Electronic Search Warrants in Colorado
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 44 No. 6 Pg. 45 |
| Pages | 45 |
| Publication year | 2015 |
Articles
Criminal Law
Electronic Search Warrants in Colorado
By H. Morley Swingle
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
This article discusses the issues involved in the use of electronic search warrants—that is, search warrants requested wholly by electronic means. Modern technology now provides several fast electronic ways for police officers and prosecutors to obtain search warrants from judges, but care must always be taken not to violate Fourth Amendment rights.
When the Founding Fathers drafted the oath requirement of the Fourth Amendment, they most likely pictured constables galloping on horseback to the magistrate's house to personally swear to the search warrant affidavit in front of the judge. The idea of transmitting documents and swearing to an oath by telephone, fax machine, or email would have been as unforeseen to them as planes, trains, and automobiles. But times have changed. Both federal[1] and Colorado[2] rules now allow search warrants to be obtained by electronic means. The U.S. Supreme Court has recently stated:
Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communications such as email, and video conferencing.[3]
No Colorado appellate case has yet addressed all of the issues that may arise, but cases and commentary from other jurisdictions may prove helpful as prosecutors, judges, and defense lawyers adapt to this new weapon recently added to the law enforcement arsenal.
The Constitutions
The Fourth Amendment to the U.S. Constitution states that "no warrants shall issue but upon probable cause, supported by oath or affirmation."[4] Article II, § 7 of the Colorado Constitution prohibits the issuance of a search warrant unless there is probable cause "supported by oath or affirmation reduced to writing."[5] The Colorado Supreme Court has noted:
Neither the United States nor Colorado Constitution specifically addresses whether the applicant for a search warrant must physically appear before the issuing judge, nor does the federal or state constitution expressly mandate that the applicant must swear to or affirm the affidavit in the physical presence of the judge.[6]
Both require, however, that the probable cause be established by oath or affirmation.
Colorado Rule 41(c)(3)
The Federal Rules of Criminal Procedure specifically authorize the issuance of search warrants “based on information communicated by telephone or other reliable electronic means.”[7] Part of the reason Congress decided to allow telephonic search warrants was to make it easier to get warrants quickly and thereby decrease the need and prevalence of warrantless searches.[8] The Federal Rules initially authorized telephonic search warrants in 1977, approved the use of fax machines in 1993,[9] and added “other reliable electronic means” in 2006.
Likewise, Colorado first authorized the use of fax machines for warrants in 1992 changes to Rule 41,[10] but later broadened the language to include “electronic transfer with electronic signatures” effective February 10, 2011.[11] The Committee Comment says the amendment was “intended to facilitate the issuance of warrants by eliminating the need to physically carry the supporting affidavit to the judge.”[12] Here is the applicable part of the rule, with the 1992 changes in italics and the 2011 changes underlined:
(c)(3) Application and Issuance of a Warrant by Facsimile– or Electronic Transmission. A warrant, signed affidavit and accompanying papers documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted papers documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. Upon receipt of an affidavit by electronic transfer with an electronic signature, a judge or magistrate shall mark the affidavit as “original.” A warrant approved by the judge or magistrate, signed with electronic signature, shall be marked as “original.” The judge or magistrate shall facilitate the filing of the original affidavit and original warrant in an uneditable format with the clerk of the court. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either the original or the fax a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.
Oath Requirement
The most obvious attack on electronic search warrants has been the claim that they do not meet the oath or affirmation requirement of the Fourth Amendment.[13] An argument can be made that an officer who is not raising his or her hand and swearing in the physical presence of a judge has not adequately been placed under oath. The oath requirement exists to guarantee a trustworthy recitation of probable cause for the issuance of a search warrant. Its purpose is to “ensure that the truth will be told by insuring that the witness or affiant will be impressed with the solemnity and importance of his words.”[14] The leading case on this issue held that the constitutionality of an oath does not depend on it being taken in the physical presence of the magistrate.[15]
As discussed in more detail below, the fax machine rule changes and the newer e-mail changes have made it clear that the oath for Colorado search warrants no longer needs to be taken in person.
Search Warrants by Fax
The Colorado Rule specifically allows for a signed search warrant affidavit to be sent to the judge by fax, and adds that the affidavit “may be sworn to or affirmed by administration of the oath over the telephone by the judge.”[16] Combining the sending of the written affidavit to the judge with the oath being administered over the telephone would seem to be the safest practice to follow in Colorado, because that exact procedure is specifically authorized by the rule. There are no Colorado cases on point, but at least three appellate courts in other jurisdictions have held that it does not violate the Fourth Amendment for a police officer to fax a search warrant affidavit to a judge and then swear to it over the telephone.[17]
Because the Colorado Rule states that the affidavit may be sworn over the telephone instead of saying that it shall be sworn over the telephone, the door may have been left open to satisfy the oath requirement in other ways. Even before Rule 41(c)(3) was amended to specifically authorize the issuance of search warrants by fax, the Colorado Supreme Court refused to suppress evidence seized pursuant to a search warrant when the officer applying for the warrant had sworn to the affidavit in front of a court clerk before faxing it to the judge.[18] Other jurisdictions have unanimously approved taking the oath in front of a notary before faxing it to a judge.[19]
Another way to satisfy the oath requirement is for the affidavit to specifically state that it is being signed under penalty of criminal prosecution for making a false affidavit. The New York Court of Appeals ruled that facing the threat of criminal prosecution satisfies the oath requirement by compelling the officer to state the facts accurately.[20] In People v. Sullivan, the form specifically said: “False statements made herein are punishable as a Class A Misdemeanor pursuant to section 201.45 of the Penal Law.”[21] In Colorado, a false statement by an officer on a form bearing such a notice would be punishable as perjury in the second degree or false swearing.[22] Fourth Amendment scholar Wayne R. LeFave has noted that the “true test” for meeting the oath requirement is whether the affiant could be charged with perjury if a material allegation in the affidavit were false.[23] Under this analysis, this procedure should pass constitutional muster in Colorado.
Search Warrants by E-Mail
The Colorado Rule also specifically authorizes search warrants to be sought by the submission of affidavits by “electronic transfer with electronic signature.”[24] When the federal rule was amended in 2006 using identical language, the Advisory Committee Notes instructed that “[t]he term ‘electronic’ is used to provide some flexibility to the rule and make allowance for further...
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