state of iowa, ) plaintiff-appellant, ) in the supreme court of iowa _____ state of iowa, )...

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1 IN THE SUPREME COURT OF IOWA _____________________________________________________________ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v. ) S.CT. NO. 15-1830 ) MAURICE D. ANGEL, ) Defendant-Appellee. ) _____________________________________________________________ APPEAL FROM THE IOWA DISTRICT COURT FOR SCOTT COUNTY HONORABLE MARLITA A. GREVE, JUDGE ____________________________________________________________ APPELLEE’S BRIEF AND ARGUMENT _____________________________________________________________ SHARON D. HALLSTOOS [email protected] HALLSTOOS LAW OFFICE 3110 SPRING VALLEY ROAD Dubuque, Iowa 52001 563-582-6200 (Home Office/Fax) ATTORNEY FOR DEFENDANT-APPELLEE FINAL BRIEF ELECTRONICALLY FILED JUN 08, 2016 CLERK OF SUPREME COURT

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Page 1: STATE OF IOWA, ) Plaintiff-Appellant, ) IN THE SUPREME COURT OF IOWA _____ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v

1

IN THE SUPREME COURT OF IOWA

_____________________________________________________________

STATE OF IOWA, )

Plaintiff-Appellant, )

)

v. ) S.CT. NO. 15-1830

)

MAURICE D. ANGEL, )

Defendant-Appellee. )

_____________________________________________________________

APPEAL FROM THE IOWA DISTRICT COURT

FOR SCOTT COUNTY

HONORABLE MARLITA A. GREVE, JUDGE

____________________________________________________________

APPELLEE’S BRIEF AND ARGUMENT

_____________________________________________________________

SHARON D. HALLSTOOS [email protected] HALLSTOOS LAW OFFICE 3110 SPRING VALLEY ROAD Dubuque, Iowa 52001 563-582-6200 (Home Office/Fax)

ATTORNEY FOR DEFENDANT-APPELLEE FINAL BRIEF

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Page 2: STATE OF IOWA, ) Plaintiff-Appellant, ) IN THE SUPREME COURT OF IOWA _____ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v

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CERTIFICATE OF SERVICE

On the 8TH day of JUNE, 2016, the undersigned certifies that

a true copy of the foregoing instrument was served upon Defendant-

Appellee-Angel by placing one copy thereof in the United States

mail, proper postage attached, addressed to Maurice D. Angel, 713

11th Avenue, Rock Island, IL 61201.

HALLSTOOS LAW OFFICE

_____________/S/__________________

Sharon D. Hallstoos

Attorney at Law

Hallstoos Law Office

3110 Spring Valley Road

Dubuque, IA 52001

(563) 582-6300

[email protected]

Page 3: STATE OF IOWA, ) Plaintiff-Appellant, ) IN THE SUPREME COURT OF IOWA _____ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v

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TABLE OF CONTENTS Page

Certificate of Service…………………………………………………………..2 Table of Authorities……………………………………………………………4 Statement of the Issues Presented for Review…………………………..6 Routing Statement…………………………………………………………….7 Statement of the Case…………………………………………………………8 Argument……………………………………………………………………….15 Conclusion……………………………………………………………………..29 Request for Non-oral Argument…………………………………………..30 Attorney's Cost Certificate………………………………………………….30 Certificate of Compliance…………………………………………………..31

Page 4: STATE OF IOWA, ) Plaintiff-Appellant, ) IN THE SUPREME COURT OF IOWA _____ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v

