2022 WI 76
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2184-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Jeffrey L. Moeser,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 398 Wis. 2d 795, 963 N.W.2d 576
(2021 – unpublished)
OPINION FILED: November 23, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Portage
JUDGE: Robert J. Shannon
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and
KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring
opinion, in which KAROFSKY, J., joined. ANN WALSH BRADLEY, J.,
filed a dissenting opinion, in which DALLET, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
filed by John T. Bayer and Bayer Law Offices, Milwaukee. There
was an oral argument by John T. Bayer.
For the plaintiff-respondent, there was a brief filed by
John W. Kellis, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by John W. Kellis, assistant attorney general.
2022 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP2184-CR
(L.C. No. 2017CF515)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. NOV 23, 2022
Jeffrey L. Moeser, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and
KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring
opinion, in which KAROFSKY, J., joined. ANN WALSH BRADLEY, J.,
filed a dissenting opinion, in which DALLET, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, State v.
Moeser, No. 2019AP2184-CR, unpublished slip op. (Wis. Ct. App.
June 24, 2021), affirming the Portage County circuit court's1
denial of Jeffrey Moeser's motion to suppress evidence. Moeser
was convicted of operating while intoxicated (OWI) sixth
1 The Honorable Robert Shannon presided.
No. 2019AP2184-CR
offense, contrary to Wis. Stat. § 346.63(1)(a) (2019-20).2 We
affirm.
¶2 Moeser challenges the warrant which compelled him to
submit to a blood draw. He argues that the warrant is
constitutionally defective because the affiant was not placed
under oath or affirmation when he signed the affidavit which
accompanied the warrant application. According to Moeser, this
omission failed to satisfy the requirement under the Fourth
Amendment to the United States Constitution and Article I,
Section 11 of the Wisconsin Constitution that warrant
applications be "supported by oath or affirmation."3 As a
result, Moeser argues that the circuit court erroneously denied
his motion to suppress evidence and that the court of appeals
erred in affirming that decision.
¶3 We conclude that the affidavit fulfilled the oath or
affirmation requirement under the United States and Wisconsin
constitutions because "[t]he purpose of an oath or affirmation
is to impress upon the swearing individual an appropriate sense
of obligation to tell the truth," and here the officer was
impressed with that obligation. State v. Tye, 2001 WI 124, ¶19,
2All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
3All subsequent references to the constitutional oath or
affirmation requirements in both the United States and Wisconsin
constitutions are hereinafter referred to collectively,
sometimes as "the constitutional oath or affirmation
requirement" or "Fourth Amendment requirement," unless otherwise
noted.
2
No. 2019AP2184-CR
248 Wis. 2d 530, 636 N.W.2d 473; accord U.S. const. amend. IV;
Wis. Const. art. I, § 11. In other words, the constitutional
guarantee is satisfied because the facts and circumstances
demonstrate that Sergeant Brown executed this affidavit "in a
form calculated to awaken [Sergeant Brown's] conscience and
impress [his] mind with [his] duty to [tell the truth]." Wis.
Stat. § 906.03(1); accord Tye, 248 Wis. 2d 530, ¶19. The United
States and Wisconsin constitutions do not require that any
specific language or procedure be employed in the administration
of an oath or affirmation. Instead, constitutional
requirements, relevant case law, and the Wisconsin Statutes all
indicate that the oath or affirmation requirement is an issue of
substance, not form. Here, the facts sufficiently demonstrate
that the constitutional right to be free from abusive
governmental searches is satisfied. Therefore, the circuit
court did not err in denying Moeser's motion to suppress, and
the court of appeals is affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶4 On October 14, 2017, at about 1:30 a.m., Sergeant
Steven Brown of the Portage County Sheriff's Office stopped
Jeffrey Moeser for suspected OWI. A record check return
revealed that Moeser had five prior convictions for operating
while intoxicated. Sergeant Brown administered field sobriety
tests as well as a preliminary breathalyzer test. The
breathalyzer test returned a blood alcohol content (BAC) of
0.195 percent. Because of his prior convictions, the legal
limit for Moeser was a BAC of 0.02 percent. See Wis. Stat.
3
No. 2019AP2184-CR
§ 340.01(46m)(c). Sergeant Brown then arrested Moeser for
suspected drunk driving and transported him to St. Michael's
Hospital in Stevens Point, Wisconsin, for a blood draw.
¶5 Once at the hospital, Moeser refused to consent to a
blood draw, causing Sergeant Brown to seek a search warrant.
The affidavit in support of the warrant was completed by
Sergeant Brown in the presence of Lieutenant Jacob Wills, a
notary public.
¶6 The document was titled, "AFFIDAVIT." At the
beginning of the affidavit, Sergeant Brown handwrote his name
before the text, "being first duly sworn on oath, deposes and
says." The second paragraph 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." Immediately
following that section, Sergeant Brown personally penned in the
probable cause section, which contained facts specific to
Moeser's arrest. Sergeant Brown then signed and dated the
affidavit, noting that it was completed at St. Michael's
Hospital before Lieutenant Wills. Sergeant Brown's signature
line was immediately above the jurat,4 which read, "Subscribed
and sworn to before me." Lieutenant Wills notarized the
affidavit by signing it and affixing his seal. A judicial
A jurat is "[a] certification added to an affidavit or
4
deposition stating when and before what authority the affidavit
or deposition was made." Jurat, Black's Law Dictionary (11th
ed. 2019).
4
No. 2019AP2184-CR
officer came to the hospital and approved the warrant
application at 3:07 a.m.
¶7 Moeser's blood was drawn pursuant to the warrant and
revealed a BAC of 0.220 g/100mL. The State filed a criminal
complaint charging Moeser with OWI sixth offense, contrary to
Wis. Stat. § 346.63(1)(a), and operating with a prohibited
alcohol concentration sixth offense, contrary to Wis. Stat.
§ 346.63(1)(b), both felony charges.
¶8 Moeser filed a motion to suppress the blood test
evidence, arguing that the warrant did not satisfy
constitutional oath or affirmation requirements because Sergeant
Brown was not placed under oath or affirmation. It is
undisputed that Sergeant Brown made no oral oath or affirmation,
either before or after signing the affidavit. It is also
undisputed that he made no such oath or affirmation before the
judicial officer.
¶9 The State argued that Sergeant Brown was under oath or
affirmation because the language of the affidavit clearly
manifested the intention to be under oath.
¶10 The circuit court heard the motion on stipulated facts
and orally denied Moeser's motion to suppress. The circuit
court found that "the language in the affidavit
indicates . . . that Sergeant Brown swore to the truth of the
information provided in the affidavit." It found that "Sergeant
Brown did realize that he was swearing to the truth of what he
indicated in his affidavit." The circuit court denied Moeser's
motion and subsequently memorialized that ruling by written
5
No. 2019AP2184-CR
order. The order stated, "The motion to suppress blood test
evidence based upon noncompliance with the oath requirement is
denied." Thereafter, Moeser pled guilty to OWI sixth offense,
and was sentenced.
¶11 Moeser filed a notice of appeal, and the court of
appeals affirmed. Moeser, No. 2019AP2184-CR. The court of
appeals concluded that Sergeant Brown's affidavit was not
constitutionally defective. Id., ¶22.
¶12 Moeser petitioned this court for review, which we
granted.
II. STANDARD OF REVIEW
¶13 "Review of a decision denying a motion to suppress"
under the Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution "presents a
question of constitutional fact." State v. Coffee, 2020 WI 53,
¶19, 391 Wis. 2d 831, 943 N.W.2d 845. Under a two-step standard
of review, we first "uphold a circuit court's findings of
historic fact unless they are clearly erroneous." State v.
Dumstrey, 2016 WI 3, ¶13, 366 Wis. 2d 64, 873 N.W.2d 502. We
then "independently apply constitutional principles to those
facts." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302,
786 N.W.2d 463.
¶14 This case also requires us to interpret statutes.
"Interpretation of a statute is a question of law that we review
de novo, although we benefit from the analyses of the circuit
court and the court of appeals." Est. of Miller v. Storey, 2017
WI 99, ¶25, 378 Wis. 2d 358, 903 N.W.2d 759.
