MADISON - Should failure to sign a search warrant invalidate the evidence obtained during the search, the Wisconsin State Supreme Court was asked Wednesday in a heroin possession case from Racine.
Racine County prosecutors are asking the state's high court to restore the case and the 1.1 grams of heroin police allegedly found at Wilton E. Tye's 11th Street address after Circuit Judge Dennis Flynn issued a warrant that had not been signed by a police investigator.
Richard Tharinger, a 30-year-old veteran of the Racine Police Department, prepared an affidavit on June 28, 1999, to support a request for a search warrant of Tye's residence days after police had conducted a controlled buy of heroin there, according to court documents.
Tharinger showed the affidavit to an assistant district attorney who approved it and filed it with Flynn, who reviewed the affidavit for probable cause that a crime had been committed and issued the warrant.
After the search, Tharinger noticed that he had not signed the affidavit. He notified the district attorney's office and prepared a second affidavit, stating the original affidavit was true and signed the second.
Tye sought to suppress the heroin evidence after his case was bound over for trial. After a preliminary hearing in September 1999, Circuit Judge Emily Muellar ruled that without a signature the warrant was not based on facts sworn to by law enforcement and the evidence was not admissible.
Without the evidence there is not much of a case against Tye, admitted Assistant District Attorney Sharon Riek, but the case also should be dismissed based on an honest mistake.
"Both sides agreed the affidavit established probable cause. The only thing missing was a signature," said Riek, who added that the court should establish a "good faith" exception to the signature requirement.
That signature is not only absolutely necessary, it provides a constitutional protection against unreasonable search and seizure, said Tye's attorney Mark Richards.
"The Fourth Amendment is not a technicality, it requires a warrant to be issued based on a sworn statement … and I don't want to see the Fourth Amendment weaken by a case involving $20 worth of heroin," Richards said.
Richards said he had never seen a search warrant issued without a signature, and he has been a prosecutor for four years and a defense attorney for 10 years.
"I've talked to a lot of attorneys who have never heard of such a thing. Since it happens so rarely let's not carve out a statutory exception to the Constitution," he said.
Richards would not comment on the how the state supreme court may decide the case but said in recent rulings the court has expanded police powers in search situations.
Assistant Attorney General William Ganser, who appealed Muellar's decision to dismiss the case, argued that Tharinger's signature on the second affidavit "fixed" it and did not affect Tye's rights. Since there is no case law adopting a "good faith" exception in such a situation, Ganser argued that this is the perfect circumstance to create one.
Because there has been no ruling on the "good faith" exception and it involves an important constitutional right, the Waukesha-based District 2 Court of Appeals asked the state supreme court to directly hear the case.
The high court does not have to take the case and is not expected to decide whether or not to accept it for a few months.