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TABLE OF AUTHORITIES

CASES: PAGE

Henry v. State, 626 S.E.2d 511 (Ga. 2006………………………….7,26

People v. Vera, 913 NE2d 86 (Ill. App. 2009)………………………….25

State v. Barnett, 220 S.E.2d 730 (GA)………………………………..6,26

State v. Beckett, 532 NW2d 751 (Iowa 1995)…………………6,9,10,28

State v. Colon, 644 A.2d 877 (Conn. 1994……………………………..25

State v. Easter, 241 N.W.2d 885 (Iowa 1976)……………….6,11,20,22

State v. Harris, 436 N.W.2d 364 (Iowa 1989)……………………….6,21

State v. Iowa District Court, 472 N.W.2d 621(1owa 1991)……….6,29

State v. Liesche, 228 N.W. 2d 44 (Iowa 1975)………6,11,16,17,21,22

State v. Myers, 570 N.W.2d 70 (Iowa 1997)………………………….6,18

State v. Paschal, 300 N.W.2d 115 (Iowa1981)…………………..6,23,24

State v. Seiler, 342 N.W.2d 264 (Iowa 1983)………..…………..6,11,20

State v. Swaim, 412 N.W.2d 568 (Iowa 1987)……………………..10,14

Wenck v. State, 320 N.W.2d 567 (Iowa 1982)…………………………...9

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Statutes:

Iowa Code § 808.3……………………..7,8,10,11,13,15,16,17,19,23,24

Iowa Code § 808.4 (2015)…………………………………..6,7,8,10,27,29

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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

WHETHER THE SEARCH WARRANT WAS INVALID BECAUSE IT

WAS NOT IN COMPLIANCE WITH IOWA CODE §§ 808.3 AND 808.4

Authorities

State v. Barnett, 220 S.E.2d 730, 732 (GA 1975)

State v. Beckett, 532 NW2d 751 (Iowa 1995)

State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986)

State v. Easter, 241 N.W.2d 885 (Iowa 1976)

State v. Godbersen, 493 NW2d 852, 854-55 (Iowa 1992)

State v. Harris, 436 N.W.2d 364 (Iowa 1989)

State v. Iowa District Court, 472 N.W.2d 621(1owa 1991)

State v. Liesche, 228 N.W. 2d 44 (Iowa 1975)

State v. Myers, 570 N.W.2d 71, 73 (Iowa 1997)

State v. Paschal, 300 N.W.2d 115 (Iowa 1981)

State v. Seiler, 342 N.W.2d 264 (Iowa 1983)

STATUTES

Iowa Code § 808.3……………………..7,8,10,11,13,15,16,17,19,23,24

Iowa Code § 808.4 (2015)……………………………………..7,8,10,27,29

Page 7: STATE OF IOWA, ) Plaintiff-Appellant, ) IN THE SUPREME COURT OF IOWA _____ STATE OF IOWA, ) Plaintiff-Appellant, ) ) v

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ROUTING STATEMENT

This case should be retained by the Iowa Supreme Court

because one of the issues raised involves a substantial issue of first

impression in Iowa and deals with whether the warrant was in

‘substantial compliance’ with Iowa Code §§ 808.3 and 808.4. Iowa

R. App. P. 6.903(2)(d) and 6.1101(2)(c).

The case involves the following 2 issues: (1) Whether pursuant

to Iowa Code 808.3 whether the district court erred in sustaining the

defendant’s motion to suppress in finding the search warrant invalid

because the application for the search warrant was not signed by

Deputy Furlong; And

(2) Pursuant to Iowa Code Section 808.4 the district court erred

in sustaining the Defendant’s Motion to Suppress the evidence seized

through the issuance of a search warrant where the magistrate did

not make a finding of probable cause prior to issuing the search

warrant.

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STATEMENT OF THE CASE

Nature of the Case

The State appeals the district court’s ruling grant of the

Defendants’ Motions to Suppress evidence seized pursuant to a

search warrant executed on May 18, 2015.

Course of Proceedings

Defendant-Appellee, Maurice Angel, agrees with the State’s

recitation of the course of proceedings.

Facts: Defendant-Appellee, Angel, agrees that the State’s

recitation of facts are sufficient in regards to the issues raised on

appeal.

STATE’S ARGUMENT

THE SEARCH WARRANT WAS INVALID BECAUSE IT DID MEET

THE REQUIREMENTS OF IOWA CODE SECTIONS 808.3 AND

808.4 (2015).

A. Error Preservation.

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Angel agrees that the State preserved error by filing a

resistance and brief in opposition to the Defendants’ motion

to suppress and that the State offered a witness for the

contested hearing, obtained a ruling on the contested issue

and filed an application seeking discretionary review of the

district court’s ruling.