6
No. 2019AP2184-CR
III. ANALYSIS
¶15 On appeal, Moeser does not challenge whether there was
probable cause to arrest him, nor does he challenge that there
was probable cause in the affidavit. Rather, he argues that
Sergeant Brown was not administered any oath or affirmation and,
therefore, the warrant is constitutionally defective. The State
responds that the oath or affirmation requirement was met
because Sergeant Brown swore to or affirmed the facts of the
affidavit. In other words, the State asserts that Sergeant
Brown manifested "the intent to be bound by his . . . statement
under circumstances that emphasize the need to tell the truth."
¶16 In analyzing these arguments, we will first discuss
the oath or affirmation requirement under the United States and
Wisconsin constitutions. We then turn to relevant case law.
After that, we analyze Wisconsin Statutes' oath or affirmation
requirements. In short, these sources lead to the conclusion
that Sergeant Brown's affidavit survives constitutional
scrutiny.
A. Constitutional Requirements
¶17 The United States and Wisconsin constitutions protect
and guarantee that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
7
No. 2019AP2184-CR
affirmation."5 U.S. Const. amend. IV; accord Wis. Const. art. I,
§ 11. Consequently, an oath or affirmation is an "essential
prerequisite to the issuance of a valid search warrant" under
both our state and federal constitutions. Tye, 248 Wis. 2d 530,
¶13 (quoting State v. Baltes, 183 Wis. 545, 552, 198 N.W.2d 282
(1924)). When it comes to the administration of an oath or
affirmation, neither constitution requires that specific
language or procedure be used.
¶18 The terms "oath" and "affirmation" have long been
understood broadly and require no specific language or
procedure. In the 1744 case of Omychund v. Barker, Lord Chief
Baron Parker of the English Exchequer of Pleas expressed a broad
view of oaths: "[An oath's] forms are various. . . . It is plain
that by the policy of all countries, oaths are to be
administered to all persons according to their own opinion, and
as it most affects their conscience . . . ." Omychund v.
Barker, 26 Eng. Rep. 15, 29 (High Ct. Ch. 1744). Accordingly,
the court held that a member of the Hindu6 religion could swear
an oath before testifying according to his own custom. Id. at
"Historically, we generally have interpreted Article I,
5
Section 11 [of the Wisconsin Constitution] to provide the same
constitutional guarantees as the Supreme Court has accorded
through its interpretation of the Fourth Amendment." State v.
Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598.
The English Exchequer of Pleas used a now derogatory term
6
which referred to members of the Hindu religion. See Gentoo,
Oxford English Dictionary (3d ed. 2021) (a "[n]ow historical and
rare" term describing "[a] non-Muslim inhabitant of Hindustan or
India; a Hindu"). We instead use the term "Hindu."
8
No. 2019AP2184-CR
27-34. Whereas the court's usual custom was "use of the
corporal ceremony, the kissing of the Evangelists," Hindus were
permitted to swear oaths by touching the foot of a Hindu priest.
Id. at 15, 21. In 1788, the High Court of Errors of
Pennsylvania echoed this broad view. Lewis v. Maris, 1 U.S. (1
Dall.) 278, 288 (Pa. Ct. Err. & App. 1788) (recognizing oath as
valid regardless of the precise ceremony performed).
¶19 During the Founding era, an "oath" was "an affirmation
or denial of any thing, before one or more persons who have
authority to administer the same, for the discovery and
advancement of truth and right, calling God to witness, that the
testimony is true." Oath, Giles Jacob, A New Law Dictionary (J.
Morgan ed., 10th ed. 1782). An "affirmation" was "[a]n
indulgence allowed by law to the people called quakers, who in
cases where an oath is required from others, may make a solemn
affirmation that what they say is true; and if they make a false
affirmation, they are subject to the penalties of perjury."7
Affirmation, Jacob, supra. In fact, it was recognized during
the Founding that an "oath" could be written rather than
spoken: "Affidavit, Signifies in law an oath in writing; and to
make affidavit of a thing, is to testify upon oath." Affidavit,
7These definitions remain largely the same today. In
Black's Law Dictionary, an "oath" is "[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." Oath, Black's Law Dictionary, supra note 4. An
"affirmation" is a "solemn pledge equivalent to an oath but
without reference to a supreme being or to swearing."
Affirmation, Black's Law Dictionary, supra note 4.
9
No. 2019AP2184-CR
Jacob, supra. These definitions do not require that any
specific language or procedure be used in their administration.
¶20 "The Constitution's text does not alone resolve this
case. . . . We must therefore turn to the historical background
of the [text] to understand its meaning." Crawford v.
Washington, 541 U.S. 36, 42-44 (2004). Originating in the 17th
century, "English law required officials seeking search warrants
to swear an oath as a means of controlling the unfettered
discretion of the searcher." Tye, 248 Wis. 2d 530, ¶8. That
requirement was removed, and general warrants, or Writs of
Assistance, were prone to abuse. Id. In Gray v. Paxton, 1
Quincy 541 (Mass. Super. Ct. 1761), a case involving Writs of
Assistance, Boston attorney James Otis Jr. delivered a five-hour
speech where he criticized, among other things, this lack of an
oath requirement: "Their menial servants may enter, may break
locks, bars, and everything in their way; and whether they break
through malice or revenge, no man, no court can inquire. Bare
suspicion without oath is sufficient." James Otis Jr., Against
Writs of Assistance (Feb. 24, 1761). Among those in the
audience was John Adams, who described the speech as having
"breathed into this nation the breath of life" and "the first
scene of opposition to the arbitrary claims of Great Britain.
Then and there the child Independence was born." Charles
Francis Adams, The Life and Works of John Adams 276 (1856).
¶21 Accordingly, many states adopted oath or affirmation
requirements in their constitutions. For example, Maryland's
10
No. 2019AP2184-CR
constitution provided a very general procedure for administering
oaths:
That the manner of administering an oath to any
person, ought to be such as those of the religious
persuasion, profession or denomination of which such
person is one, generally esteem the most effectual
confirmation, by the attestation of the Divine Being.
And that the people . . . holding it unlawful to take
an oath on any occasion, ought to be allowed to make
their solemn affirmation, in the manner that quakers
have been heretofore allowed to affirm . . . .
Md. Const. Decl. of Rts. art. XXXVI (1776). In contrast,
Pennsylvania's constitution adopted no general procedure but did
require certain specific oaths, such as for public
officials: "I . . . do swear (or affirm) that I will faithfully
execute the office of . . . for the . . . of . . . and will do
equal right and justice to all men, to the best of my judgment
and abilities, according to law." Pa. Const. § 40 (1776).
Similarly, in its first act, Congress prescribed the language
and procedure to fulfill the requirement under Article VI,
Section 3 that senators and representatives "be bound by Oath or
Affirmation, to support this Constitution." That act stated:
That the oath or affirmation required by the sixth
article of the Constitution of the United States,
shall be administered in the form following, to wit,
"I, A.B. do solemnly swear or affirm (as the case may
be) that I will support the Constitution of the United
States." The said oath or affirmation shall be
administered within three days after the passing of
this act, by any one member of the Senate, to the
President of the Senate, and by him to all the members
and to the Secretary . . . .
An Act to Regulate the Time and Manner of Administering Certain
Oaths, ch. 1, § 1, 1 Stat. 23 (1789). These examples
11
No. 2019AP2184-CR
demonstrate a broad spectrum of how specific an oath requirement
could be. The Founders knew how to write a more demanding oath
or affirmation requirement. However, they did not do so in the
Constitution's oath or affirmation requirement.
¶22 The historical background and definitions show that
the Fourth Amendment requirement was meant to prohibit warrants
that are not supported by any oath or affirmation at all, such
as Writs of Assistance. However, there is no indication that
any specific language or procedure is necessary. Where the
founding generation believed that specific words or procedures
were required to fulfil an oath requirement, the text said so.
Absent an express statement to the contrary, oaths were broadly
understood——an oath could include an affidavit, swearing before
God, or even touching a priest's feet.
¶23 In short, the words "oath" and "affirmation" are not
specifically defined in the language of either the United States
or Wisconsin constitutions, nor does either constitution mandate
that any specific language or procedure be used in oath or
affirmation administration.
B. Case Law
¶24 We next turn to constitutional oath or affirmation
requirements in case law. The constitutional analysis in case
law similarly does not support Moeser's call for rigid oath or
affirmation administration requirements. Instead, case law
consistently elevates substance over form when it comes to the
administration of an oath or affirmation, and courts across the
12
No. 2019AP2184-CR
country have declined to impose rigid rules, "magic words"
requirements, or formal procedures.
