amended to include the last two
sentences of this provision. 2017 Wis. Act 261, § 11m. The events leading to this appeal
occurred prior to the stated effective date of this amendment. The State nonetheless relies on the
new language in § 968.12(2) in its briefing to this court without addressing retroactivity, and
Moeser does not challenge the application of the amendment. We note that the outcome of this
case is the same regardless of whether the amendment applies.
10
WISCONSIN STAT. § 990.01(24) provides that “‘oath’ includes affirmation in all cases
where by law an affirmation may be substituted for an oath.”

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No. 2019AP2184-CR

testimony you shall give in this matter shall be the truth, the
whole truth and nothing but the truth, so help you God.

(3) Every person who shall declare that the person
has conscientious scruples against taking the oath, or
swearing in the usual form, shall make a solemn declaration
or affirmation, which may be in the following form: Do
you solemnly, sincerely and truly declare and affirm that
the testimony you shall give in this matter shall be the truth,
the whole truth and nothing but the truth; and this you do
under the pains and penalties of perjury.

(4) The assent to the oath or affirmation by the
person making it may be manifested by the uplifted hand.

¶15 In addition, we note that Black’s Law Dictionary defines “oath” as
“[a] solemn declaration, accompanied by a swearing to God or a revered person or
thing, that one’s statement is true or that one will be bound to a promise,” while
“affirmation” is defined as “[a] solemn pledge equivalent to an oath but without
reference to a supreme being or to swearing.” BLACK’S LAW DICTIONARY (11th
ed. 2019).

¶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.” Tye,
248 Wis. 2d 530, ¶19. “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)). “An
oath or affirmation to support a search warrant reminds both the investigator
seeking the search warrant and the magistrate issuing it of the importance and
solemnity of the process involved.” Tye, 248 Wis. 2d 530, ¶19. It “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. (footnotes omitted). “[W]hen no sworn testimony
exists to support a search warrant, then the warrant is void.” Id. at ¶13.

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No. 2019AP2184-CR

II. Application of Legal Principles to the Affidavit
and Warrant In This Case

¶17 Moeser argues that the Brown affidavit notarized by Lieutenant
Wills did not satisfy our federal and state constitutions’ oath or affirmation
requirements because it did not comply with the procedures for administering an
oath or affirmation set forth in WIS. STAT. § 906.03. We disagree.

¶18 First, Moeser cites no authority for the position that the procedures
outlined in WIS. STAT. § 906.03, a statute governing witness testimony at court
proceedings, governs the oath or affirmation requirement in the context of an
affidavit for a search warrant. Moreover, even if we were to assume that these
statutory procedures apply here, the subsections of the statute containing the
procedures that Moeser argues are mandatory all use the word “may,” indicating
that the directives are permissive and not mandatory. See City of Wauwatosa v.
County of Milwaukee, 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963) (“Generally
in construing statutes, ‘may’ is construed as permissive and ‘shall’ is construed
as mandatory unless a different construction is demanded by the statute in order to
carry out the clear intent of the legislature.”). Specifically, subsections (2) and (3)
propose a form that an oath or affidavit may take, and subsection (4) indicates that
the person may manifest assent by an uplifted hand. See § 906.03(2)-(4).
Subsection (1) also suggests that no specific recitation or procedure is required to
administer an oath or affirmation, and that instead, the focus is on ensuring the
truthfulness of the statements: “Before testifying, every witness shall be required
to declare that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness’s conscience and impress
the witness’s mind with the witness’s duty to do so.” See § 906.03(1). The
permissive form of these provisions, combined with the directive in WIS. STAT.

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No. 2019AP2184-CR

§ 887.03 that the oath or affirmation supporting an affidavit “may be taken in any
of the usual forms,” leads us to reject Brown’s argument that an affidavit that does
not comply with the procedures and oral recitations set forth in § 906.03 is
constitutionally deficient. See also 2 WAYNE R. LAFAVE, ET AL., CRIMINAL
PROCEDURE § 3.4(c) (4th ed. 2020) (“Oath or affirmation requirement means the
information must be sworn to”; however, “[n]o particular ceremony is necessary to
constitute the act of swearing”; rather, “[i]t is only necessary that something be
done in the presence of the magistrate issuing the search warrant which is
understood by both the magistrate and the affiant to constitute the act of
swearing.” (footnotes omitted)).

¶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. We further agree with the State that 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.

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No. 2019AP2184-CR

¶21 Although Moeser is correct that Kellner does not involve an
affidavit in support of a search warrant but instead addresses notices of claims
against a state employee, the four factors articulated in that case are used to
determine whether an oath or affirmation occurred in the context of swearing to
the contents of a written document, which is the issue here. These factors provide
a useful framework for considering whether the Brown affidavit satisfied the oath
or affirmation requirement. Application of these factors shows that the Brown
affidavit contained the requisite oath or affirmance in support of the warrant issued
in this case.

