230 Conn. 24 | Conn. | 1994
Lead Opinion
The dispositive issue in these consolidated appeals is whether a search warrant is facially invalid because the issuing judge failed to sign and date a jurat.
On February 6, 1992, Hartford Detectives Michael Perodeau and Stephen Grabowski submitted an application for a search and seizure warrant for 12 Willard Street, apartment 304, to Superior Court Judge Carmen E. Espinosa. State v. Colon, 32 Conn. App. 402,
It was discovered subsequently that Judge Espinosa had neglected to sign the jurat following the detectives’ statement in the application for the warrant. Id., 404. Both Perodeau and Grabowski, however, had signed and dated the jurat form in the proper places and in all other respects the application for the warrant had been properly completed and executed. Specifically, the affidavit supporting the request to delay delivery of the warrant, including its jurat, had been properly signed by Judge Espinosa and detectives Perodeau and Grabowski. Judge Espinosa had also properly signed the actual order directing the search. Id., 404-405.
After a hearing, the trial court granted Colon’s motion to suppress the evidence seized pursuant to the warrant solely because Judge Espinosa had not signed the jurat following the detectives’ signatures. Id., 404 n.2. After granting the state’s subsequent motion to open and reconsider its decision, the trial court held a further hearing. Id. At this further hearing, the state introduced, over the objection of defense counsel, an affidavit from Judge Espinosa wherein she attested that she had found probable cause to issue the warrant, that she had properly administered the oath to the affi-ant officers, that the officers had sworn to the truth of their statement establishing probable cause in her presence and had signed the jurat following their statement, that she had signed the jurat requesting dispensation with the delivery requirement and had signed
Grabowski testified at the reopened hearing that both he and Perodeau had sworn to the contents of their statement before Judge Espinosa and had affixed their signatures to the jurat form. He further stated that Judge Espinosa had signed the order directing the search in the presence of both officers. Finally, Grabowski testified that neither he nor Perodeau had been aware of the absence of Judge Espinosa’s signature on the jurat prior to searching the premises described in the warrant.
The trial court adhered to its prior decision to suppress the evidence and to dismiss the charges against Colon, holding that the unsigned jurat rendered the warrant fatally defective. Perez, the second defendant, subsequently moved to suppress the evidence seized pursuant to the warrant. His motion was granted and the charges against him were also dismissed. The Appellate Court affirmed the trial court’s judgments. State v. Colon, supra, 32 Conn. App. 402.
We granted certification limited to the following issues: “(1) Under the circumstances of this case, did the failure of the issuing judge to sign the jurat on the affidavit invalidate the search warrant? (2) If the answer to question (1) is ‘yes,’ should the remedy have been exclusion of the evidence seized pursuant to the warrant?” State v. Colon, 227 Conn. 926, 632 A.2d 705 (1993). Because we conclude that the search warrant was valid despite the unsigned jurat, we need not address the second certified question.
The state argues that Judge Espinosa’s failure to sign the jurat following the detectives’ statement establishing probable cause did not render the search warrant in question invalid. We agree.
General Statutes § 54-33a (c),
Furthermore, in arriving at its decision that the purported affidavit of debt did not qualify as an affidavit, the Appellate Court in Willametz relied on the generally accepted definition of “affidavit,” stating that an affidavit is “ ‘[a]ny voluntary ex parte statement reduced to writing, and sworn to or affirmed before some person legally authorized to administer an oath or affirmation.” (Emphasis in original.) Id., 7; Ballen-tine’s Law Dictionary (3d Ed.); see 3 Am. Jur. 2d 380, Affidavits § 1 (1962). This definition does not preclude extrinsic evidence of the administration of an oath, nor does it mandate a signed jurat in order for a document to fall within its parameters. Therefore extrinsic evidence that Judge Espinosa had administered an oath to Grabowski and Perodeau, if credited, would supply the necessary ingredient to support a finding that there was a valid affidavit as defined in Willametz.
In suppressing the evidence seized, the trial court stated that it had assumed that Judge Espinosa had administered an oath to the detectives. It found, however, that, because the jurat was not signed, the administration of an oath was not evident from the four corners of the warrant application and, consequently, that there was not a valid affidavit to support the search warrant. The Appellate Court also concluded that a jurat signed by the issuing judge had to appear in the warrant application in order for an affidavit to be valid and that any defect in, or omission of, the jurat could not be remedied by extrinsic evidence.