¶25 Whether the constitutional oath or affirmation
administration requirement is rigid and specific was previously
considered in State v. Tye, where we concluded that the
requirement "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. In Tye, an
investigator drafted an affidavit in support of a search warrant
application but never took an oath or affirmation and also
failed to sign the affidavit. Id., ¶¶4-5. Nonetheless, a
judicial officer issued the warrant, and the search was
conducted. Id., ¶¶5-6. The defense successfully sought to
suppress the evidence obtained. Id., ¶2.
¶26 On appeal, because the affidavit in Tye was completely
lacking, we affirmed the suppression. The court nonetheless
recognized that "[t]he purpose of an oath or affirmation is to
impress upon the swearing individual an appropriate sense of
obligation to tell the truth." Id., ¶19. Tye rejected the
call to impose rigid rules or magic words to govern the
administration of oaths or affirmations. Id.; see also State v.
Johnson, No. 2019AP1398-CR, unpublished slip op., ¶33 (Wis. Ct.
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
13
No. 2019AP2184-CR
legislature has proved in Wis. Stat. § 906.03(2) and
(3). . . . [H]owever, the failure to do so in this case did not
invalidate the search warrant.") (footnote omitted) (quoting
Tye, 248 Wis. 2d 530, ¶19).
¶27 We note that Tye's interpretation of the Fourth
Amendment oath or affirmation requirement is consistent with
oath or affirmation administration in non-Fourth Amendment
contexts. The court of appeals in this case relied heavily upon
Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995), a
civil case. Moeser, No. 2019AP2184-CR, ¶¶19-23. While not
inconsistent with the principles in Tye, Kellner is nonetheless
distinguishable because constitutional oath or affirmation
requirements were never argued or considered. Kellner is also
distinguishable because it was based upon a specific statute
which is inapplicable here. That statute concerned a
requirement that claims against state employees be "sworn."
Kellner, 197 Wis. 2d at 194. The statute had the purpose of
ensuring that the attorney general could effectively review
claims in a timely and cost-effective manner. Id. Kellner,
however, did reiterate that the oath must "impress the person
who takes the oath with a due sense of obligation" to tell the
truth. Id. at 192.
¶28 As a result, Wisconsin case law broadly recognizes
that "[t]he purpose of an oath or affirmation is to impress upon
the swearing individual an appropriate sense of obligation to
tell the truth." Tye, 248 Wis. 2d 530, ¶19. There are no rigid
14
No. 2019AP2184-CR
requirements or magic words. It is a matter of substance, not
form.
¶29 Moeser spends much of his argument attempting to
distinguish United States v. Brooks, 285 F.3d 1102 (8th Cir.
2002), and United States v. Fredericks, 273 F. Supp. 2d 1032
(D.N.D. 2003), both of which found the oath or affirmation
requirement satisfied. He argues that the cases are
distinguishable because Sergeant Brown's affidavit uses
different words than the affidavits in those cases. He also
argues that those cases are distinguishable because Sergeant
Brown did not personally present the affidavit to the judicial
officer. However, Moeser's arguments elevate form over
substance, failing to acknowledge that "[t]he purpose of an oath
or affirmation is to impress upon the swearing individual an
appropriate sense of obligation to tell the truth." Tye, 248
Wis. 2d 530, ¶19.
¶30 In Brooks, the Eighth Circuit concluded that, despite
not being given an oral oath, the affiant officer was deemed to
be under oath because:
[H]e intended to undertake and did undertake that
obligation by the statements 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.
Brooks, 285 F.3d at 1106; see also 3 Am. Jur. 2d Affidavits § 7
(2022) ("It is not essential that the affiant should hold up his
hand and swear in order to make his act an oath, but it is
sufficient if both affiant and the officer understand that what
15
No. 2019AP2184-CR
is done is all that is necessary to complete the act of
swearing.").
¶31 The court in Fredericks, like Brooks, concluded that a
person may be deemed to be under oath in the absence of a raised
hand or oral recitation:
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 [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.
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,
[the officer'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 [the officer] signed the
document upon presentation to the tribal court and
[the judge] attested that the Affidavit was sworn to
and subscribed by [the officer] in her presence.
16
No. 2019AP2184-CR
The nature of the document as well as [the
officer's] attendant conduct indicates that [the
officer] realized that he was swearing to the truth of
what he said. [His] recitation that he was "duly
sworn" reflects his intention to be under oath. [His]
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 [the
officer] 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 1037–38.8
¶32 Professor Wayne LaFave has instructed that, "No
particular ceremony is necessary to constitute the act of
swearing . . . . It 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." 2 Wayne R. LaFave, et al.,
Criminal Procedure § 3.4(c) (4th ed. 2021) (footnotes omitted)
(quoting Simon v. State, 515 P.2d 1161, 1165 (Okla. Crim. App.
1973)). Several federal cases are in accord that "a person who
manifests an intention to be under oath is in fact under oath."
Brooks, 285 F.3d at 1105; accord United States v. Bueno-Vargas,
383 F.3d 1104, 1111 (9th Cir. 2004) (holding that "signing a
statement under penalty of perjury satisfies the standard for an
8 Moeser also finds Brooks and Fredericks distinguishable
because here the Sheriff's Office had a procedure that did not
require administering an oral oath, which the State conceded was
erroneous. However, "we are not bound by the parties'
interpretation of the law or obligated to accept a party's
concession of law." State v. Carter, 2010 WI 77, ¶50, 327
Wis. 2d 1, 785 N.W.2d 516. Regardless, this does not affect our
conclusion that the facts and circumstances overall demonstrate
that Sergeant Brown was impressed with the need to tell the
truth.
17
No. 2019AP2184-CR
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"); United
States v. Richardson, 943 F.2d 547, 549 (5th Cir. 1991) (holding
a statement was not an oath or affirmation because it "did not
manifest a recognition of [the affiant's] duty to speak the
truth"); United States v. Mensah, 737 F.3d 789, 805-06 (1st Cir.
2013) (requiring no verbal act to find a defendant "under oath"
for purposes of perjury).
¶33 Similarly, contrary to Moeser's arguments, numerous
state court jurisdictions decline to impose rigid rules or
procedures, instead concluding that the oath requirement is a
matter of substance over form. See, e.g., Atwood, 111 So. at
866 ("The form of the oath is immaterial so long as it appeals
to the conscience of the party making it, and binds him to speak
the truth."); State v. Kemp, 20 P.2d 499, 500 (Kan. 1933)
(affiant not formally sworn but deemed to have been sworn when
he completed an affidavit before a notary); Farrow v. State, 112
P.2d 186, 190 (Okla. Crim. App. 1941) (deputy who was not
formally sworn, but read and signed an affidavit, deemed to be
under oath); State v. Knight, 995 P.2d 1033, 1041-42 (N.M. Ct.
App. 2000) ("[T]he important nature of the affidavits in this
instance and [the officer's] exercise of the formalities in
completing the affidavits sufficiently fulfilled the
requirements of an oath or affirmation."); State v. Douglas, 428
P.2d 535, 538-39 (Wash. 1967) (no formal oath orally
administered but text of affidavit nonetheless showed
18
No. 2019AP2184-CR
constitutional compliance); State v. Gutierrez-Perez, 337 P.3d
205, ¶¶4, 28 (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").
¶34 Courts in many other jurisdictions, including Alaska,
California, Idaho, Iowa, Louisiana, Minnesota, Nebraska, New
Jersey, Ohio, and South Carolina, "have held that a verbal
admonishment is not necessary to constitute an 'oath.'" People
v. Ramos, 424 N.W.2d 509, 519 n.36 (Mich. 1988) (collecting
cases); Blackburn v. Motor Vehicles Div., 576 P.2d 1267, 1269-70
(Or. Ct. App. 1978) (also collecting cases) ("[M]erely signing a
form of affidavit in the presence of a notary or an official
authorized to administer an oath is sufficient.").
¶35 This survey of case law hence confirms that no
particular "magic words" or specific procedures are
constitutionally required in order for an individual to be
deemed to be under oath. Instead, cases elevate substance over
form, recognizing that "[t]he purpose of an oath or affirmation
is to impress upon the swearing individual an appropriate sense
of obligation to tell the truth."9 Tye, 248 Wis. 2d 530, ¶19.