¶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’ 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’
notary jurat appearing below Brown’s signature and stating that the affidavit was
“subscribed and sworn to” Wills, along with Wills’ notary seal.

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No. 2019AP2184-CR

¶23 Thus, we conclude that the four Kellner factors support the
conclusion that the affidavit and warrant satisfied the oath or affirmation
requirement.

III. State v. Tye and State v. Hess

¶24 In support of his argument that Brown’s affidavit was “unsworn,”
Moeser relies heavily on our supreme court’s decision in Tye. This reliance is
misplaced. In Tye, the investigator failed to sign and swear to the affidavit
supporting the search warrant, and gave no sworn testimony supporting the
affidavit’s accuracy. Tye, 248 Wis. 2d 530, ¶5. After the search warrant was
executed, the investigator realized that the affidavit had not been given under oath
and notified the district attorney’s office of this fact. Id., ¶7. Because of this
defect, the investigator prepared and swore to a second affidavit. Id. The Tye
court determined that the warrant was facially deficient because the only
supporting affidavit at the time of the warrant’s execution did not meet the
constitutional requirement of an oath or affirmation. Id. The court held that “the
total absence of any statement under oath” to support the search warrant at the
time of its execution violated the oath or affirmation requirement of the federal
and state constitutions. Id., ¶¶3, 21.

¶25 In contrast to Tye, in which there was a “total absence of any
statement under oath,” here, as explained above, Brown’s affidavit contained
numerous indicia of Brown’s intent to swear or affirm to the truth of the affidavit’s
contents. Furthermore, unlike this case, in which the parties dispute whether the
affidavit met the oath or affirmation requirement, in Tye it was undisputed that
there was absolutely no oath or affirmation supporting the search warrant affidavit
when the search warrant was executed. See id., ¶¶4-7. Moreover, the affidavit in

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No. 2019AP2184-CR

Tye not only failed the oath or affirmation requirement, it also lacked the affiant’s
signature, whereas Sergeant Brown signed the affidavit at issue in this case. See
id., ¶5.

¶26 Moeser also relies on State v. Hess, 2010 WI 82, 327 Wis. 2d 524,
541, 785 N.W.2d 568 (2010). However, the arrest warrant in that case was not
supported by any affidavit whatsoever, whether sworn or unsworn. Hess, 327
Wis. 2d 524, ¶35. Instead, a criminal arrest warrant was issued solely on the basis
of a letter from a probation agent asking that the defendant be detained to facilitate
the preparation of his presentence investigation report. Id., ¶¶6-8. The parties
agreed that the challenged search warrant in that case was facially defective and
the court stated that the warrant was unsupported by oath or affirmation.
Therefore, Hess is also distinguishable from the instant case and does not provide
grounds for invalidating the search warrant that was based on Brown’s affidavit.

¶27 In sum, Moeser has not provided authority that supports his position
that the oath or affirmation requirement may only be satisfied if an oral statement
is made and the procedures in WIS. STAT. § 906.03 followed. Indeed, as discussed
below, several foreign jurisdictions have rejected such a requirement under facts
similar to those here.

IV. Persuasive Authority from Other Jurisdictions

¶28 Our conclusion is further supported by case law from other
jurisdictions concluding that, in the warrant context, the oath or affirmation
requirement can be satisfied by written statements. For example, United States v.
Brooks, 285 F.3d 1102 (8th Cir. 2002), which the circuit court relied on here,
involved the following facts:

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No. 2019AP2184-CR

At the beginning of the affidavit the officer typed, “I, Chris
Graves, being duly sworn depose[ ] and state[ ] as follows,”
and preceding the line for his signature he typed, “I have
read this affidavit and the facts herein are true to the best of
my knowledge.” The warrant application began by stating
that Officer Graves was “duly sworn,” and later recited that
“being duly sworn [he] depose[d] and state[d]” that he had
“probable cause.”