Because we conclude that the jurat “ ‘is no part of the oath’ . . . and its absence is a defect curable by subsequent affidavits or testimony”; (citations omitted); People v. Zimmer, supra, 112 App. Div. 2d 501; the only remaining question is whether there was a proper finding that the affidavit had been sworn to by Grabowski and Perodeau. In the present case, extrinsic evidence was presented through the testimony of Grabowski and an affidavit from Judge Espinosa that the affidavit supporting the warrant had been executed under oath. The trial court, however, did not make a specific finding that Judge Espinosa had administered an oath to the detectives prior to issuing the warrant but merely “assumed” that she had. We therefore remand the case to the trial court for a determination of whether Judge Espinosa did, in fact, administer an oath to Grabowski and Perodeau. If the trial court so finds, the lack of
The judgment is reversed and the case is remanded to the Appellate Court with direction to remand the case to the trial court for further proceedings consistent with this opinion.
In this opinion Peters, C. J., and Borden, J., concurred.
Both the Appellate Court and the defendants relied on the definition of jurat provided in General Statutes § 3-94a (2): “ ‘Jurat’ means a notarial act in which a notary public certifies that a signatory, whose identity is personally known to the notary public or proven on the basis of satisfactory evidence, has made, in the notary public’s presence, a voluntary signature and taken an oath or affirmation vouching for the truthfulness of the signed document.” We note, however, that the definition of jurat contained in § 3-94a pertains to the statutory sections on notaries public, General Statutes §§ 3-94a to 3-95, and has no specific application to the present case.
A jurat is generally defined as “a certificate added to an affidavit stating when, before whom, and where it was made.” Webster’s Ninth New Collegiate Dictionary; see also Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 78 (Mo. 1965).
General Statutes § 54-33a (c) provides: “issuance of search warrant. . . .
“(c) A warrant may issue only on affidavit sworn to by the complainant or complainants before the judge and establishing the grounds for issuing*30 the warrant, which affidavit shall be part of the arrest file. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched. The warrant shall be directed to any police officer or a regularly organized police department or any state policeman or to a conservation officer, special conservation officer or patrolman acting pursuant to section 26-6. It shall state the grounds or probable cause for its issuance and it shall command the officer to search within a reasonable time the person, place or thing named, for the property specified.”
The defendant relies on State v. Grant, 176 Conn. 17, 404 A.2d 873 (1978), for the proposition that because criminal statutes are to be strictly construed, a valid search warrant must be supported by a written statement sworn to before the issuing magistrate, with a jurat signed by the issuing magistrate. In Grant, this court considered the statutory requirement that an application for a wiretap warrant be submitted under the oath or affirmation of a state’s attorney. In suppressing the evidence seized as a result of the wiretap, we held that the state’s attorney’s mere acknowledgement on the warrant application form failed to satisfy the requirement that the application be supported by oath or affirmation. Id., 23-24.
Grant is inapposite to the present case. This court’s decision in Grant focused solely on the importance of a sworn affidavit prior to the issuance of the wiretap warrant. In Grant, there was neither a signed attestation nor extrinsic evidence that the state’s attorney had taken an oath that the statements contained in the affidavit were true. In the present case, there was evidence that Grabowski and Perodeau, in fact, had sworn to the statements contained in the application for the search warrant.
Similarly, J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989), is inapposite to the present case. J. C. Penney Properties, Inc., required us to interpret the edict of General Statutes § 49-34 that a certificate of mechanic’s lien be “subscribed and sworn to by the claimant.” In that case, we held that “the oath must appear in writing on the certificate of mechanic’s lien for it to be valid under the statute.” Id. In so holding, we relied on Pendleton v. Button, 3 Conn. 406 (1820), wherein we stated: “ ‘It is provided by statute, that no deed shall be accounted complete in law, to convey real estate, but such as is written witnessed, acknowledged, and recorded. Tit. 142, c. 1., s. 7. The acknowledgment, to be recorded, must necessarily, be in writing; and such is the invariable practice.’ ” (Emphasis in original.) J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 517. Our holding in J. C. Penney Properties, Inc., that a valid certificate of mechanic’s lien contain a written oath, can be attributed to the statutory requirement, contained in § 49-34, that the lien certificate be recorded. Id. The oath, to be recorded, necessarily must be in writing. Because General Statutes § 54-33a (c) contains no similar recording requirement, J. C. Penney Properties, Inc., may be distinguished from the present case.