9 Two other cases Moeser cites as supporting more rigid
requirements are State v. Hodges, 595 S.W.3d 303 (Tex. Ct. App.
2020), and Markey v. State, 37 So. 53 (Fla. 1904). In Hodges,
the Texas Court of Appeals held that an officer who completed an
affidavit before a notary did not satisfy the oath or
affirmation requirement because there was no oral oath. Hodges,
19
No. 2019AP2184-CR
¶36 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. When the facts or circumstances indicate
that the oath or affirmation was administered "in a form
calculated to awaken the [swearing individual's] conscience and
impress [his or her] mind with [his or her] duty to [tell the
truth]," then the oath or affirmation requirement is satisfied.
Wis. Stat. § 906.03(1). In other words, we reaffirm the
principle that "[t]he purpose of an oath or affirmation is to
impress upon the swearing individual an appropriate sense of
595 S.W.3d at 305–06. Though the affidavit stated that the
affiant was "duly sworn," and the jurat said, "after being sworn
by me," the court concluded that these statements were false
because no oral oath was taken. Id. at 306. Wisconsin case law
and many other federal and state cases do not support the rigid
standard outlined in Hodges. Unlike Wisconsin's case law,
Hodges appears to prioritize form over substance, and we decline
to adopt that new standard.
As for the Florida Supreme Court's decision in Markey, that
case is distinguishable. The issue in Markey was whether the
defense could cross-examine witnesses to show that a defendant
charged with perjury was not under oath. Markey, 37 So. at 59-
60. The court's narrow ruling was that the phrase, "being duly
sworn," was not conclusive proof of an oath for purposes of a
criminal jury trial. Id. In fact, Markey recognized more
generally that "[w]hile the oath must be solemnly administered,
and by an officer duly authorized, it is immaterial in what form
it is given." Id. at 59 (quoting 2 Francis Wharton & William
Draper Lewis, A Treatise on Criminal Law § 1251 (1896)).
20
No. 2019AP2184-CR
obligation to tell the truth." Tye, 248 Wis. 2d 530, ¶19.
After all, "[a]n oath is a matter of substance, not form."10 Id.
C. Statutory Requirements
¶37 We next address the Wisconsin Statutes. Given the
lack of specific constitutional requirements, we consider
whether the Legislature has provided for even greater protection
than that in the Constitution. However, Wisconsin Statutes
likewise do not require any specific language or procedure for
oath or affirmation administration.
¶38 For example, Wis. Stat. § 906.03, titled "Oath or
affirmation," sets forth the following requirements for
witnesses testifying:
(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
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
As
10 Professor Wayne LaFave explains, "Whether the
information is transmitted orally or in writing, the 'Oath or
affirmation' requirement means the information must be sworn to.
'No particular ceremony is necessary to constitute the act of
swearing.'" 2 Wayne R. LaFave, et al., Criminal Procedure
§ 3.4(c) (4th ed. 2021) (footnotes omitted) (quoting Simon v.
State, 515 P.2d 1161, 1165 (Okla. Crim. App. 1973)).
21
No. 2019AP2184-CR
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.
§ 906.03 (emphases added). This statute repeatedly employs the
flexible language, "may," when it considers the administration
of an oath to a witness. Even though § 906.03 provides sample
language in two potential versions which "may" be used in the
administration of an oath or affirmation, it requires neither.
The statute requires only that an oath or affirmation be "in a
form calculated to awaken the witness's conscience and impress
the witness's mind with the witness's duty to [testify
truthfully]." § 906.03(1).
¶39 Similarly, Wis. Stat. § 887.03, titled "Oath, how
taken," states, "Any oath or affidavit required or authorized by
law 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." § 887.03 (emphases added).
The language remains substantially the same since first enacted
in 1849, shortly after our state constitution was ratified.11
Wisconsin Stat. § 887.03 was first enacted as Wis. Stat.
11
ch. 99, § 6 in 1849:
In all cases in which an oath or affidavit is
required or authorized by law, the same 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, and to be guilty
22
No. 2019AP2184-CR
This statute continues to provide considerable flexibility, as
an oath or affirmation "may" be taken in any of the "usual
forms." It also references that there are occasions where one
may be "deemed to have" taken an oath: "every person swearing
or declaring in any such form shall be deemed to have been
lawfully sworn." As a result, § 887.03 declines to impose rigid
rules governing oath administration.
¶40 More specifically, Wis. Stat. § 968.12, titled "Search
warrant," states:
(2) Warrant upon affidavit. A search warrant
may be based upon sworn complaint or affidavit, or
testimony recorded by a phonographic reporter or under
sub. (3)(d), 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 search warrant that the person so swore to the
complaint or affidavit.
§ 968.12(2) (emphases added).12 This statute, by its language,
also does not impose particular language or a specific procedure
of perjury for corruptly or falsely swearing,
affirming or declaring in any such form.
The only major difference is the current version no longer
includes the crime of perjury. That now exists under Wis. Stat.
§ 946.31(1).
12 Wisconsin Stat. § 968.12 also provides:
(1) Description and issuance. A search warrant
is an order signed by a judge directing a law
23
No. 2019AP2184-CR
for oath administration. In fact, it uses the permissive word,
"may," concerning warrants based upon an affidavit. Id.
¶41 In short, the Wisconsin Statutes also do not invoke
specific, mandated language or formulaic procedures in the
administration of an oath or affirmation.
D. Facts and Circumstances
¶42 We next consider the facts and circumstances in this
case and conclude that Sergeant Brown satisfied the
constitutional oath or affirmation requirement. Sergeant
Brown's act of testifying to the court in the form of the
affidavit was "calculated to awaken [Sergeant Brown's]
conscience and impress [his] mind with [his] duty [to tell the
truth]." Wis. Stat. § 906.03(1). We agree with the circuit
court's conclusion that "the language in the affidavit
indicates . . . that Sergeant Brown swore to the truth of the
information provided in the affidavit." The facts in this case
enforcement officer to conduct a search of a
designated person, a designated object or a designated
place for the purpose of seizing designated property
or kinds of property. A judge shall issue a search
warrant if probable cause is shown.
. . . .
(3) Warrant upon oral testimony.
(a) General rule. A search warrant may be based
upon sworn oral testimony communicated to the judge by
telephone, radio or other means of electronic
communication, under the procedure prescribed in this
subsection.
§ 968.12(1), (3)(a).
24
No. 2019AP2184-CR
further support that Sergeant Brown was sufficiently impressed
with his duty to tell the truth.
¶43 We consider the language in the "AFFIDAVIT" Sergeant
Brown signed.13 To review, the first sentence includes Sergeant
Brown's handwritten name and states, "being first duly sworn on
oath, deposes and says." The first sentence of the second
paragraph says, "I have personal knowledge that the contents of
this affidavit are true." Sergeant Brown then personally penned
the probable cause section, detailing facts specific to Moeser's
arrest. Sergeant Brown signed and dated the affidavit directly
above the jurat and indicated that the affidavit was completed
at the hospital. Lieutenant Wills signed and dated the jurat as
"Subscribed and sworn to before me," and affixed his notary
seal.
¶44 "The purpose of an oath or affirmation is to impress
upon the swearing individual an appropriate sense of obligation
to tell the truth." Tye, 248 Wis. 2d 530, ¶19. The language in
Sergeant Brown's affidavit, his signature, and Lieutenant Wills'
notarization satisfy this requirement. Sergeant Brown wrote his
name below the title, "AFFIDAVIT," and next to the words, "being
13An affidavit is, by definition, a sworn statement. See
Affidavit, Giles Jacob, A New Law Dictionary (J. Morgan ed.,
10th ed. 1782) ("Affidavit, Signifies in law an oath in writing;
and to make affidavit of a thing, is to testify upon oath.");
Affidavit, The American Heritage Dictionary of the English
Language 29 (3d ed. 1992) ("A written declaration made under
oath before a notary public or other authorized officer.");
Affidavit, Black's Law Dictionary, supra note 4 ("A voluntary
declaration of facts written down and sworn to by a declarant,
usually before an officer authorized to administer oaths.").
25
No. 2019AP2184-CR
first duly sworn on oath, deposes and says," both of which
impressed that he was signing a sworn statement. Just two
paragraphs down, the affidavit contained a statement expressly
affirming that "the contents of this affidavit are true."