Brooks, 285 F.3d at 1104. Additionally, the notary public’s jurat followed the
officer’s signature and stated, “Subscribed and sworn to me this 18 of March 2000
at 1536 p.m.” Id. The officer “did not ‘recall the oath that [the notary]
administered,’” and he also “did not remember the notary having him raise his
right hand and solemnly swear ‘to tell the truth and nothing but the truth.’” Id.
However, the Brooks court determined that the affidavit’s “repeated recitations” to
the effect that the affiant was “duly sworn” reflected the affiant’s “intention to be
under oath.” Id. at 1105. The court held that this intent, as manifested by the
written document, satisfied the oath or affirmation requirement. See id. The court
stated:

[I]n this case we believe that the facts support a conclusion
that [the officer] was under oath when he made the
application for the warrant because he intended to
undertake and did undertake that obligation by the
statements that he made in his affidavit and by his attendant
conduct. In other words, a person may be under oath even
though that person has not formally taken an oath by
raising a hand and reciting formulaic words. Even if [the
officer] was not under oath, however, it is plain that his
affidavit contained at the very least an affirmation of the
truth of the statements in it, because it included a number of
formal assertions that he was telling the truth. Thus the
fourth amendment was not violated by the issuance of the
warrant.

Id. at 1106; see also 3 AM. JUR. 2d Affidavits § 7 (2021) (“It is not essential that
the affiant should hold up his hand and swear in order to make his act an oath, but

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No. 2019AP2184-CR

it is sufficient if both affiant and the officer understand that what is done is all that
is necessary to complete the act of swearing.”).

¶29 The reasoning in Brooks is persuasive. Also persuasive are two
cases cited by the Brooks court: State v. Douglas, 428 P.2d 535 (Wash. 1967),
and Atwood v. State, 111 So. 865 (Miss. 1927). In Douglas, no oral oath was
administered, but the affidavit indicated the affiant was “first duly sworn on oath”
and the jurat indicated the affidavit was “subscribed and sworn before [the court
commissioner].” Douglas, 428 P.2d at 538-39. On those facts, the Douglas court
held that the United States Constitution’s oath or affirmation requirement was
satisfied. Id. at 539. In Atwood, the affiant signed a search warrant affidavit in
the presence of a justice of the peace but no oral oath was administered, nor was
the affiant required to raise his hand. Atwood, 111 So. at 865. Nonetheless, the
Atwood court determined that the affidavit met the requirement of an oath or
affirmation. Id. at 866.

¶30 Likewise in United States v. Fredericks, 273 F. Supp. 2d 1032,
1037-38 (D.N.D. 2003), a federal district court, relying in part on the Brooks case,
concluded that a person may be deemed to be under oath even in the absence of a
raised hand and oral recitation. Because the facts in Fredericks, like those in
Brooks, are strikingly similar to the facts in this case and the rationale persuasive,
we quote the Fredericks case at some length:

In determining whether the Fourth Amendment’s
oath or affirmation requirement has been fulfilled, the
Court may consider the language used in the search warrant
application as well as the applicant’s conduct. [Brooks,]
285 F.3d 1102, 1105–06. As the Eighth Circuit Court of
Appeals explained in United States v. Brooks, a person
may be under oath even though that person has not
formally taken an oath by raising a hand and reciting
formulaic words.

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No. 2019AP2184-CR

Almost all of the apposite cases indicate that this is
the relevant inquiry because a person who manifests an
intention to be under oath is in fact under oath. In Atwood
v. State, 146 Miss. 662, 111 So. 865, 866 (1927), for
instance, where both the law enforcement officer, who
signed the affidavit in the presence of a justice of the peace,
and the justice of peace, who affixed his jurat, knew an
oath was required and did what they thought was necessary
for the administration of an oath, the court concluded that
“by construction, what occurred amounted to the taking of
the necessary oath.” The court added that “[o]ne may
speak as plainly and effectually by his acts and conduct as
he can by word of mouth.” Id.

The Court finds that, under the circumstances,
Officer Standish’s “Affidavit for Search Warrant” satisfied
the oath or affirmation requirement and that the search
warrant was not issued in violation of the Fourth
Amendment. The Affidavit begins by stating “that the
undersigned being duly sworn deposes and states to the
Court....” Additionally, the Affidavit reveals that Officer
Standish signed the document upon presentation to the
tribal court and [the judge] attested that the Affidavit was
sworn to and subscribed by Officer Standish in her
presence.

The nature of the document as well as Officer
Standish’s attendant conduct indicates that Officer Standish
realized that he was swearing to the truth of what he said.
Officer Standish’s recitation that he was “duly sworn”
reflects his intention to be under oath. Officer Standish’s
conduct was also consistent with this intention as he took
the document to a tribal court judge and signed it in her
presence. As it is apparent that Officer Standish had
manifested an intent to be under oath, as such, he can be
considered to be under oath for Fourth Amendment
purposes.

