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December 28, 2014
  United States v. Cruz- Tenth Circuit
Case Name: United States v. Cruz -- Tenth Circuit

Headline: Tenth Circuit Holds that Lack of Signature Does Not Make Warrant Invalid

Areas of Law: Criminal Procedure, Constitutional Law

Issue Presented:

1. Must a search warrant be signed and dated by the issuing judge in order to be valid?

Brief Summary:

The Tenth Circuit held that a warrant is not invalid under the Fourth Amendment simply because it lacked the signature of a judge on the face of the warrant. After losing on direct appeal, Defendant Cruz filed a motion to vacate, set aside, or correct his sentence on the basis of ineffective assistance of counsel. Cruz alleged that his trial counsel failed to adequately advise him about the immigration consequences of going to trial and about various plea agreements offered by the state. Further, he argued that his trial counsel failed to file a motion to suppress evidence found based on the search warrant, and argued that the warrant was invalid because it lacked a signature and date. The Tenth Circuit affirmed the district court's decision that the warrant was valid, and affirmed the district court's determination on resentencing.

Extended Summary:

Defendant Raul Cruz was convicted of knowingly and intentionally possessing with intent to distribute methamphetamine and was sentenced to 63 months in prison. After a failed direct appeal, Cruz filed a motion to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel because his trial attorney did not make a motion to suppress evidence based on the warrant not being signed or dated by the issuing judge. The district court denied relief on that basis, and Cruz appealed.
A search warrant for Cruz's residence was issued on the affidavit of a law enforcement officer who swore that he had reason to believe that methamphetamine, other controlled substances, drug paraphernalia, and money from narcotics transactions was present in the residence. The affidavit referenced information gathered from a confidential source and stated that the officer had conducted a controlled purchase of methamphetamine.
The warrant was signed and dated by an assistant district attorney on March 26, 2010, and presented to District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit, and the date line provided was also filled in by either Judge Martinez or the officer. The warrant form itself was not signed, but the affidavit that Judge Martinez had signed and dated was incorporated by reference.
Nearly one month after the search warrant was executed, Judge Martinez signed and dated the search warrant, indicating that the warrant was dated on the 26th of March, 2010 at 10:00. Judge Martinez also hand-wrote "Nunc Pro Tunc on this April 23, 2010."
Cruz was convicted in September 2010, sentenced in June 2011, and was found subject to removal proceedings because he was born in Mexico and granted permanent residency. The conviction and sentence were affirmed on appeal.
In 2012, Cruz filed the motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 alleging two claims of ineffective assistance of counsel. The first claim stated that the warrant was invalid because Judge Martinez did not sign or date the warrant, and his trial attorney did not move to suppress the evidence or statements gathered as a result of the execution of the warrant. Cruz also alleged that he was not adequately advised concerning plea offers. These claims were both found by a magistrate judge to have merit, and a district court order amended and adopted in part the magistrate judge's proposed findings and recommended disposition. The district court found that the signature on the affidavit and the nunc pro tunc signature on the warrant was sufficient to show that Judge Martiinez had found probable cause and authorized the search. Further, the district court found that the warrant would have been entitled to the good faith exception to the exclusionary rule. Thus, the failure to file a motion to suppress did not prejudice Cruz because the evidence would not have been suppressed even if the motion were filed. The district court also noted that vacating the conviction would not be the proper remedy for the failure to properly advise about the plea agreement, but rather setting aside the sentence. Thus, the district court resentenced Cruz to 46 months followed by 3-years of supervised release and still noted he was subject to removal.
The Tenth Circuit noted that the appeal was timely, and that the appeal was an appeal of the § 2255 proceeding. It applied a de novo standard of review.
With respect to the motion to suppress, Cruz argued that the search warrant was invalid because it had not been signed or dated by the judge, and thus had not been "issued" by the judge. He argued that a motion to suppress would have resulted in the suppression of the evidence seized at his residence and the suppression of his statements, which would have led to dismissal of the charges or an acquittal.
The majority agreed with the First Circuit, which stated in United States v. Lyons, 740 F.3d 724 (1st Cir.), cert. denied, 134 S. Ct. 2743 (2014), that there is nothing in the Fourth Amendment that states that the lack of a signature makes a warrant invalid. Rather, only probable cause and a description of the place to be searched are required by the Fourth Amendment. It also noted that the federal and state rules of criminal procedure that refer to search warrants do not require a signature.