Sergeant Brown completed the affidavit by verifying its contents
with his signature just above the jurat, which again reminded
him that the document was "sworn." Finally, in Sergeant Brown's
presence, Lieutenant Wills further impressed the seriousness of
the occasion by notarizing the affidavit.14 The words in the
affidavit impressed Sergeant Brown with the duty to tell the
truth.15 This placed Sergeant Brown under oath or affirmation
and subjected him to the possibility of criminal penalty for
14Moeser makes much of the fact that Sergeant Brown did not
himself swear before or present the affidavit to a judge.
However, no constitutional language requires that procedure.
Though it is "necessary that something be done in the presence
of the magistrate issuing the search warrant," this requirement
"should not be read literally, for 'Oath or affirmation' for
Fourth Amendment purposes does not require a face-to-face
confrontation between affiant and magistrate. Nor does it mean
that a swearing before a notary or court clerk is insufficient."
LaFave, et al., supra note 10, § 3.4(c) & n.51 (citations
omitted); see also Oath, Jacob, supra note 13 (emphasis added)
("Oath . . . [i]s an affirmation or denial of any thing, before
one or more persons who have authority to administer the
same . . . ."); 3 Am. Jur. 2d Affidavits § 7 (2022) (footnotes
omitted) ("The affiant must swear to the affidavit, and the fact
of swearing must be certified by a proper officer. The notary
and affiant must be present together for giving of oath."); Wis.
Stat. § 968.12(2) ("The person requesting the warrant may swear
to the complaint or affidavit before a notarial officer . . . or
before a judge . . . .").
15Moeser argues that Sergeant Brown's use of a preprinted
form undermines the solemnness. This argument too elevates the
affidavit's form over its substance.
26
No. 2019AP2184-CR
false swearing if he knowingly lied. See Wis. Stat.
§ 946.32(2); LaFave et al., supra ¶32 (quoting Simon, 515 P.2d
at 1165) ("[T]he 'true test' is whether the procedures followed
were such 'that perjury could be charged therein if any material
allegation contained therein is false.'").
¶45 The case law supports this conclusion. Sergeant
Brown's affidavit contains far more than the affidavit in Tye,
where the oath or affirmation requirement was not satisfied
because the officer failed to either sign or swear to the truth
of the affidavit. See Tye, 248 Wis. 2d 530, ¶5.
¶46 As a result, given that "[t]he purpose of an oath or
affirmation is to impress upon the swearing individual an
appropriate sense of obligation to tell the truth," the facts
and circumstances here demonstrate that Sergeant Brown executed
this affidavit "in a form calculated to awaken [Sergeant
Brown's] conscience and impress [his] mind with [his] duty to
[tell the truth]." Tye, 248 Wis. 2d 530, ¶19; Wis. Stat.
§ 906.03(1). This substance must be elevated over Moeser's
complaints regarding form.
IV. CONCLUSION
¶47 Moeser challenges the warrant which compelled him to
submit to a blood draw. He argues that the warrant is
constitutionally defective because the affiant was not placed
under oath or affirmation when he signed the affidavit which
accompanied the warrant application. According to Moeser, this
omission failed to satisfy the requirement under the Fourth
Amendment to the United States Constitution and Article I,
27
No. 2019AP2184-CR
Section 11 of the Wisconsin Constitution that warrant
applications be "supported by oath or affirmation." As a
result, he argues that the circuit court erroneously denied his
motion to suppress evidence and that the court of appeals erred
in affirming that decision.
¶48 We conclude that the affidavit fulfilled the oath or
affirmation requirement under the United States and Wisconsin
constitutions because "[t]he purpose of an oath or affirmation
is to impress upon the swearing individual an appropriate sense
of obligation to tell the truth," and here the officer was
impressed with that obligation. Tye, 248 Wis. 2d 530, ¶19;
accord U.S. const. amend. IV; Wis. Const. art. I, § 11. In
other words, the constitutional guarantee is satisfied because
the facts and circumstances demonstrate that Sergeant Brown
executed this affidavit "in a form calculated to awaken
[Sergeant Brown's] conscience and impress [his] mind with [his]
duty to [tell the truth]." Wis. Stat. § 906.03(1); accord Tye,
248 Wis. 2d 530, ¶19. The United States and Wisconsin
constitutions do not require that any specific language or
procedure be employed in the administration of an oath or
affirmation. Instead, constitutional requirements, relevant
case law, and the Wisconsin Statutes all indicate that the oath
or affirmation requirement is an issue of substance, not form.
Here, the facts sufficiently demonstrate that the constitutional
right to be free from abusive governmental searches is
satisfied. Therefore, the circuit court did not err in denying
28
No. 2019AP2184-CR
Moeser's motion to suppress, and the court of appeals is
affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
29
No. 2019AP2184-CR.bh
¶49 BRIAN HAGEDORN, J. (concurring). The Fourth
Amendment requires that for a warrant to issue, it must be
"supported by Oath or affirmation." U.S. Const. amend. IV. The
majority opinion explains that neither the amendment's text nor
its original understanding mandate that an oath or affirmation
follow a particular form. Rather, the historical record
suggests that the Fourth Amendment's oath or affirmation
requirement is satisfied when an affiant: (1) knowingly and
intentionally makes a statement; (2) affirms, swears, or
declares that the information in the statement is true; and (3)
does so under circumstances that impress upon the affiant the
obligation to tell the truth.1
¶50 In this case, Sergeant Brown made a statement——the
affidavit——in which he affirmed he had "personal knowledge that
the contents of this affidavit are true . . . ." And by signing
the statement before a notary with knowledge it would be
presented to a magistrate——implicating the potential
consequences of swearing falsely——Sergeant Brown acted under
circumstances that impressed upon him the solemn obligation to
tell the truth. This was enough to pass constitutional muster——
but not by much.
1See State v. Gutierrez-Perez, 337 P.3d 205, ¶19 (Utah
2014); see also United States v. Turner, 558 F.2d 46, 50 (2d
Cir. 1977) (defining an oath or affirmation as a "formal
assertion of, or attestation to, the truth of what has been, or
is to be, said."); Affirmation, Giles Jacob, A New Law
Dictionary (J. Morgan ed., 10th ed. 1782) (defining an
affirmation as a "[s]olemn affirmation that what they [s]ay is
true").
1
No. 2019AP2184-CR.bh
¶51 Although I disagree with its ultimate conclusion, the
dissent offers strong counterarguments that call the sufficiency
of the oath into question. In particular, the affidavit could
be read to suggest a separate oath had already taken place, when
the record is clear that it did not. I do not view this
sloppiness as fatal for the reasons already described, but law
enforcement should ensure the procedures employed to obtain
warrants are clear and consistent. While the oath requirement
is not a high bar, it is a constitutional prerequisite to
obtaining a warrant. Giving careful attention to this
requirement ensures searches are conducted in a manner that
respect constitutional rights and do not risk undermining
otherwise lawful efforts to collect evidence. Accordingly, I
concur with and join the majority opinion.
¶52 I am authorized to state that Justice JILL J. KAROFSKY
joins this concurrence.
2
No. 2019AP2184-CR.awb
¶53 ANN WALSH BRADLEY, J. (dissenting). The oath or
affirmation requirement is not simply a matter of good practice.
It is a constitutional imperative and an essential check on
governmental power.
¶54 The majority states that the purpose of the oath or
affirmation requirement is to "impress upon the swearing
individual an appropriate sense of obligation to tell the
truth." Majority op., ¶3 (citing State v. Tye, 2001 WI 124,
¶19, 248 Wis. 2d 530, 636 N.W.2d 473). Yet in this case, 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.
¶55 The majority forgives this untruth, concluding that,
despite the first sentence of the affidavit being false, somehow
Sergeant Brown's conscience was "awakened" and his mind was
"impressed" with the duty to tell the truth. Id. In essence,
"good enough under the circumstances," says the majority.
¶56 But the question is not whether it is "good enough
under the circumstances." Rather, the threshold question is:
what is required under the warrant clause of both the United
States and Wisconsin constitutions?