Fredericks, 273 F. Supp. 2d at 1037-38; see also United States v. Bueno-Vargas,
383 F.3d 1104, 1111-12 (9th Cir. 2004) (“We conclude that signing a statement
under penalty of perjury satisfies the standard for an oath or affirmation, as it is a
signal that the declarant understands the legal significance of the declarant’s
statements and the potential for punishment if the declarant lies .… [T]he
declarant knew that he was making a solemn promise to the magistrate judge that

17
No. 2019AP2184-CR

all the information he was providing was true and correct. That is all the “Oath or
affirmation” clause requires.”); State v. Gutierrez-Perez, 337 P.3d 205, 206, 213
(Utah 2014) (although no oral oath or affirmation was made, court determined that
a checked box on an electronic application for a warrant stating, “By submitting
this affidavit, I declare under criminal penalty of the State of Utah that the
foregoing is true and correct” was “more than enough to impress upon [the affiant]
the solemnity of the occasion” and that the oath or affirmation requirement was
satisfied); People v. Sullivan, 437 N.E.2d 1130, 1133 (N.Y. 1982) (oath or
affirmation requirement satisfied in absence of oral oath or affirmation where
written warning in informant’s affidavit that any false statements would be
punishable as a misdemeanor under New York law “served as the procedural and
functional equivalent of the more traditional type of oath or affirmation”); State v.
Knight, 995 P.2d 1033, 1041-42 (N.M. Ct. App. 2000) (although no formal oath
ceremony, oath or affirmation requirement was met where application for wiretap
warrant supported by affidavit stating, “Subscribed and sworn to or declared and
affirmed to before me in the above[-]named county of the State of New Mexico”
because this language “alerted” the affiant to the nature of the document).

¶31 These cases lend further support to our conclusion that, under the
specific facts of this case, the search warrant was based on an oath or affirmation
as to the truth of the content of the Brown affidavit.11 As a result, Moeser has not
shown that the circuit court erred in denying his motion to suppress the chemical
test results of his blood.

11
Notably, although the dissent attempts to distinguish these cases, it provides no case
law from any jurisdiction in which a court, upon analogous facts, has taken a view contrary to
that taken by the majority opinion in this case.

18
No. 2019AP2184-CR

¶32 Accordingly, we affirm the judgment of conviction and the circuit
court’s order denying the motion to suppress evidence, and we remand this case
for the circuit court to lift the stay of the sentence.

By the Court.—Judgment affirmed and cause remanded with
directions.

Not recommended for publication in the official reports.

19
No. 2019AP2184-CR(D)

¶33 KLOPPENBURG, J. (dissenting). It is undisputed that: (1) contrary
to the face of the search warrant affidavit, the officer seeking the warrant did not
“make an oath or affirmation as to the truthfulness of the contents of the” affidavit
before the officer who notarized the affidavit, Kellner v. Christian, 197 Wis. 2d
183, 191, 539 N.W.2d 685 (1995); and (2) the officer seeking the warrant did not
make such an oath or affirmation before the court commissioner who issued the
warrant. It is also undisputed that the officers followed a department policy that
dispenses with the oath or affirmation requirement for a valid search warrant.
Under the plain language of the Wisconsin Constitution’s oath or affirmation
requirement as “reinforced” by state statutes, State v. Tye, 2001 WI 124, ¶11, 248
Wis. 2d 530, 636 N.W.2d 473, and under longstanding case law interpreting the
oath or affirmation requirement, the absence of any oath or affirmation attesting to
the truth of the affidavit supporting the search warrant renders the search warrant
void. The majority’s conclusion that the affidavit did contain an oath or
affirmation is contrary to the facts and is based on a misreading of Wisconsin case
law and on resort to non-Wisconsin case law that contravenes Wisconsin law.
Accordingly, I respectfully dissent.

BACKGROUND

¶34 The following facts are undisputed. Moeser’s blood was drawn
pursuant to a search warrant issued after Moeser refused to consent to a blood
draw. The warrant was supported by an affidavit submitted by Sergeant Steve
Brown. At the top of the affidavit, before Brown set out his averments, he wrote
his name on a blank space preceding the phrase, “being first duly sworn on oath,
No. 2019AP2184-CR(D)

deposes and says:” Near the bottom of the affidavit, Brown dated and signed the
affidavit, immediately above a jurat that reads, “Subscribed and sworn to before
me.” Lieutenant Jacob Wills, a notary public, dated and signed the jurat and
affixed his notary seal.

¶35 Sergeant Brown did not swear an oath or make a declaration or
affirmation attesting to the truth of the statements contained in the affidavit, either
when he signed the affidavit in the presence of Lieutenant Wills or when he
appeared before the court commissioner; nor did Wills administer an oath or
affirmation when he observed Brown sign the affidavit and “notarized Sgt.
Brown’s signature.”1 Both officers were following the “established policy” of the
Portage County Sheriff’s Office “for obtaining an OWI search warrant.”

