Jeffrey L. Moeser v. Wisconsin

The Fourth Amendment demands that “no Warrants shall issue[ ] but upon probable cause, supported by Oath or affirmation.” U.S. Const. Amend. IV (emphasis added). Born out of the founding generation’s hatred of general warrants, this requirement is an essential protection of individual liberty. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 558 (1999). Yet this Court has never addressed what this provision requires. Lacking guidance, the federal courts of appeals and state high courts have split four ways over what counts as an “Oath or affirmation” and apply this central constitutional protection against government overreach in conflicting ways. The question presented is whether a sheriff (1) who indisputably did not make an oral or written oath or affirmation to anyone and (2) who falsely signed a preprinted affidavit stating that he had been “first duly sworn on oath,” (3) which was in turn notarized by a fellow law enforcement officer who also falsely asserted in the jurat that the affidavit had been “sworn to,” “supported [the warrant application] by Oath or affirmation” because, as the Wisconsin Supreme Court held, “the [original] officer was impressed with th[e] obligation” to tell the truth. App., infra, 4a-5a (quoting State v. Tye, 636 N.W.2d 473, 478 (2001)) (internal quotation marks omitted).