¶57 Justice Scalia, although in a different context,
writing on behalf of the Court in Crawford v. Washington, faced
a similar dilemma of dueling methods sufficient to establish
reliability of testimony. He "readily concede[d]" that
admitting reliable out-of-court testimony might be a good enough
1
No. 2019AP2184-CR.awb
way to find the truth. Crawford v. Washington, 541 U.S. 36, 67
(2004). However, he observed that the Sixth Amendment of the
United States Constitution required a specific mechanism for
determining the truth: confrontation. While acknowledging that
confrontation is not the only way for getting at the truth, he
determined that it was the one and only way the Founders chose.
Id. ("The Constitution prescribes a procedure for determining
the reliability of testimony in criminal trials, and
we . . . lack authority to replace it with one of our own
devising.").
¶58 So it is here. The swearing of an oath or making an
affirmation before a judicial officer may not be the only
mechanism that is sufficiently reliable to support the requisite
probable cause for the issuance of a search warrant. It is,
however, the mechanism that the Founders chose.
¶59 The writings of a founding father and subsequent
United States Supreme Court Chief Justice, John Marshall, teach
that the oath is a "solemn requirement." Laurent Sacharoff, The
Broken Fourth Amendment Oath, 74 Stan. L. Rev. 603, 679 (2022)
(citing United States v. Burr, 25 F. Cas. 27, 28-29 (C.C.D. Va.
1807)). Yet, the majority attempts to replace this "solemn
requirement" with a malleable mechanism of its own devising.
Rather than focusing on the meaning of the words of the warrant
clause, it instead examines the purpose of the clause and the
purported intent of the affiant to determine that there was
sufficient compliance with its purpose here.
2
No. 2019AP2184-CR.awb
¶60 In my view, the majority errs when it eschews the
constitutional imperative and instead determines that the
"constitutional guarantee is satisfied" upon an examination of
Sergeant Brown's subjective intent. See majority op., ¶3. The
majority arrives at this conclusion via a flawed framework and
focus.
¶61 To the contrary, I determine that the constitutional
oath or affirmation requirement mandates more than an
examination of the affiant's intent. It commands 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.1 Because, as the majority correctly acknowledges, it is
"undisputed that he made no such oath or affirmation before the
judicial officer," id., ¶8, Sergeant Brown's affidavit does not
meet the constitutional oath or affirmation requirement. As a
consequence, the warrant is invalid and the blood draw evidence
must be suppressed.
¶62 Accordingly, I respectfully dissent.
I recognize that pursuant to Wis. Stat. § 968.12(3), "[a]
1
search warrant may be based upon sworn oral testimony
communicated to the judge by telephone, radio or other means of
electronic communication," and I do not mean to cast aspersions
on this method or suggest that it is constitutionally suspect.
A real-time interaction between an affiant and a judicial
officer by electronic means conducted pursuant to the statutory
procedures is the functional equivalent of "before a judicial
officer." Further, for purposes of "administering an oath or
affirmation," a notary, although not a judge, is a "judicial
officer." See Wis. Stat. § 140.01(7).
3
No. 2019AP2184-CR.awb
I
¶63 In the early morning hours of October 14, 2017,
Sergeant Steven Brown stopped Jeffrey Moeser for suspected
operating while intoxicated (OWI). Majority op., ¶4. After
conducting field sobriety tests, as well as a preliminary breath
test, Sergeant Brown transported Moeser to the hospital for a
blood draw. Id.
¶64 At the hospital, Moeser refused to consent to the
blood draw.2 Id., ¶5. As a consequence, Sergeant Brown sought a
search warrant. Id. To support his warrant application,
Sergeant Brown completed a fill-in-the-blank form entitled,
"Affidavit."
¶65 Sergeant Brown filled in his name in the blank space
appearing before the pre-printed text, that stated, "being first
duly sworn on oath, deposes and says." Id., ¶6. The affidavit
further set forth that Sergeant Brown "ha[s] 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." Id. He signed and
dated the affidavit in the presence of his colleague, Lieutenant
As is his constitutional right. State v. Prado, 2021 WI
2
64, ¶47, 397 Wis. 2d 719, 960 N.W.2d 869 (explaining that "a
person has a constitutional right to refuse a search absent a
warrant or an applicable exception to the warrant requirement").
4
No. 2019AP2184-CR.awb
Jacob Wills, a notary public. The notary's jurat3 includes the
phrase, "Subscribed and sworn to before me."
¶66 However, it is undisputed that Sergeant Brown made no
oral oath or affirmation before signing the affidavit, and he
made no oath or affirmation before any judicial officer. Id.,
¶8. Despite this shortcoming, a judicial officer approved the
warrant application and Moeser's blood was drawn. Id., ¶¶6-7.
¶67 Moeser later moved to suppress the blood draw
evidence, arguing that the warrant did not satisfy the
constitutional oath or affirmation requirement. Id., ¶8. The
circuit court denied the motion, indicating that "Sergeant Brown
did realize that he was swearing to the truth of what he
indicated in his affidavit."
¶68 Subsequently, Moeser appealed, and the court of
appeals affirmed the circuit court's decision over Judge
Kloppenburg's dissent. State v. Moeser, No. 2019AP2184-CR,
unpublished slip op. (Wis. Ct. App. June 24, 2021). The court
of appeals concluded that "the affidavit satisfied the
requirement that search warrants be supported by oath or
affirmation." Id., ¶1.
¶69 Judge Kloppenburg dissented. Observing that "it is
undisputed that Sergeant Brown did not swear to the truthfulness
of the statements in the affidavit before either the notary or
3"'Jurat' is the name given to a notary's written
certificate, which should appear after the signature of a person
who has given an oath, or has made a sworn statement." Estate
of Hopgood ex rel. Turner v. Boyd, 2013 WI 1, ¶4 n.4, 345
Wis. 2d 65, 825 N.W.2d 273.
5
No. 2019AP2184-CR.awb
the court commissioner" and that relevant statutes and case law
"plainly require that the truth of an affidavit supporting a
warrant must be sworn to before either a notary or a judge,"
Judge Kloppenburg determined that "the warrant is void." Id.,
¶42 (Kloppenburg, J., dissenting).
¶70 The majority now affirms the court of appeals. It
reasons "that the affidavit fulfilled the oath or affirmation
requirement under the United States and Wisconsin constitutions
because '[t]he purpose of an oath or affirmation is to impress
upon the swearing individual an appropriate sense of obligation
to tell the truth,' and here the officer was impressed with that
obligation." Majority op., ¶3. In the majority's view, "the
constitutional guarantee is satisfied because the facts and
circumstances demonstrate that Sergeant Brown executed this
affidavit 'in a form calculated to awaken [Sergeant Brown's]
conscience and impress [his] mind with [his] duty to [tell the
truth]." Id. The majority continues: "The United States and
Wisconsin constitutions do not require that any specific
language or procedure be employed in the administration of an
oath or affirmation. Instead, constitutional requirements,
relevant case law, and Wisconsin Statutes all indicate that the
oath or affirmation requirement is an issue of substance, not
form." Id.
II
¶71 Although there is disagreement in constitutional
analyses about how much weight should be given to the original
meaning of the constitutional text, there appears a general
6
No. 2019AP2184-CR.awb
agreement that, no matter the approach, it deserves some weight
and matters at least to some degree. See Thomas Y. Davies,
Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547,
742-45 (1999). Accordingly, I begin by focusing my analysis on
three primary sources in determining the meaning of the
constitutional oath or affirmation provision: the plain
language of the text, the constitutional debates and practices
of the time, and the earliest interpretations and applications
of the provision.4
¶72 I do not endeavor to provide an exegesis discussing
these sources. Rather, the discussion below provides an
abbreviated review sufficient to support the conclusion that
Sergeant Brown's affidavit does not meet the constitutional
imperative that an oath or affirmation actually take place. For
additional support, I also examine relevant modern case law and
statutes.
A
¶73 The text of the Fourth Amendment to the United States
Constitution provides that "no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation." This
4 Although I recognize that a historical inquiry is
established in our case law, see, e.g., Appling v. Walker, 2014
WI 96, ¶7, 358 Wis. 2d 132, 853 N.W.2d 888; Dairyland Greyhound
Park, Inc. v. Doyle, 2006 WI 107, ¶19, 295 Wis. 2d 1, 719
N.W.2d 408, I nevertheless am wary of a legal analysis that puts
a court in the position of amateur historian. Such a framework
is ripe for cherry-picking historical evidence that supports a
favored conclusion. See State v. C.G., 2022 WI 60, ¶111, 403
Wis. 2d 229, 976 N.W.2d 318 (Ann Walsh Bradley, J., dissenting)
(quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)); see
generally Erwin Chemerinsky, Worse Than Nothing (2022).
