from the Iowa District Court for Scott County, Marlita A.
State appeals the district court's grant of
defendants' motions to suppress. REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS.
J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, Michael Walton, County Attorney, and Kelly
G. Cunningham, Assistant County Attorney, for appellant.
D. Hallstoos of Hallstoos Law Office, Dubuque, for appellee
Maurice D. Angel.
C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellee Kemia B. McDowell.
detective prepared a search warrant application, brought the
application before a judicial officer, and without signing
the application orally swore that it was true and correct in
the presence of the judicial officer. The judicial officer
approved and signed the warrant. Four days later, the warrant
question now presented is whether a warrant issued under
these circumstances violates Iowa Code section 808.3. We
conclude that it does not, because section 808.3 permits the
warrant applicant to swear to the truth of the warrant
application in the presence of the judicial officer even if,
inadvertently, the applicant fails to sign it.
these reasons, we reverse the granting of the defendants'
motions to suppress and remand for further proceedings.
Background Facts and Proceedings.
March 2015, Deputy Dan Furlong and fellow agents used a
confidential source to make two crack cocaine purchases from
Maurice Angel. This confidential informant had been known to
Furlong and his fellow agents for three years, had provided
reliable information in the past, and had not previously
given false information. During those buys, which were
visually recorded, Furlong and the other agents saw Angel
driving a silver 2002 Chevrolet Tahoe. After the second buy,
Angel returned to a residence at 1916 E. 38th St. in
Davenport. A utilities check indicated that service was being
provided to the residence under the name Kemia McDowell.
following month, Deputy Furlong obtained a warrant for a GPS
tracker that was attached to the Tahoe. On April 22, the
tracker was placed on the Tahoe, and for the next two weeks,
it confirmed that the vehicle was parked in front of 1916 E.
38th St. every night except one.
evening of May 7, Angel was observed by law enforcement
parking the Tahoe and then walking directly into 1916 E. 38th
St. Approximately fifteen minutes later, Angel was seen
leaving the residence and driving to a McDonalds. Angel's
Tahoe pulled into the McDonalds parking lot next to another
vehicle. An individual got out of the other vehicle, and the
other individual opened the front door of Angel's Tahoe
and received an item. The entire encounter took less than two
minutes. This other individual was a person on probation for
possession of a controlled substance with intent to deliver
and failure to affix a drug stamp.
next four hours, Angel's Tahoe continued to make a series
of brief stops in various parking lots. Furlong suspected
some of the stops were for the purpose of drug sales while
others may have been efforts by Angel to determine if he was
being followed. At about 1:15 a.m. on May 8, Angel's
Tahoe returned to 1916 E. 38th St.
on May 8, Furlong prepared a warrant application to search
the residence at 1916 E. 38th St. At the subsequent
suppression hearing, Furlong described the process by which
he obtained the actual search warrant:
Q. Detective Furlong, I'm going to hand you what's
been marked Defendant's Exhibit A. I'd like for you
to take an opportunity to look at that and tell me if you
recognize Defendant's Exhibit A.
A. Yes, I do.
Q. How do you recognize Defendant's Exhibit A?
A. This is the search warrant that I typed for the
residence of 1916 East 38th Street in Davenport.
Q. Detective Furlong, when you prepared this set of
documents, what did you do initially before presenting it to
A. Once I finish preparing it, I brought it to you in the
County Attorney's Office to review.
Q. And was the document reviewed?
A. Yes, it was.
Q. Does the State's signature appear on that document
reflecting that review?
A. Yes, it does, on page 4.
Q. Okay. And is that for the application for search warrant?
A. Yes, it is.
Q. Once the State had reviewed that document, what was the
next step you took?
A. The next step that I took was to find a judge to review
the search warrant.
Q. Okay. Where did you go to do that?
A. I walked to the third floor of the Scott County
Q. Were you able to locate a judge?
A. Yes, I did.
A. Judge Henry Latham.
Q. Where did you locate Judge Latham at?
A. I walked up the west stairwell after leaving the County
Attorney's Office and I don't remember what door
that is called. It's directly to the west behind us.
And when I walked into the back hallway of the courtroom
for district court, I ran into Judge Latham and I asked him
if he had time to look at the search warrant.
Q. Was Judge Latham willing to look at this application for
search warrant and the attached documents?
Q. Now, where did Judge Latham review these documents at?
A. It was directly outside of the other judges'
chambers in the hallway.
Q. Okay. Outside of Courtroom 4 here?
A. Outside the courtroom.
Q. When you presented the documents to Judge Latham, what
A. The search warrant --the same as every other search
warrant. He asked me to raise my right hand and asked me to
swear and affirm that everything in here was true and
correct to the best of my knowledge.
Q. And then did you take that oath?
A. Yes, I did.
Q. And did you swear and affirm before Judge Latham that the
information contained within the application for search
warrant was true and correct?
A. Yes, I did.
Q. Now, having taken the oath, what did you observe Judge
Latham do next?
A. Judge Latham reviewed the search warrant and he signed
the search warrant in all three places.
THE COURT: You're going to have to speak up. You're
dropping off at the end. Judge Latham reviewed it and what?
A. Judge Latham reviewed the search warrant and he signed
the search warrant in three separate places on the
application on the endorsement and on the search warrant.