¶36 Moeser filed a motion to suppress the blood test results, arguing that
the warrant did not satisfy the constitutional “oath or affirmation” requirement
because Sergeant Brown did not make an oath or affirmation attesting to the truth
of the statements in the affidavit. The circuit court denied Moeser’s motion.
Moeser subsequently pleaded guilty to sixth offense OWI. Moeser appeals the
denial of his suppression motion.

1
The majority’s statement in footnote 4 that this court is not bound by these facts of
record is perplexing. The majority suggests that this court can properly apply legal standards to
facts—the presence in the affidavit of the prefatory “being first duly sworn on oath” and the jurat
reading “Subscribed and sworn to before me”—that have been proven to be inaccurate. I agree
with the majority that whether the undisputed facts as to the circumstances here satisfy the oath or
affirmation requirement is a question of law. However, to the extent that the majority relies on
these false facts to show compliance with the oath and affirmation requirement, I explain below
why that reliance is contrary to Wisconsin law. To the extent that the majority relies on these
facts to show the solemnity with which the officers proceeded, I explain below that the additional
fact that the officers proceeded pursuant to a department policy under which the language in the
affidavit is never accurate eliminates any solemnity that could be inferred from that language.

2
No. 2019AP2184-CR(D)

DISCUSSION

¶37 Like the Fourth Amendment to the U.S. Constitution, Article I,
Section 11 of the Wisconsin Constitution states that “no warrant shall issue but
upon probable cause, supported by oath and or affirmation.” Wisconsin courts
have “long recognized an oath or affirmation as an essential prerequisite to
obtaining a valid search warrant under the state constitution.” Tye, 248 Wis. 2d
550, ¶13.

¶38 An oath invokes a reference to God, while an affirmation is a solemn
pledge without such a reference. See WIS. STAT. § 906.03(1)-(3) (2019-20)2
(providing that, in the context of testimony by witnesses in court proceedings, to
fulfill the requirement that a witness declare that he or she will testify truthfully,
the witness shall either swear an oath to tell the truth “so help you God” or
solemnly declare and affirm that the witness will tell the truth “under the pains and
penalties of perjury”); BLACK’S LAW DICTIONARY, (11th ed. 2019) (defining
“oath” as “[a] solemn declaration, accompanied by a swearing to God or a revered
person or thing, that one’s statement is true or that one will be bound to a
promise,” and “affirmation” as “[a] solemn pledge equivalent to an oath but
without reference to a supreme being or to swearing”). See also WIS. STAT.
§§ 990.01(41) (providing that “‘[s]worn’ includes ‘affirmed’ in all cases where by
law an affirmation may be substituted for an oath”) and 990.01(24) (providing that
“‘[o]ath’ includes affirmation in all cases where by law an affirmation may be
substituted for an oath”).

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

3
No. 2019AP2184-CR(D)

¶39 Whether the declaration “that the witness will testify truthfully” is
made “by oath or affirmation,” it must be “administered in a form calculated to
awaken the witness’s conscience and impress the witness’s mind with the
witness’s duty to do so.” WIS. STAT. § 906.03(1). Our courts have referred to
statements made under either oath or affirmation as “sworn testimony.” State v.
Baltes, 183 Wis. 545, 552, 198 N.W. 282 (1924) (“The essential prerequisite to
the issuance of a valid search warrant is the taking of sworn testimony….”); see
also WIS. STAT. § 887.03 (providing that, with respect to making an oath or
affidavit, “every person swearing, affirming or declaring in any such form shall be
deemed to have been lawfully sworn”).

¶40 The purpose of swearing, by oath or affirmation, is to

impress upon the swearing individual an appropriate sense
of obligation to tell the truth. An oath or affirmation to
support a search warrant reminds both the investigator
seeking the search warrant and the magistrate issuing it of
the importance and solemnity of the process involved. 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. An oath
preserves the integrity of the search warrant process and
thus protects the constitutionally guaranteed fundamental
right of people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures.

Tye, 248 Wis. 2d 530, ¶19 (footnotes omitted); see also Kellner, 197 Wis. 2d at
191 (“It is established in law that an oath is an affirmation of the truth of a
statement, which renders one willfully asserting an untruth punishable for
perjury.”).

¶41 Our legislature has “reinforced” our constitution’s oath or
affirmation requirement by enacting WIS. STAT. § 968.12(2). Tye, 248 Wis. 2d

4
No. 2019AP2184-CR(D)

530, ¶11. That statute provides, “A search warrant may be based upon sworn
complaint or affidavit, or testimony … showing probable cause therefor.” Sec.
968.12(2) (emphasis added). The statute further provides that the swearing
requirement may be satisfied in one of two ways: (1) “the person requesting the
warrant may swear to the complaint or affidavit before a [notary]”; or (2) a judge
may place the person under oath…to swear to the complaint or affidavit.” Id. In
either case, “[t]he information provided to support the issuance of a warrant ‘must
be sworn to.’” Tye, 248 Wis. 2d 530, ¶13 (citing Baltes, 183 Wis. at 552).
“[W]hen no sworn testimony [or affidavit] exists to support a search warrant, then
the warrant is void.” Tye, 248 Wis. 2d 530, ¶13.