7
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requirement is echoed by the Wisconsin constitution. Wis.
Const. art. I, § 11.5
¶74 In an attempt to buttress its result, the majority
likewise looks to the text of the constitutional provision, and
specifically to definitions of "oath" from the founding era.
See majority op., ¶19. But in doing so, it often cites
authority that supports the conclusion of this dissent.
¶75 For example, the majority cites a 1782 dictionary
defining "oath" as "an affirmation or denial of any thing,
before one or more persons who have authority to administer the
same, for the discovery and advancement of truth and right,
calling God to witness, that the testimony is true." Id.
(citing Oath, Giles Jacob, A New Law Dictionary (J. Morgan ed.,
10th ed. 1782)). According to this definition, apparently
espoused by the majority, an oath must be accomplished before
one who has authority to "administer" the oath. "Administering"
an oath thus presupposes that the affiant has undertaken some
sort of action before another indicating recognition of the need
to tell the truth. Swearing an oath invokes the deity to be a
witness to the oath and risks punishment from the divine if the
truth is not told.6
Aside
5 from minor differences in punctuation and
capitalization, the Fourth Amendment and Article I, Section 11
are identical.
See Oath, Black's Law Dictionary (11th ed. 2019) (defining
6
"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"). One who falsely
swears an oath also may face legal consequences, such as
criminal charges for perjury or false swearing. See Wis. Stat.
§§ 946.31, 946.32.
8
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¶76 Other founding era dictionaries confirm the active
nature of an oath, i.e., it is something that must be done
before another. For example, a 1775 dictionary defines an
"oath," as relevant here, as "[a] solemn attestation, the form
of attestation before a magistrate, an appeal to the Divine
Being by the mention of something sacred . . . ." Oath, John
Ash, The New and Complete Dictionary of the English Language
(1775). This definition confirms that there must actually be an
"attestation," which must be accomplished "before a magistrate."
¶77 The constitutional text thus weighs against the
majority's conclusion. As will be more fully set forth below,
Sergeant Brown did nothing "before" anyone that could be called
a "solemn attestation," or that risked punishment from a deity
if the truth is not told. In essence, he did nothing
constituting an "oath" as envisioned by the constitutional
mandate, "supported by oath."
B
¶78 To further examine the meaning of the text, I turn
next to the constitutional debates at the time of the founding.
The warrant clause of the Fourth Amendment came about as a
response to Britain's use of Writs of Assistance "in the
American colonies to search wherever government officials chose
with nearly absolute and unlimited discretion." Tye, 248
Wis. 2d 530, ¶8; see also State v. Williams, 2012 WI 59, ¶17,
341 Wis. 2d 191, 814 N.W.2d 460. These writs were perceived by
the colonists as fundamental violations of the right to be
undisturbed in their person and property, and accordingly each
9
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of the state constitutions following independence guaranteed the
right to be free from unreasonable searches and seizures. Tye,
248 Wis. 2d 530, ¶9.
¶79 In the process of crafting the United States
Constitution, James Madison served as the drafter for the
federal rights amendments. His original proposed language for
the Fourth Amendment included an oath or affirmation
requirement:
The rights of the people to be secured in their
persons, their houses, their papers, and their other
property from all unreasonable searches and seizures,
shall not be violated by warrants issued without
probable cause, supported by oath or affirmation, or
not particularly describing the places to be searched,
or the persons or things to be seized.
Davies, supra ¶71, at 697 (citing James Madison, Speech to the
House of Representatives (June 8, 1789), in 12 The Papers of
James Madison 197, 201 (Robert A. Rutland et al. eds., 1977)).
¶80 The final language of the amendment likewise contained
the oath or affirmation requirement, which was not altered by a
subsequent committee report, the House, the Senate, or the state
legislatures, where it was ratified "without any apparent
controversy." Id. at 723. This consistency of the oath or
affirmation language reflects the central nature of this
requirement in the Fourth Amendment's text.
¶81 A similar series of events played out in Wisconsin.
Even prior to statehood, the territorial legislature enacted a
requirement mandating an oath in an application for a search
warrant. Tye, 248 Wis. 2d 530, ¶10. And when Wisconsin
attained statehood, it also included in its constitution an
10
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amendment protecting the people against unreasonable searches
and seizures. Like the Fourth Amendment, the initial proposed
language of Article I, Section 11 of the Wisconsin constitution
included language dictating that warrants must be "supported by
oath or affirmation." Milo M. Quaife, ed., The Attainment of
Statehood 228 (1928). This proposed language set forth:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrants to search any place or seize any person or
thing shall issue without describing, as near as may
be, nor without probable cause, supported by oath or
affirmation.
Id. Again, this language remained consistent through the
constitutional debate. Indeed, "[i]t is evident from the
debates that the adoption of Article I, Section 11 was
relatively uncontroversial . . . ." Williams, 341 Wis. 2d 191,
¶25. Accordingly, Article I, Section 11 was enshrined in our
state constitution. Tye, 248 Wis. 2d 530, ¶10. The debates
thus reflect both the central importance of the oath or
affirmation requirement and the consensus surrounding its
necessity.
¶82 An examination of the practices at the time following
adoption of these constitutional provisions further confirms
that an oath or affirmation is an "act" done before a judicial
officer.
¶83 During our nation's founding era, justices of the
peace were central to the warrant-issuing process. Indeed, they
issued the majority of warrants. Sacharoff, supra ¶59, at 623
(citing 2 Matthew Hale, Historia Placitorum Coronae: The History
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No. 2019AP2184-CR.awb
Of The Pleas Of The Crown 107 (W.A. Stokes & E. Ingersoll eds.,
Philadelphia, Robert H. Small 1st Am. ed. 1847)). These
justices of the peace relied upon published justice of the peace
manuals, which "in turn, greatly influenced the Framers and
ratifiers." Id. at 624.
¶84 The manuals for justices of the peace often contained
forms for complaints to obtain a warrant, and such forms
included standard language that a complainant "swears" to the
information therein. Id. at 630-31. "[This] warrant process
occurred before a magistrate who was required to carefully
examine and assess the witness to ensure the truth of the
allegations." Id. at 607.
¶85 Such forms setting forth standard language were also
in use in Wisconsin. See Edwin E. Bryant, A Treatise on the
Civil and Criminal Jurisdiction of Justices of the Peace, and
the Powers and Duties of Constables in Executing Process in the
State of Wisconsin 940 (1884). These forms likewise set forth a
jurat: "Subscribed and sworn to before me, this ___ day of
____, A.D. 18__, ______ ______, Justice of the Peace." Id.7 And
7 In full, an example form complaint for a search warrant in
Wisconsin's Justice of the Peace manual sets forth:
State of Wisconsin
_____ County
C.D., being first duly sworn, complains on oath before
me and says that one harness of the value of thirty
dollars, and one saddle of the value of ten dollars,
of the goods and chattels of the said C.D. were, on
the ____ day of ____, A.D. 18__, feloniously taken,
stolen and carried away from his premises and
possession, at said county, and that the said
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even today, example forms consistently contain a statement in
the jurat that the information in the affidavit was "Subscribed
and sworn to before me." Indeed, the affidavit in this case was
affixed with a similar jurat.
¶86 Thus, from the early days of the republic, an
affidavit in support of a search warrant necessarily was
accompanied by an act of swearing before a judicial officer,
supporting this dissent's conclusion that an affiant must
complete some sort of act to have properly sworn an oath or made
an affirmation. Stated differently, the practices at the time
of the founding make clear that an oath must be taken, and it
must be done before a judicial officer.
C
¶87 An examination of the earliest interpretations and
applications of the constitutional oath or affirmation
requirement also informs our inquiry. Early legislative
enactments reinforced the need for an oath in an application for
complainant verily believes that the said stolen goods
and chattels are concealed in the dwelling house of
one A.B. (or, particularly describe the place to be
searched), in the _____ of _____, in said county; and
that the following are the reasons for and grounds of
such belief: (Here set forth reasons, etc., to
satisfy the magistrate that there is cause for such
belief.)