B. Standard of Review.

The court reviews legal challenges regarding the statutory

sufficiency of the warrant is for correction of errors at law.

State v. Day, 528 N.W.2d 100, 102 (Iowa 1995); State v.

Beckett, 532 N.W.2d 751, 753 (Iowa 1995). The appellate

courts may affirm the district court’s ruling on any grounds,

including grounds that are different from those relied on by

the trial court. Wenck v. State, 320 N.W.2d 567, 569 (Iowa

1982). The appellate court is limited in its review to a

consideration of only that information, reduced to writing,

which was actually presented to the magistrate at the time

application for the warrant was made. State v. Seager, 341

N.W.2d 420, 426 (Iowa 1983).

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c. Discussion.

In State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986), the

appellate court recognized its duty to give deference to the

magistrate's finding. Id. at 558. Due to the preference for

warrants, doubts are resolved in favor of their validity. Id.

The Court held that the reviewing court has the obligation

“to insist that the issuing magistrate’s function be

performed in a neutral, detached manner and not merely

serving as a rubber stamp for the police.” State v. Beckett,

532 N.W.2d 751, 753 (Iowa 1995) (quoting State v. Swaim,

412 N.W.2d 568, 571 (Iowa 1987).

In the instant case, the Court did not err when it granted

the Defendants’ Motion to Suppress because the search

warrant was not in substantial compliance with Iowa Code

§§ 808.3 and 808.4. (2015) for the following reasons: (1)

The application was unsigned and therefore was not

supported by oath or affirmation and (2) The

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magistrate/judge did not complete the endorsement

indicating its probable cause findings prior to issuing the

search warrant.

The district court correctly held that Furlong’s unsigned

and unsworn Application for the Search Warrant could not

be later supplemented by his oral testimony because it was

limited in considering only the “four corners of the warrant”

documents, citing State v. Seiler, 342 N.W.2d 264 (Iowa

1983) and State v. Easter, 242 N.W.2d 885 (Iowa 1976).

(Ruling, p. 3) (App. 138).

In State v. Liesche, 228 N.W.2d 44, 48 (Iowa 1975), the

Court declared that it would limit challenges to the search

warrant to the “four corners” of the warrant documents

presented to the magistrate at the time he/she issued the

warrant. Id.

In that case, the magistrate/judge did not comply with Iowa

Code Section 741.4 (now 808.3). On the Endorsement of

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Search Warrant page, the magistrate did not write the name

and address of the person whose testimony the magistrate

relied on in issuing the warrant. Additionally, the

magistrate recounted at the Defendant’s suppression

hearing that he relied on a peace officer’s verbal comment

stating his beliefs that the Defendant possessed a gun on

his person that was used in a rape days earlier. The

magistrate could not remember if he placed the peace officer

under oath. Further, the magistrate did not comply with

the statutory requirement of completing an abstract of the

peace officer’s oral testimony. The Court expressed concern

about the magistrate’s failure to preserve a clear written

record for the Defendant in the event he/she wanted to

challenge the underlying search warrant. Id. at 46-47. The

Court held that the magistrate’s failure to comply with

statute created an “intolerable situation” in which all the

parties were at the mercy of the magistrate’s poor memory

of the circumstances surrounding the issuance of a search

warrant.” Id. at 48 It further held that the magistrate’s

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failure to keep a good, written record of the sworn testimony

or circumstances regarding the issuance of a warrant

deprived the defendant “of notice of the fact recited against

him for purposes of attacking their veracity.” Id. The Court

then clarified that the legislative intent behind 808.3 is to

require that the sufficiency of the probable cause for the

issuance of a search warrant rises or falls on the written

Application/affidavit in support of the search warrant, along

with the abstracts of oral testimony. If the information is

not contained in the “four corners” of any of those

documents, then the court will not consider any extrinsic

evidence regarding the said warrant documents.

By enacting 808.3, it appears that the Iowa legislature

sought to protect the rights of the people and make the

Search Warrant process as transparent as possible.

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d. ISSUANCE OF THE WARRANT:

“Because there is a preference for warrants, we resolve

doubtful cases in favor of their validity.” State v.