In other statutory provisions, when the legislature has intended to impose requirements upon the taking of an oath or affirmation it has done so expressly. See, e.g., General Statutes §§ 10a-179 (a), 10a-224 (a), 10a-253 (b), 32-11a (c) and 32-35 (d) (members of various boards shall take and subscribe an oath or affirmation prior to assuming office).
We recognize that, and the defendants cite, other jurisdictions that have held the jurat to be a necessary part of a valid affidavit. See Ex Parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987); Laurens County v. Keen, 214 Ga. 32, 35, 102 S.E.2d 697 (1958); Hough v. Weber, 202 Ill. App. 3d 674, 692, 560 N.E.2d 5, cert. denied, 135 Ill. 2d 556, 564 N.E.2d 837 (1990); Commonwealth v. Dozier, 366 N.E.2d 1270 (Mass. App. 1977); Commonwealth v. McAfee, 230 Pa. Super. 336, 337, 326 A.2d 522 (1974); Elam v. Yale Clinic, 783 S.W.2d 638, 643 (Tex. App. 1989).
We note, however, that in at least two of these jurisdictions the term “affidavit” had been defined by statute to require the signature of the officer administering the oath. See, e.g., Commonwealth v. Lardo, 240 Pa. Super. 107, 368 A.2d 324, 327 (1976), overruled in part, Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984) (relying on following statutory definition of term affidavit in upholding a search warrant: “A statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth to take acknowledgements of deeds, or authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office." [Emphasis added.]); Elam v. Yale Clinic, supra, 783 S.W.2d 643 (“An affidavit is defined as ‘a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.’ Tex. Gov’t Code Ann. § 312.011 [Vernon 1988].” [Emphasis added.]). The term affidavit has not been defined in our general statutes.
State v. Surowiecki, 184 Conn. 95, 440 A.2d 798 (1981), cited by the Appellate Court; State v. Colon, supra, 32 Conn. App. 407; is not inconsistent with our conclusion that an unsigned jurat does not invalidate an otherwise properly issued warrant. In Surowiecki, we held that the signature of the issuing judge on the section of the warrant commanding the search itself was necessary before a valid warrant could issue pursuant to General Statutes § 54-33a (c). State v. Surowiecki, supra, 97. In the present case, the section of the warrant directing the search was signed by Judge Espinosa and, therefore, the warrant complied with Surowiecki’s mandate that the authority for the search be evident on its face.
Dissenting Opinion
dissenting. I agree with the dissenting opinion of Justice Katz that the search warrant in this case was invalid. In view of this court’s decisions in J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989), and Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 620 A.2d 118 (1993), the reasoning of the majority eludes me.
In J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 512, 518, although the oath was administered to the lienor, there was, as in this case, no written recital of that fact and the court invalidated the lien. In Red Rooster Construction Co. v. River Associates, Inc., supra, 224 Conn. 577, 579, although the mechanic’s lien was signed by the lienor and the notary memorialized the lienor’s oath with a signature, the court held that the failure to conduct a formal ceremony was enough to invalidate the lien. This court in Red Rooster Construction Co. reaffirmed its reasoning in J. C. Penney Properties, Inc., as follows: “To validate a mechanic’s lien certificate without any evidence that the claimant performed some act or form of ceremony indicating that the claimant consciously undertook the obligation of an oath ‘would invite confusion, delay and uncertainty into an area where certainty and complete compliance with the statutory requirements are of paramount importance to inter
I am unable to understand why this court would apply a more forgiving standard in scrutinizing a defective search warrant than the requirement of strict compliance with the formalities of the oath it has repeatedly applied in cases such as J. C. Penney Properties, Inc., and Red Rooster Construction Co., where the validity of a mechanic’s lien was challenged. It would seem to me, as Justice Katz points out in her dissenting opinion, that we should be more concerned with the formalities of the oath when the fundamental constitutional right of privacy is implicated, as it is in the present case.
Accordingly, I join Justice Katz in her dissent.
I also agree with Justice Katz that a “good faith exception” to the exclusionary rule is inapplicable to this invalid warrant.
Dissenting Opinion
joins, dissenting. I disagree with the majority’s conclusion that the defective jurat did not invalidate the warrant.