The majority explained that Lyons had very similar facts to the present case, with a state judge reviewing the application for the warrant, determining that probable cause existed, signing the application and the affidavit, but forgetting to sign the warrant itself. The day after the execution of the warrant, law enforcement noticed the omission. The prosecutor returned to the judge, who signed the warrant and wrote a note explaining the mistake. The First Circuit rejected the argument that the lack of signature before the execution of the warrant made it invalid, finding that there was no reason to find implicit in the Fourth Amendment that the magistrate must sign the warrant. Further, the First Circuit noted that federal appellate courts in other situations rejected "formalistic approaches to signatures in warrants." United States v. Lyons, 740 F.3d at 725. The First Circuit stated that it would not find a constitutional violation because the express mandates of the Constitution were satisfied. The Tenth Circuit agreed, but gave special attention to language in Lyons that stated that law enforcement still has ample reason to acquire signatures, and that the signature of the warrant provides easy and certain proof that the warrant was in fact issued.
Cruz responded to Lyons by arguing that it did not address whether the warrant was facially valid under Groh v. Ramirez, 540 U.S. 551 (2004). Under Groh, a warrant must contain (1) a finding of probable cause; (2) be supported by oath; (3) describe what is to be searched and (4) describe what is to be seized. Cruz argued that the lack of signature showed no indication that a magistrate had made a determination of probable cause. 540 U.S. at 557.
The majority stated that Groh did not impose a facial requirement under the Fourth Amendment, but rather a substantive requirement of probable cause. It also noted that Groh dealt with the requirement that the warrant describe the items or individuals to be seized.
The majority then addressed Cruz's argument that the reasoning in United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007), should be followed. In Evans, a law enforcement agent requested a warrant, and presented the magistrate judge with an affidavit summarizing his investigation. The judge then placed the agent under oath and had the agent sign the application and the affidavit. The judge then signed the application and affidavit, in two places, but did not indicate the date before which the warrant must be executed. The magistrate judge later testified that it was an oversight, and that his usual practice was to sign an application and an affidavit only when he intended to issue a warrant.
In Evans, law enforcement did not notice until after the warrant was executed that the search warrant was unsigned. The U.S. Attorney's Office advised law enforcement to do nothing about it because the damage was already done. The defendants moved to suppress the evidence and statements obtained arising from the execution of the search warrant, and the motions were granted by the district court, which held that an unsigned warrant was not a warrant under the Fourth Amendment. The district court in Evans relied on Groh, and stated that the search warrant contained no indication that it was an officially authorized warrant.
The majority explained that the court in Evans rejected the idea that the search warrant was officially authorized because the magistrate judge signed the warrant application and affidavit. Further, the court in Evans rejected the idea that the warrant was valid because the magistrate judge intended to sign it. The Evans court also rejected the government's argument that the good faith exception to the exclusionary rule should apply. However, the majority stated that the decision in Evans was erroneous, and declined to follow its reasoning. Further, the majority analyzed the meaning of the term "issue" and hesitated to follow Evans. "Issue" is defined by the Oxford English Dictionary Online as "[t]he action of going, passing, or flowing out." By replacing the word "issue" with its definition, the majority found that this definition matches up with Groh's interpretation of the Fourth Amendment, which does not have any particular technical requirements.
Finally, the majority noted that even if the warrant were deficient, the good faith exception set forth in United States v. Leon, 468 U.S. 897 (1984), would apply. In Leon, the court explained that suppression is appropriate if "(1) the magistrate or judge was misled by information that the affiant was false or would have known was false except for reckless disregard for the truth; (2) where the issuing magistrate abandoned his judicial role; (3) when the warrant was based on an affidavit that lacked indicia of probable cause so as to make belief in its existence unreasonable and (4) when the warrant is so facially deficient that the executing officers cannot reasonably assume that it is a valid warrant. Leon, 468 U.S. at 922. The majority explained that none of these factors applied to the warrant issued by Judge Martinez, and stated that the only unusual thing was the lack of the judge's signature on the face of the warrant. Thus, the Leon good faith exception applied.
The majority affirmed the district court's decision to deny the motion with respect to the ineffective assistance of counsel claim.

To read the full opinion, please visit:

http://www.ca10.uscourts.gov/opinions/14/14-2017.pdf

Panel: Briscoe, Holmes, Bacharach

Date of Issued Opinion: December 22, 2014

Docket Number: No. 14-2017

Decided: The Defendant's sentence and conviction were affirmed.

Counsel:

Todd A. Coberly of Coberly & Attrep, Santa Fe, New Mexico, for Defendant-Appellant.

Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Author: Briscoe

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 12/28/2014 05:38 PM     10th Circuit  

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