State v. Nunn

783 P.2d 26 (1989)

STATE of Oregon, Respondent, v. Judy Colleen NUNN, Appellant.

CM 88-0243; CA A51003.

Court of Appeals of Oregon.

Argued and Submitted September 13, 1989.

Decided November 29, 1989.

Steven Ensor, Corvallis, argued the cause, for appellant. With him on the brief, were Patrick L. Hadlock, Larry W. Stuber and Ringo & Stuber, P.C., Corvallis.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.

RIGGS, Judge.

Defendant appeals her conviction, after a stipulated facts trial, for possession of a controlled substance. ORS 475.992. She assigns as error the trial court's failure to grant her motion to suppress. We affirm.

This is a case of first impression in this state. The issue is whether an affidavit supporting a search warrant is defective because the magistrate who issued the warrant failed to sign the jurat attesting that the affidavit was executed under oath.

Defendant contends that the magistrate's failure to sign the jurat makes the warrant constitutionally insufficient, because it denies her the protection provided by the warrant's being supported by oath or affirmation. Or.Const., Art. I, § 9. Defendant contends further that extrinsic evidence should not be used to establish that an oath or affirmation supported the warrant if the jurat is absent. The state argues that the court may properly look to evidence extrinsic to the affidavit to determine if an affidavit was executed under oath or affirmation and was, therefore, constitutionally sufficient.

Defendant cites two Pennsylvania cases interpreting a similar constitutional provision that held that a jurat or other written record that an affiant was under oath is constitutionally required. Commonwealth v. Williams, 237 Pa.Super. 324, 352 A.2d 67 (1975); Commonwealth v. McAfee, 230 Pa.Super. 336, 326 A.2d 522 (1974). The Pennsylvania court reasoned that such a requirement was implicit in the oath and affirmation provision and necessary to guarantee that the provision would be followed. We agree that the constitutional safeguard must be observed. However, we also agree with those jurisdictions that have held that a written record need not be the only way to show that the requirement was observed. See, e.g., Milne v. State, 607 P.2d 360, 362, reh. den. 614 P.2d 766 (Alaska 1980); White v. State, 702 P.2d 1058 (Okla. Crim. 1985).

Article I, section 9, does not specify a procedure for determining whether an *27 affidavit is supported by oath or affirmation; it simply requires that it, in fact, be so supported. The jurat on an affidavit provides an effective means of attesting that an affidavit was sworn to under oath, but it is not the only effective or permissible means.[1] Here, the court found, from the affiant's testimony, that the affidavit supporting the warrant was executed under oath. That testimony is undisputed, and nothing in the constitution prohibited the court from considering it. We hold that the trial court properly considered extrinsic evidence in finding that the oath or affirmation requirement had been met.

Affirmed.

[1] ORS 45.020, which defines an affidavit, includes no requirement that the oath or affirmation be supported by a written record:

"An affidavit is a written declaration under oath, made without notice to the adverse party."