Subscribed and sworn to before me, this ___ day of
____, A.D. 18__, ______ ______, Justice of the Peace.
Edwin E. Bryant, A Treatise on the Civil and Criminal
Jurisdiction of Justices of the Peace, and the Powers and Duties
of Constables in Executing Process in the State of Wisconsin 940
(1884).
13
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certain search warrants. Tye, 248 Wis. 2d 530, ¶11. Indeed,
the Wisconsin legislature passed a statute indicating just this
in 1848, the same year Wisconsin attained statehood.8 Id. The
text of this original statutory provision has been amended
numerous times, but it still today refers to a "sworn complaint"
or "sworn oral testimony." Id.; Wis. Stat. § 968.12 (emphasis
added).9 Additionally, the modern statute indicates that the
complaint must be sworn to "before a notarial officer authorized
under ch. 140 to take acknowledgments or before a judge" or may
be taken telephonically in compliance with certain statutory
procedures. Wis. Stat. § 968.12(2) & (3).
See State v. Tye, 2001 WI 124, ¶11 n.10, 248 Wis. 2d 530,
8
636 N.W.2d 473; Wis. Stat. § 2, ch. 142 (1849) ("Any such
magistrate when satisfied that there is reasonable cause, may
also, upon like complaint made on oath, issue search
warrants . . . .").
9 In relevant part, Wis. Stat. § 968.12 provides:
(2) Warrant upon affidavit. A search warrant may be
based upon sworn complaint or affidavit, or testimony
recorded by a phonographic reporter or under sub.
(3)(d), 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 search warrant that the person so swore to the
complaint or affidavit.
(3) Warrant upon oral testimony. (a) General rule. A
search warrant may be based upon sworn oral testimony
communicated to the judge by telephone, radio or other
means of electronic communication, under the procedure
prescribed in this subsection.
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No. 2019AP2184-CR.awb
¶88 We find an additional example of the early application
of the oath or affirmation requirement by one of the preeminent
jurists in our country's history during the course of his
participation in a notorious trial. As part of the trial of
Aaron Burr in 1807, Chief Justice John Marshall was asked to
rule on the admissibility of an affidavit. For an oath to be a
"legal oath," Chief Justice Marshall commented that it must be
"taken by a 'complete magistrate' who is 'qualified.'"
Sacharoff, supra ¶59, at 680 (citing Burr, 25 F. Cas. at 28-29).
His ruling demonstrates that an oath is "a solemn requirement
that could not be relaxed." Id. at 679.
¶89 The upshot of all of this is that an oath is an "act"
that must take place. The groundwork for such a premise is laid
by dictionaries from the founding era and built upon through the
constitutional debates and practices of the time, as well as the
first interpretations and applications after enactment. The
affiant must do something, and that something is to actually
take an oath.
D
¶90 I turn next to examine applications of an oath or
affirmation requirement in Wisconsin case law. This case law
again drives home the point that an "oath" is an act that must
take place.
¶91 In Kellner v. Christian, 197 Wis. 2d 183, 191, 539
N.W.2d 685 (1995), we concluded 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
15
No. 2019AP2184-CR.awb
contents of the notice." In doing so, we described the oath or
affirmation requirement as mandating "in some form an
unequivocal and present act by which the affiant consciously
takes upon himself the obligation of an oath." Id. at 192
(emphasis added).
¶92 We have also distinguished an oath or affirmation from
an "acknowledgement" in that "oaths and affirmations require a
person to swear or affirm the truth of a statement." Estate of
Hopgood ex rel. Turner v. Boyd, 2013 WI 1, ¶30, 345 Wis. 2d 65,
825 N.W.2d 273.10 "They are solemn, formal, and signify an
obligation to speak the truth." Id. We have also described an
oath or affirmation as something that "must be administered."
Id., ¶31; see also State v. Johnston, 133 Wis. 2d 261, 267, 394
N.W.2d 915 (Ct. App. 1986) (concluding that the defendant was
under oath after the oath was administered by the clerk of
court). Use of the word "administer" strengthens the premise
Admittedly,
10 Hopgood, like Kellner, addressed the
requirement that a notice of claim pursuant to Wis. Stat.
§ 893.82(5) be "sworn to," and not a search warrant. However,
this is distinction without a difference. Why should it mean
one thing to "swear to" a statement's truth in one context and
something else in another?
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No. 2019AP2184-CR.awb
that an oath is an "act" taken by the affiant before and in
interaction with another.11
III
¶93 With the above discussion as a guide, I turn finally
to apply the teachings of the constitutional text,
constitutional debates and practices of the time, earliest
legislative enactments, and case law to the facts at hand.
¶94 As the historical evidence demonstrates, and as the
majority correctly observes, an oath or affirmation has long
been an "essential prerequisite to the issuance of a valid
search warrant." Majority op., ¶17; Tye, 248 Wis. 2d 530, ¶13;
State v. Baltes, 183 Wis. 545, 552, 198 N.W. 282 (1924). For a
constitutional "essential prerequisite," the majority treats the
oath or affirmation requirement rather loosely. There is no
dispute here that Sergeant Brown did not, either orally or in
writing, swear or affirm that he would tell the truth at any
point in the process of filling out or signing his affidavit.
The law does not support the majority's "look the other way"
approach.
¶95 Sergeant Brown's affidavit, by itself, was
insufficient to fulfill the constitutional oath or affirmation
The majority quotes from a commonly-cited treatise on
11
criminal procedure to support its conclusion. Majority op., ¶32
(quoting 2 Wayne R. LaFave, et al., Criminal Procedure § 3.4(c)
(4th ed. 2021) (citations omitted)). However, as the majority
further acknowledges, LaFave also states that "[n]o particular
ceremony is necessary to constitute the act of swearing,"
further supporting this dissent's conclusion that an oath
requires an act. See LaFave, et al., supra, § 3.4(c) (emphasis
added). Thus, this treatise still supports this dissent's
premise that "something must be done."
17
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requirement. I agree with the majority that an oath need not be
oral. See majority op., ¶19 (indicating that "it was recognized
during the Founding that an 'oath' could be written rather than
spoken"). However, nothing in the affidavit constitutes a
written oath and the parties agree that no oral oath was ever
"taken" before a judicial officer. If, instead of "being first
duly sworn," the affidavit began with "I swear or affirm that
the contents of this affidavit are true," we would likely not
have this case before us. And if Sergeant Brown had made an
oral oath before the notary swearing or affirming the truth of
the affidavit's contents, we likely would be on solid
constitutional ground.
¶96 However, neither of these things happened. The
affidavit instead falsely asserts that Sergeant Brown was "first
duly sworn." It is undisputed that he was not. This court has
previously held that "the total absence of any statement under
oath to support a search warrant violates the explicit oath or
affirmation requirement." Tye, 248 Wis. 2d 530, ¶3. Such is
the case here.
¶97 I further agree with the majority that an oath is a
matter of substance, not form. See majority op., ¶36. But this
does not mean that law enforcement can dispense with the act of
an oath altogether and still call it an oath. There may not be
"magic words" required, but there still must be an oath. Here,
Sergeant Brown's "oath" was deficient as a matter of substance
because there was no actual oath taken by the affiant.
18
No. 2019AP2184-CR.awb
¶98 Indeed, there was no "oath" "taken" "before" anyone.
There was no attestation, much less an attestation before a
magistrate. Because Sergeant Brown did not commit any act
before any other person that would indicate he was under oath at
any point in the process of drafting, signing, or notarizing the
affidavit, I conclude that he was not under oath for purposes of
the Fourth Amendment and Article I, Section 11 of the Wisconsin
constitution.
¶99 The oath or affirmation requirement is not a
technicality or meaningless hoop through which law enforcement
must jump. See Kellner, 197 Wis. 2d at 192 (explaining that
"the requirement of an oath is not a mere technicality"); Tye,
248 Wis. 2d 530, ¶14 (agreeing with the State's acknowledgement
that the "failure to swear to the information upon which a
warrant is obtained cannot be dismissed as a mere failure to
comply with a technicality"). It is instead a constitutional
imperative. I would hold law enforcement to the constitutional
standard, thereby "preserv[ing] the integrity of the search
warrant process," Tye, 248 Wis. 2d 530, ¶19, and upholding the
vitality of the oath or affirmation requirement.
¶100 For the foregoing reasons, I respectfully dissent.
¶101 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
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1