¶42 In sum, the statutes and case law relevant to our constitution’s rule
that “no warrant shall issue but upon probable cause, supported by oath and or
affirmation,” WIS. CONST. art. I § 11, plainly require that the truth of an affidavit
supporting a warrant must be sworn to before either a notary or a judge. Here, it is
undisputed that Sergeant Brown did not swear to the truthfulness of the statements
in the affidavit before either the notary or the court commissioner. Thus, the
warrant is void. Tye, 248 Wis. 2d 530, ¶13 (warrant unsupported by sworn
testimony is void).

¶43 The majority’s repeated assertions that the affidavit contained and
was supported by the requisite oath or affirmation, Majority at ¶¶19 and 21, are
flatly contradicted by the undisputed facts. Those facts show that the affidavit
neither contained nor was supported by an oath or affirmation. In the absence of
an oath or affirmation, the majority’s conclusion that the affidavit nevertheless
satisfied the oath or affirmation requirement and that the warrant is therefore valid
is contrary to the language of our constitution, statutes, and case law cited above,

5
No. 2019AP2184-CR(D)

all of which, as explained, require that statements in an affidavit supporting a
search warrant must be sworn to by oath or affirmation.

¶44 The majority explains away this factual and legal deficiency by
citing to Kellner, 197 Wis. 2d 183, which it asserts has set forth a four-factor
“test” for whether the oath and affirmation requirement has been met in the
absence of an actual oath or affirmation, concluding that the Kellner test has been
met here. Majority at ¶¶19-22. However, the majority misreads Kellner, as I now
explain.

¶45 In Kellner, our supreme court concluded that, where no oath or
affirmation as to the truthfulness of a notice of claim had been made or
administered, the statutory requirement that a notice of claim be “sworn to” was
not satisfied. Kellner, 197 Wis. 2d at 187-88. In that case, the claimants were
asked by their attorney whether the contents of the notices of claim were true and
accurate to the best of their knowledge and the claimants signed the notices before
a notary who did not administer any oath or affirmation but merely signed an
acknowledgement verifying that the signers were known to her to be the persons
who signed the notices. Id. at 188-89.

¶46 The court expressly held that, to show compliance with the statutory
“sworn to” requirement, “evidence that the contents have been sworn to must
appear in the notice of claim.” Id. at 194. In other words, the court held that the
written document must on its face show that an oath or affirmation occurred.
However, this requirement that the document reflect such an oath or affirmation is
separate from the requirement that the oath or affirmation actually occur. Id. at
198 (requirement pertaining to document is “in addition” to the requirement that

6
No. 2019AP2184-CR(D)

“a claimant must make an oath or affirmation as to the truthfulness of the contents
of the notice”).

¶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”).
Quoting People v. Coles, 535 N.Y.S.2d 897, 903 (1988), the 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. The full text of the language from which Kellner
quoted, Coles, 535 N.Y.S.2d at 903 (internal citations omitted), is instructive:

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. Merely citing in a piece of paper that one has
accepted upon one’s self an oath is insufficient to constitute
a swearing. A jurat containing the words “being duly
sworn” is evidence of the fact that an oath was in fact
properly administered. However, such jurat is neither part
of the oath nor conclusive evidence of its due
administration and may be attacked and shown to be false.

¶48 The language in Kellner reflects this same distinction between
evidence in an affidavit that an oath was administered and the administration of
the oath itself: the court recognized that the affiants in that case had failed to
satisfy either requirement. Kellner, 197 Wis. 2d at 191 (“[we] hold that, in order
for a notice to be properly ‘sworn to’ … a claimant must make an oath or
affirmation as to the truthfulness of the contents of the notice. In addition, the
notice must contain a statement showing that the oath or affirmation occurred.
Because [the claimants] failed to comply with these requirements, we affirm the
decision of the court of appeals.”) The administration of the oath requires some

7
No. 2019AP2184-CR(D)

degree of formality and solemnity. Kellner, 197 Wis. 2d at 187-88 (endorsing
position 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, and when the notice
states on its face that the oath or affirmation occurred”); id. at 193 (“Requiring a
formal oath impresses upon any claimant the fact that he or she is bound by the
accuracy and truthfulness of the statement in the notice of claim.”); id. at 191
(essential to an oath is “a solemn declaration”). “The purpose of the oath is to
impress the person who takes the oath with a due sense of obligation, so as to
secure the purity and truth of his or her words under the influence of the oath’s
sanctity.” Id. 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