Q. Now, in looking at the signature page for the application
to search warrant, is there a signature on there?
A. Is my signature on there?
Q. Right. A. No, it's not.
Q. Okay. And then can you explain how that came about?
A. I -- after he swore me in, I handed him the documents or
I handed him the documents first thing, he swore me in, and
he reviewed everything and signed it in three places and
returned it to me.
Q. Was it an oversight then that your signature did not get
on the document?
A. Yes, it was.
Q. Now, does the application for search warrant on the
signature page indicate a date that it was presented to Judge
A. May 8, 2015.
Q. And in going to the search warrant page, does it set forth
a location where Judge Latham can date and sign when he would
have approved the search warrant?
A. Yes, it does.
Q. And what does it set forth?
A. It was on May 8, 2015 at 3:22 p.m.
Q. Now, to be clear, were you given the oath or affirmation?
A. Yes, I was.
executed the warrant the morning of May 12. At that time,
McDowell was present in the residence and smoking marijuana
in the presence of two young children. During the search, an
unlabeled pill bottle containing 11.6 grams of crack cocaine,
3.5 grams of powder cocaine, 9 grams of marijuana, a digital
scale, a marijuana grinder, and $703.00 in cash were
and McDowell were charged with possession with intent to
deliver crack cocaine, possession with intent to deliver
powder cocaine, possession with intent to deliver marijuana,
conspiracy to commit possession with intent to deliver a
controlled substance, sponsoring a gathering where controlled
substances are unlawfully used, and a drug tax stamp
violation. See Iowa Code §
(1)(d) (2015); id. § 124.407;
id. § 706.1(1); id. § 453B.12(2).
McDowell was also charged with child endangerment.
Id. § 726.6(1)(a).
and McDowell moved to suppress the results of the search
based on Deputy Furlong's failure to sign the warrant
application and on lack of probable cause. A hearing on the
motions to suppress took place on October 7. Following the
hearing, the district court issued a ruling granting the
motions to suppress. The court concluded that Iowa law
required the warrant application to be signed in the presence
of the issuing judicial officer. The court reasoned,
"Detective Furlong's failure to sign the search
warrant application means it was not 'supported by the
person's oath or affirmation' as required by Iowa
Code section 808.3." Citing State v. Easter,
241 N.W.2d 885 (Iowa 1976), the district court also concluded
that it could not receive testimony given at a hearing on a
motion to suppress a search warrant. It thus declined to
consider Deputy Furlong's testimony.
the district court took note of a further matter that had
been discussed at the suppression hearing. Although the judge
had signed (1) the warrant, (2) the jurat beneath the space
for Deputy Furlong's signature on the application, and
(3) the endorsement of the warrant application on May 8, he
had failed to do any striking out or circling on the
endorsement form where it said, "The information (is/is
not) found to justify probable cause, " and "I
therefore (do/do not) issue probable cause." In the
district court's view, this fact also supported granting
the defendants' motions to suppress.
granted the State's application for discretionary review
and retained the appeal.
Standard of Review.
review challenges to warrant applications based on statutory
requirements for corrections of errors at law. State v.
Davis, 679 N.W.2d 651, 656 (Iowa 2004); State v.
Day, 528 N.W.2d 100, 102 (Iowa 1995).
question we have to answer is one of statutory
interpretation: Did the warrant comply with Iowa Code section
808.3? That section provides,
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. The application shall describe the
person, place, or thing to be searched and the property to be
seized with sufficient specificity to enable an independent
reasonable person with reasonable effort to ascertain and
identify the person, place, or thing. If the magistrate
issues the search warrant, the magistrate shall endorse on
the application the name and address of all persons upon
whose sworn testimony the magistrate relied to issue the
warrant together with the abstract of each witness'
testimony, or the witness' affidavit. However, if the
grounds for issuance are supplied by an informant, the
magistrate shall identify only the peace officer to whom the
information was given. The application or sworn testimony
supplied in support of the application must establish the
credibility of the informant or the credibility of the
information given by the informant. The magistrate may in the
magistrate's discretion require that a witness upon whom
the applicant relies for information appear personally and be
examined concerning the information.
Iowa Code § 808.3.
believe the warrant complied with the statute. The
application was "supported by the person's [i.e.,
Deputy Furlong's] oath or affirmation." Id.
The statute does not state that the oath or affirmation
itself must be in writing. To the contrary, the statute
requires a "written application, " while separately
requiring that the written application be "supported by
the person's oath or affirmation." Id. Both
prerequisites were met here. The adjective
"written" modifies "application, " not
"oath or affirmation."
Code section 808.3 contemplates that the magistrate may rely
on "sworn testimony." Id. It is of course
true that the magistrate must make an abstract of any oral
testimony that he or she receives. In State v.
Liesche, we recognized,
[I]t was the intent of the legislature . . . to require the
sufficiency of probable cause for issuance of a search
warrant to be tested entirely by the recitals in affidavits
and the magistrate's abstracts of oral testimony endorsed
on the application. No other evidence bearing on this issue
should be received in a suppression hearing. All essential
facts bearing on the existence of probable cause must either
be included in an affidavit or affidavits presented to the
issuing officer or in the issuing ...