Godbersen, 493 NW2d 852, 854-55 (Iowa 1992). A search

warrant is only to be issued upon probable cause. State v.

Swaim, 412 NW2d 568, 570 (Iowa 1987). The test for

determining the existence of probable cause is “Whether a

person of reasonable prudence would believe a crime was

committed on the premises to be searched or evidence of a

crime could be located there.” Godbersen at 855. Although

we give substantial deference to the magistrate’s

determination of probable cause, the reviewing court has

the responsibility “to insist that the issuing magistrate’s

function be performed in a neutral and detached manner,

not serving merely as a rubber stamp for the police.”

Swaim, 412 at 571. Although we are mindful that warrant

documents are “normally drafted by non-lawyers in the

midst and haste of a criminal investigation,” id at 574

(citation omitted), we are compelled to “carefully balance

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that consideration against the court’s duty to

conscientiously review the sufficiency of the affidavit to

insure that the issuing magistrate’s action is not a mere

ratification of the bare conclusions of others.” Id.

ARGUMENT #1

The district court properly granted the Defendants’ Motion to

Suppress because the Detective’s Application for Search Warrant

was not supported by sworn under oath or affirmation as required

by Iowa Code Section 808.3.

Iowa Code Section 808.3 states, in pertinent part, “A person

may make application for the issuance of a search warrant by

submitting before a magistrate a written application, supported

by the person's oath or affirmation, which includes facts,

information, and circumstances tending to establish sufficient

grounds for granting the application, and probable cause for

believing that the grounds exist. (Emphasis added). Id.

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The Court has interpreted Iowa Code Section 808.3 to

require applications for search warrant to be in written form. State

v. Leische, 228 N.W.2d 44, 47 (1owa 1975). In Liesche the court

explained its rationale for the writing requirement is “to assure

accurate, meaningful review of the probable cause showing and to

provide notice to the Defendant of the facts recited against him for

purposes of attacking veracity.” Id. at 47-48.

In this case, Detective Furlong made a written application for

a search warrant, in the form of an affidavit, and presented it to

court. Application for Search Warrant pp. 1-4; App. 145-148. The

Application opens with the following phrase, “Being duly sworn, I,

the undersigned...” Id. at p. 1; App. 145.

Detective Furlong, however, did not sign the Application,

which is indicative that he was neither placed under sworn oath nor

affirmation regarding the information that he provided in the search

warrant application. Id. at p. 4; App. Id. The line above his typed

written name, where his signature is supposed to be placed, is

blank. Id.

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Under Liesche, the application for search warrant serves as a

written record for the reviewing court and parties about what

information and which source led to the issuance of a search

warrant. In this case, the written record of Furlong’s Application for

Search Warrant does not show that he was placed under sworn

oath or affirmation. Id.

In the district court’s ruling it explained, “Detective Furlong’s

failure to sign the search warrant means that it [the Application]

was not supported by the person’s oath or affirmation.’” as required

by 808.3. Ruling p. 8; App. 143.

A second issue raised within this context is whether the

issuing judge’s signature on the Application cures the flaw of

Furlong’s failure to sign the Application and validates Furlong’s

Application for Search Warrant. The issuing judge’s signature on

the application does not resuscitate the application because

Furlong is the listed applicant of the search warrant, which requires

his signature and not that of the magistrate; Henry v. State, 626

S.E. 2d 511, 512-13 (Ga. 2006) holds that a search warrant is

invalid where an Affidavit in support of an Application for a Search

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warrant is signed by a person other than the named affiant. “It is

axiomatic that [t]he signature of the affiant is necessary to the

validity of an affidavit.’’ Id. at 513.

Although the issuing judge signed his name following the

phrases “Subscribed and sworn to before me on May 8, 2015,” it

does not rehabilitate the Application because there is no signature

on the complaint as to indicate who the issuing judge had sworn

under oath or affirmation regarding the information contained in

the information. Application for Search Warrant p.4; App.148.

Perhaps the issuing judge intended to write that he placed

Detective Furlong under sworn oath or affirmation. Id. In State v.