8
No. 2019AP2184-CR(D)

constitute a valid oath, there must be in some form an unequivocal and present
act.” Kellner, 197 Wis. 2d at 192.3

¶50 The majority may be relying, in isolation from the Kellner court’s
affirmation of the two-part nature of the oath or affirmation requirement, on the
court’s rejection of the claimants’ argument that the evidence that they told their
attorney before they signed the notices that they swore to the truth of the notices’
contents overcame the facial deficiencies in the notices. See id. at 193-94.
However, that situation is just the opposite of the situation here, where the
affidavit on its face satisfies the oath or affirmation requirement, but undisputed
evidence presented by Moeser with his motion to suppress and by the State with
its opposition to the motion establishes that the statements related to the swearing
to the truth of the affidavit’s contents were inaccurate. The majority points to no
language in Kellner suggesting that the face of the document controls where the
pertinent statements in the document are shown to be inaccurate.

¶51 Alternatively, the majority appears to reason that the court in Kellner
set forth a four-factor test to determine whether, in the absence of an oath or
affirmation, a document establishes substantial compliance with the oath or

3
The court in Kellner does not specify the form that the required “act” must take.
However, nothing in Kellner or in the language of our constitution or statutes allows for the “act”
to be dispensed with altogether, as the majority suggests in footnote 8. The officer’s act of
writing and signing his own name does not itself amount to an “unequivocal or present act” of
swearing because it is not a “formal oath” or “solemn declaration.” See Kellner v. Christian, 197
Wis. 2d 183, 187-88, 191, 539 N.W.2d 685 (1995). This does not imply that an officer is
required to speak magic words or raise his or her hand; what matters is the “sanctity,” id. at 192,
and “solemnity” of the oath. State v. Tye, 2001 WI 124, ¶19, 248 Wis. 2d 530, 636 N.W.2d 473.
“An oath is a matter of substance, not form.” Id. Here, the majority points to nothing in the
record to suggest that in writing and signing his name Officer Brown “consciously [took] upon
himself” a solemn, sacred obligation to tell the truth. Kellner, 197 Wis. 2d at 192.

9
No. 2019AP2184-CR(D)

affirmation requirement. Majority, ¶¶20-22. Specifically, the majority points to
the following language:

It is established in law that an oath is an affirmation
of the truth of a statement, which renders one willfully
asserting an untruth punishable or perjury. The 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) acknowledgement by an authorized person
that the oath was taken.

Id. at 191-92 (citations omitted). The majority is mistaken. This language simply
defines what an oath or affirmation is; there is no suggestion anywhere in the
opinion that these four factors comprise a test by which to determine whether
something that is not an oath or affirmation could be so construed. To the
contrary, the court explicitly held that the document “must contain a statement
showing that [an] oath or affirmation occurred.” Id. at 191. Here, as the majority
explains in ¶22, there is no dispute that the affidavit did reflect all of the elements
in the court’s definition of an oath or affirmation. The problem is that none of the
elements, other than the affiant’s signature, actually occurred. That is, the
undisputed facts of record show that three of the “essentials of an oath” did not
exist here: the affiant did not swear by oath or affirmation to the truth of the
affidavit’s contents, the notary did not administer an oath or affirmation, and
neither the notary nor the court commissioner “impress[ed] the person who takes
the oath with a due sense of obligation, so as to secure the purity and truth of his
or her words under the influence of the oath’s sanctity.” Id. at 192. The majority
points to no language in Kellner supporting the proposition that the court’s
definition of an oath may be used as a basis for showing that, where no oath or
affirmation actually occurred, the affiant and notary meant for the oath or

10
No. 2019AP2184-CR(D)

affirmation requirement to be satisfied.4 The requirements for the affidavit are “in
addition” to, id. at 191, 198, not in substitution for, the requirement for a “formal
oath,” id. at 187, 193.

¶52 The majority also points to non-Wisconsin cases for the proposition
that an affidavit satisfies the oath or affirmation requirement if it reflects the
affiant’s solemn intent to be under oath or affirmation even in the absence of an
oath or affirmation. In addition to being nonbinding, see State v. Muckerheide,
2007 WI 5, ¶7, 298 Wis. 2d 553, 560, 725 N.W.2d 930, 933 (case law from other
jurisdictions “is not binding precedent in Wisconsin, and a Wisconsin court is not
required to follow it”), this case law is not persuasive in light of Wisconsin’s body
of law indicating that an oath or affirmation is a “formal” “present act” designed to
“awaken the witness’s conscience” and through which the witness “consciously
takes upon himself” a “due sense of obligation” under the “oath’s sanctity.”
Kellner, 187, 192; WIS. STAT. § 906.03(1). See also, Tye, 248 Wis. 2d 530, ¶¶18-
19 (disagreeing with State’s argument that absence of sworn statement is a mere
matter of “formality”).