“It has long been recognized that . . . rules of criminal procedure are to be strictly construed to protect the fundamental constitutional right to liberty. See State v. Tedesco, 175 Conn. 279, 291, 397 A.2d 1352 (1978); State v. Moore, 158 Conn. 461, 465, 262 A.2d 166 (1969); Perry v. Johnson, 37 Conn. 32, 35 (1870).” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981); see also State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). Additionally, this court has specifically directed that strict construction of statutory provisions pertaining to search warrants is imperative. See State v. Surowiecki, 184 Conn. 95, 98, 440 A.2d 798 (1981); State v. Cook, supra, 523. Although the majority acknowledges this rule of strict construction, it
In State v. Surowiecki, supra, 184 Conn. 97, we strictly construed the word “issue” contained in § 54-33a (c)
The majority concludes that State v. Surowiecki, supra, 184 Conn. 95, is satisfied in this case because the section of the warrant directing the search was signed by the issuing judge. By so disposing of Sur-owiecki, however, the majority misses the point. That is, the majority fails to explain why in Surowiecki we strictly construed the word “issue” to require a lawful signature, yet decline in this case to construe strictly the terms “affidavit” or “sworn to” to require the same.
The majority’s conclusion that an unsigned jurat does not affect the validity of a warrant when it is proven by extrinsic evidence that the affidavit was properly sworn to is also inconsistent with J. C. Penney Properties, Inc. v. Peter M. Santella Co., 210 Conn. 511, 555 A.2d 990 (1989). In J. C. Penney Properties, Inc., we construed General Statutes § 49-34 (1) (C),
It is significant that in J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 210 Conn. 514, we “endorsed a policy favoring liberal construction of claimed inadequacies in certificates of mechanics’ liens in order to achieve the remedial purposes of the mechanics’ lien statutes.” See also H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981) (“[provisions of mechanics’ lien law should be liberally construed so as to reasonably and fairly implement its remedial intent”). Thus, we held that, even if liberally construed, the words “sworn to” contained in § 49-34 required a writing. J. C. Penney Properties, Inc. v. Peter M. Santella Co., supra, 518. Certainly, a strict construction of the same words as used in a criminal statute should require nothing less.
Indeed, the policies guiding strict construction of criminal statutes are even more compelling than those justifying our liberal construction of § 49-34.1 can think of no sphere in which “certainty and complete compliance with the statutory requirements” are of greater “importance to interested parties and the general public” than in the area of fundamental constitutional rights. Id., 518. To validate a warrant that lacks a com
These same policies have persuaded other state courts to hold invalid an affidavit supporting a search warrant in the absence of a valid jurat. See, e.g., Commonwealth v. Dozier, 5 Mass. App. 865, 366 N.E.2d 1270 (1977) (motion to suppress evidence seized from defendant’s apartment and automobile pursuant to search warrant supported by affidavit on which jurat was unsigned properly allowed because document was inadequate on its face as basis for warrant); Commonwealth v. McAfee, 230 Pa. Super. 336, 339, 326 A.2d 522 (1974) (provision in Pennsylvania constitution that warrant be “supported by oath or affirmation subscribed to by the affiant” implies that there be some written record of fact that affiant was in fact sworn, to which he can subscribe, and mere oral testimony that affidavit upon which warrant issued was made under oath would not comply with this clause); see also footnote 5 of the majority opinion and cases cited therein.
I conclude that in the absence of a completed jurat, the affidavit signed by Detectives Grabowski and Perodeau was not properly sworn to and that the warrant was therefore invalid. Finally, I do not agree with the state that the “good faith” exception to the exclusionary rule approved in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), is applicable to this invalid search warrant. I agree with the Appellate Court that we decided that issue in State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990). Accordingly, I would affirm the. judgment of the Appellate Court.
In State v. Surowiecki, supra, 184 Conn. 97, we construed that portion of General Statutes § 54-33a (c) which provides that if a judge “is satisfied that grounds for the [warrant] application exist or that there is probable cause to believe that they exist, he [or she] shall issue a warrant identifying the property and naming or describing the person, place or thing to be searched.” (Emphasis added.)
There was “no dispute that the judge intended to sign the search warrant . . . .” State v. Surowiecki, supra, 184 Conn. 96.
General Statutes § 49-34 (1) (C) provides: “certificate of lien to be recorded and notice given to owner. A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) within ninety days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land . . . (C) subscribed and sworn to by the claimant. . . .’’(Emphasis added.)