Myers, 570 N.W.2d 71, 73 (Iowa 1997) the court held that it was

“inappropriate and perhaps even dangerous to guess at the (issuing)

magistrate’s reasoning.” Even if he was found to have

acknowledged placing Furlong under oath or affirmation, the search

warrant is still invalid because the issuing judge also acknowledged

that he personally witnessed him sign the Application, which clearly

did not occur. Application for Search Warrant p.4; App.148.

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The district court addressed whether the issuing magistrate’s

signature on the application alone validates the issuance of the

search warrant. It explained, “[I]f the issuing judge’s signature is all

that is required, why have a place for the person requesting the

search warrant to sign? That interpretation begs the question of

what is the purpose of having a search warrant application state in

its first line that the undersigned has sworn if the signature itself is

not important. The person’s signature requesting the search

warrant is a clear indication for a reviewing court to determine

there was a proper oath or affirmation given supporting the search

warrant application without that, the determination is missing and

simply cannot be made. Thus the search warrant is fatally flawed

because it was not supported by oath or affirmation as required.

See Iowa Code Section 808.3.” Ruling p. 6; App. 141.

Nearly five months following the execution of the search

warrant the Defendants filed Motions to Suppress the evidence.

The State resisted the motions. At the suppression hearing

Detective Furlong testified, over the Defendants’ objection. Furlong

acknowledged that he did not sign the application but that he

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recalls being placed under sworn oath and affirmation by the

issuing judge. The district court allowed Detective Furlong to testify,

but instructed the parties that it would not make a determination

whether or not to sustain or overrule the Defendants’ objection until

after it conducted its research. Ruling p. 2-3; App. 137-138.

Later the court sustained the Defendants’ objection to

Detective Furlong’s testimony and held, “It is well settled law that

only information that was actually presented to the magistrate

when the warrant was requested may be considered when

determining the validity of that warrant.” State v. Seiler, 342

N.W.2d 264 (Iowa 1983). The search warrant cannot be

rehabilitated by later testimony. State v. Easter, 241 N.W. 2d 885

(Iowa 1976). Thus, this court must determine whether the search

warrant is valid based on the application for the search warrant

only; not on any procedures used in obtaining it. Therefore, this

court cannot and will not consider Detective Furlong’s testimony in

its determination of the motions to suppress.” Ruling p. 3; App.

138. Thus the district court concluded that it could not consider

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any of Detective Furlong’s testimony since it was bound to consider

only the four corners of the search warrant. Id.

The state suggested that State v. Harris 436 N.W.2d 364

(1989) is similar to the instant case. In Harris, a police officer

submitted an application for a search warrant of the Defendant’s

residence. Id. at 369. The issuing judge was initially reluctant to

sign it because the officer’s application heavily relied on the

informant’s credibility. Id. The issuing judge required the officer to

bring the informant before him for sworn testimony under oath. Id.

The issuing judge asked the informant questions based on the

information contained in the officer’s application. Id. The issuing

judge was satisfied with the informant’s response and issued a

search warrant for law enforcement officers to search the

Defendant’s residence. Id. The issuing judge noted the officer’s

name on the application as a person whose testimony he relied on

in the warrant but the issuing judge did not include a written

abstract summary of the informant’s sworn testimony. Id. at 370.

On appeal, the Defendant argued that the court violated the Liesche

doctrine. Id. He argued that the issuing judge should not have

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considered the Informant’s sworn, oral testimony. Id. The court

held that the search warrant was valid and did not violate the

Liesche doctrine because the informant merely confirmed the

information he provided to the peace officer and did not provide any

new information to the magistrate that was not already contained in

the officer’s application. Id. at 371.

In the case at bar, the district court properly declined to

consider Furlong’s testimony because it is inconsistent with the

four corners of the application for search warrant. The district

court explained, “[F]or a court to allow testimony in a hearing on a

motion to suppress would be a surprise to Defendants and contrary

to law.” See State v. Easter, 241 N.W.2d 885 (1976). Furlong seeks

to fix problems that are inherent on the Application for the Search

Warrant, namely that he did not sign the warrant to verify that the

issuing judge placed him under oath or affirmation and the

ambiguity of the issuing judge’s acknowledgement that he observed

Furlong personally sign the Application, when the application

clearly does not contain his signature, and that he placed Furlong

under sworn oath or affirmation. To allow him to testify would

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involve introducing new facts which are not clear from the warrant

application.