4
In footnote 5, the majority notes that we have ruled that the absence of an oath or
affirmation attesting to the truth of an affidavit did not suffice to invalidate the search warrant in
State v. Johnson, No. 2019AP1398-CR, unpublished slip op., ¶33 (WI App Sept. 9, 2020).
However, we so concluded because the officer swore to the truth of the contents of his affidavit
directly to the judge. Id. at ¶¶24, 30. We concluded that the officer’s exchange with the judge
“sufficiently reminded both the investigator seeking the search warrant and the magistrate issuing
it of the importance and solemnity of the process involved.” Id. at ¶30 (internal quotations and
quote source omitted). Similarly, in State v. Orozco-Angulo, No. 2014AP1744-CR, unpublished
slip op., ¶¶11, 14 (WI App April 8, 2015), we upheld the validity of a search warrant where the
officer swore to the judge that the information that he provided in his affidavit and in his
testimony was true. These cases support the conclusion here that the absence of any swearing by
oath or affirmation did suffice to invalidate the search warrant. No reminders of the importance
and solemnity of the search warrant application process existed here, where the statements that
the contents had been sworn to were not accurate and where no such swearing had been made or
administered pursuant to a department policy that had dispensed with such swearing.

11
No. 2019AP2184-CR(D)

¶53 Moreover, all the cases cited from other jurisdictions are easily
distinguished from the case at bar. None of them appear to concern a situation
where, as here, the record establishes as uncontroverted that the officers proceeded
pursuant to a department policy by which an oath or affirmation was routinely not
made or administered before signing an affidavit supporting a search warrant. The
majority cites no law that permits a law enforcement agency to adopt a policy that
dispenses with the oath or affirmation requirement for a valid search warrant. The
oath or affirmation “is an essential component of the Fourth Amendment and legal
proceedings.” Tye, 248 Wis. 2d 530, ¶19. Such a policy establishes a routine that
effectively eliminates the intentional solemnity of the warrant application process,
in violation of the oath requirement’s purpose. See Kellner, 197 Wis. 2d 183, 192.
(“The purpose of the oath is to impress the person who takes the oath with a due
sense of obligation, so as to secure the purity and truth of his or her words under
the influence of the oath’s sanctity.”).5

¶54 Finally, it is not only, as the majority notes at footnote 5, a better
practice for a law enforcement agency not to have such a policy; such a “better
practice” is constitutionally mandated. Wisconsin courts have held that acting
routinely pursuant to department policy does not satisfy constitutional
requirements that depend on specific facts. See State v. Guy, 172 Wis. 2d 86, 100,
492 N.W.2d 311 (1992) (department policy of automatically frisking everyone
present for weapons while executing a search warrant for drugs in a private

5
In addition, at least three of the non-Wisconsin cases concern affidavits containing
statements, absent in this case, that the affiant declares or signs under penalty of perjury, or that
any false statements are punishable under state law. See United States v. Bueno-Vargas, 383
F.3d 1104 (9th Cir. 2004), State v. Gutierrez-Perez, 337 P.3d 205 (Utah 2014); People v.
Sullivan, 437 N.E.2d 1130 (N.Y. 1982).

12
No. 2019AP2184-CR(D)

residence does not relieve officer of constitutional requirement that the officer
have a reasonable suspicion that a person was armed before frisking that person
for weapons); State v. Kruse, 175 Wis. 2d 89, 98, 499 N.W.2d 185 (Ct. App.
1993) (officers’ testimony that they “routinely” secure other rooms incident to a
felony arrest regardless of whether they have information that weapons or other
persons are present in the home does not satisfy the State’s burden of showing that
the officer had reasonable suspicion based on articulable facts to support the
search at issue).

CONCLUSION

¶55 In sum, the majority’s conclusion that the affidavit did contain an
oath or affirmation sufficient to satisfy the oath or affirmation requirement for a
valid search warrant is contrary to the facts and is based on a misreading of
Wisconsin case law and on resort to non-Wisconsin case law that contravenes
Wisconsin law. Applying Wisconsin law to the facts here, I conclude that the
search warrant is void because it was not supported by a sworn affidavit and,
therefore, I would reverse the circuit court’s order denying Moeser’s motion to
suppress and remand for further proceedings. Accordingly, I respectfully dissent.

13