In this case the magistrate could have inadvertently signed

the document without placing the Deputy under oath. With the

passage of time, it is highly unlikely the magistrate would recall

placing Deputy Furlong under oath in this particular case. The

Defendant would be prejudiced if the Court sent this case back to

trial court on remand for the Magistrate to testify because even if he

did not specifically recall placing Furlong under oath in this

particular case, he would likely testify that he followed his routine

way of issuing warrants, which would be to have the peace officer

swear under oath that the information he/she provided in the

Application for search warrant is credible to the best of his

knowledge.

Even if the court considers Furlong’s testimony, the search

warrant is invalid because the written application should also show

written proof that the oath or affirmation be verified in writing. In

State v.Paschal, 300 N.W.2d 115 (Iowa 1981) the court interpreted

Iowa Code section 808.3 to require proof that the application for

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search warrant was sworn to under oath and/or affirmation also be

in writing. Id. In Paschal, a peace officer presented a written

application for a search warrant to a judge. Id. at 116. The written

application was in the form of a sworn affidavit and the officer’s oral

testimony. The court completed the endorsement of the search

warrant and, in writing, referred to the peace officer’s oral testimony

in the endorsement as something he relied on in issuing the search

warrant. Id.

The Defendant argued that the search warrant was invalid

pursuant to Iowa Code 808.3 because the endorsement neither

included a transcript nor summary of the oral testimony contained

on the audiotape. Id. at 117. However, the reviewing court found

the search warrant valid because it is neither practical nor efficient

for the court to transcribe an oral audiotape in issuing a warrant

because it would take too much time to do so considering the

urgent need to respond to warrant requests. Id. at 119. Paschal is

distinguished from our case because the issuing judge in that case

made a written reference on the endorsement page regarding the

evidence/findings he relied on whereas in our case the issuing

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judge made no written notations on the warrant documents, except

for his signature.

Courts located in other states have held that the affiants’

failure to sign a search warrant is a mere technicality that would

not render the warrant invalid. In People v. Vera, Appellate Court of

Illinois, 913 N.E.2d 86 (2009), The Defendant filed a Motion to

Suppress the evidence obtained from the issuance of a search

warrant because the affiant police officer’s affidavit in support of the

warrant was unsworn and unsigned. Id. In Vera the court reversed

the district court’s ruling and deferred to the credibility of the

issuing judge/magistrate over these matters held that the missing

signature was a mere technical defect that did not invalidate the

warrant. Id at 439-494.

Also, in State v. Colon, 644 A.2d 877 (Conn. 1994) several

states have held that a signature on the affidavit is not essential to

prove the validity of that affidavit. See State v. Colon, 230 Conn. 24,

644 A.2d 877, 883 (1994) ("the jurat (signature) is simply evidence

of the fact that the affidavit was duly sworn to by the affiant, and,

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in the event of its omission, the fact that the affidavit was properly

sworn to may be proven by other evidence").

Although this issue is one of first impressions for the State of

Iowa, some courts in other states have consistently held that the

affiant’s failure to sign a search warrant is more than a mere

technical error and is a fatal flaw to the issuance of a search

warrant. In Henry v. State, 277 GA App. 302, 626 S.E.2d 511

(2006), a Defendant’s financial officer was convicted of embezzling

money from her employer. The Defendant appealed the district

court’s denial of her Motion to Suppress evidence seized as a result

of the search warrant. The Defendant claimed the search warrant

was invalid because the person named as the affiant in the Affidavit

in support of the search warrant was not the same person who

signed the said affidavit/application for search warrant. The court

explained that it is axiomatic that “[t]he signature of the affiant is

necessary to the validity of an affidavit.” State v. Barnett, 136 GA.

App. 122, 123; 220 S.E.2d 730 (1975).

Similarly, In State v. Barnett, 220 S.E.2d 730, 732 (GA 1974)

the court held that an unsigned complaint is not valid because the

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application was not supported by the affiant’s sworn oath or

affirmation; rather it was signed by a person other than the affiant.

Id. In Barnett, the court held, “the [attesting] officer’s signature

determines the validity of the affidavit and the search warrant, its

absence cannot be considered a mere technical irregularity.” Id.

ARGUMENT #2

Pursuant to Iowa Code 808.4, The Search warrant is invalid

because the issuing judge failed to complete and comply with the

Endorsement on the Search Warrant Application.

Pursuant to Iowa Code Section 808.4, prior to issuing a

warrant the issuing judge must make a finding of probable cause.

Iowa Code Section 808.4 mandates the magistrate to first make a

“Finding” of probable cause prior to issuing a warrant. Iowa Code

Section 808.4 provides, in pertinent part, “upon a finding of

probable cause for grounds to issue a search warrant, the

magistrate shall issue a warrant” (emphasis added).

The application indicates that Deputy Furlong was not placed

under oath or affirmation at the time he presented the magistrate

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with the application for search warrant, as indicated by his lack of

signature on the warrant. Application for Search Warrant p. 4; App.

148.

In this case, the search warrant is fatally flawed because the

issuing judge did not make any findings under paragraph 4 and 5

which provides one sentence each along with words for the issuing

judge to circle regarding his/her findings from:

(1) The information (is /is not) found to justify probable

cause.

(2) I therefore (do/do not) issue probable cause.

Endorsement of Search Warrant Application p. 1; App. 154.

In the instant case based on the issuing judge’s failure to

make findings of probable cause the district court explained,

“because there was no finding of probable cause, the search

warrant should not have been issued.” Id. Ruling p. 8; App.143.

The court previously held that where a statute required the

court to make findings, the court has refused to infer findings from

the action or inaction of the issuing judge. State v. Beckett, 532

N.W.2d at 774 (where the magistrate failed to check the box

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regarding the reasons he found either the informant credible and/or

the information that the informant supplied the peace officer

credible); State v. Iowa District Court, 472 N.W.2d at 624 (where the

court concluded the magistrate did not make findings in compliance

with the state with the statute).

For those above-mentioned reasons, the undersigned requests

that the Court affirm the district court’s ruling granting the

Defendant’s motion to suppress because the warrant was issued in

violation of Iowa Code Section 808.4.

CONCLUSION

For the reasons argued above, this court should affirm the

district court’s decision granting the defendants’ motions to

suppress. If the court finds that the district court’s decision should

be reversed, Defendant-Appellee Angel agrees with the State and

Defendant-Appellee McDowell that the reviewing court should

remand the case to district court for a ruling on whether probable

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cause supported the search warrant, as district court did not reach

that issue.

NON-ORAL SUBMISSION

Counsel requests not to be heard in oral argument.

ATTORNEY'S COST CERTIFICATE

The undersigned, hereby certifies that the true cost of

producing the necessary copies of the foregoing Brief and Argument

was $4.00.

__________/S/__________

SHARON D. HALLSTOOS

Attorney at Law

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATIONS, TYPEFACE REQUIREMENTS AND TYPE-STYLE

REQUIREMENTS

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1. This brief complies with the type-volume limitation of Iowa

R. App. P. 6.903(1)(g)(1) or (2) because:

[X] This brief contains 4,019 words, excluding the parts of the

brief exempted by Iowa R. App. P. 6.903(1)(g)(1) or (2)

2. This brief complies with the typeface requirements of Iowa

R. App. P. 6.903(1)(e) and the type-style requirements of Iowa R. App.

P. 6.903(1)(f) because:

[x] This brief has been prepared in a proportionally spaced

typeface using Microsoft Word 2010 in Bookman Old Style, font 14

point.

_____________/S/_________ Dated: June 8, 2016

SHARON D. HALLSTOOS

Attorney at Law Hallstoos Law Office 3110 Spring Valley Road Dubuque, Iowa 52001 563-582-6300 [email protected]