This opinion is subject to revision before final

publication in the Pacific Reporter

2014 UT 11

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

GABRIEL GUTIERREZ-PEREZ,

Appellant.

No. 20120455

Filed April 29, 2014

Third District, Salt Lake Dep’t

The Honorable Judith S.H. Atherton

No. 111904824

Attorneys:

Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen., 

Salt Lake City, for appellee

David L. Crowley, Joseph Jardine, Farmington, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, 

JUSTICE PARRISH, and JUSTICE LEE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

INTRODUCTION

¶1 Gabriel Gutierrez-Perez (Defendant) pled guilty to 

criminally negligent automobile homicide and driving under the 

influence of alcohol. Before making this plea, he reserved his right to 

appeal the district court’s denial of his motion to suppress evidence 

obtained through a blood draw. Defendant contends that the 

affidavit submitted by law enforcement in order to obtain the 

warrant to draw his blood was not supported by an oath or 

affirmation, as required by both the United States and Utah 

constitutions. Accordingly, he argues in this appeal that the district 
STATE v. GUTIERREZ-PEREZ

Opinion of the Court

court erred when it denied his motion to suppress because the 

warrant was unconstitutional. 

¶2 We disagree. The district court was correct when it 

concluded that the warrant application was supported by an 

affirmation, thereby satisfying the “Oath or affirmation” 

requirements of both the United States and Utah constitutions. We 

therefore affirm the district court’s denial of Defendant’s motion to 

suppress.

BACKGROUND

¶3 On May 22, 2011, Defendant was involved in a multi-vehicle 

automobile accident after he failed to stop at a red light. Several 

people were injured and one person died as a result of the accident. 

Following the accident, Defendant fled the scene but was soon 

captured by the police. He admitted to the police officers on the 

scene that he had been drinking alcohol, and again, while he was 

being transported to the hospital, admitted to the officers that he had 

been drinking throughout the night prior to the accident. 

¶4 The investigating officer remotely applied for and obtained a 

warrant to draw Defendant’s blood by logging onto the Utah 

Criminal Justice Information System and applying for an eWarrant. 

The eWarrant application included a screen labeled “Affidavit

Submission for eWarrant” and included the statement: “By 

submitting this affidavit, I declare under criminal penalty of the State 

of Utah that the foregoing is true and correct.” The officer applying 

for the warrant electronically submitted the eWarrant application, 

and the on-call judge found probable cause to believe that 

Defendant’s blood contained evidence that he had been driving 

while under the influence of alcohol and issued the eWarrant. 

¶5 After obtaining the eWarrant, the police executed it and 

drew Defendant’s blood two separate times, the second being about 

one hour after the first. Three days later, using the same eWarrant 

system, the police obtained another warrant to obtain blood samples 

that were drawn at the hospital on the day of the accident. The 

results from a test of Defendant’s blood indicated that his blood 

alcohol level at the time of the blood draw was 0.11. 

¶6 Defendant moved to suppress the evidence obtained by 

these warrants on the ground that they were unconstitutional since 

they were not supported by an oath or affirmation, as required by 

both the Utah and United States constitutions. The district court 

denied the motion. Defendant eventually pled guilty to criminally 

negligent automobile homicide and driving under the influence of 

alcohol, but reserved his right to challenge the district court’s 

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Opinion of the Court

decision to deny his motion to suppress on appeal. We have 

jurisdiction pursuant to section 78A-3-102(3)(b) of the Utah Code.

STANDARD OF REVIEW

¶7 The issue in this case is whether the district court properly 

concluded that Utah’s eWarrant application satisfies the 

constitutional “Oath or affirmation” requirement. “The district 

court’s ruling on a motion to suppress is reviewed for correctness, 

including its application of the law to the facts.”1

ANALYSIS

¶8 This case involves a single issue: whether the procedure 

used to obtain the warrants to draw Defendant’s blood—Utah’s 

eWarrant system—meets the constitutional requirement that a 

warrant issue only upon probable cause supported by an “Oath or 

affirmation.”2 The State concedes that the eWarrant application does 

not include an oath, but argues that it is nevertheless constitutionally 

sufficient because it is supported by an affirmation. Defendant, on 

the other hand, argues that the eWarrant application is 

unconstitutional because it incorporates neither an oath nor an 

affirmation. Defendant advances a number of arguments in support 

of this conclusion. First, he argues that we have already set forth the 

requirements for a valid oath or affirmation in Mickelsen v. Craigco, 

Inc.3 and that the affirmation at issue in this case clearly does not 

comply with those requirements. Second, he argues that because the 

eWarrant application incorporates language from the Utah statute 

governing “unsworn declarations,” we must therefore construe it as 

an unsworn declaration instead of an oath or affirmation. Third and 

finally, he argues that the eWarrant application does not qualify as 

an affirmation because it does not explicitly state that the affiant may 

be subject to prosecution for perjury if he makes a false statement. 

¶9 We are not persuaded by any of these arguments. Instead, 

we conclude that, given the original understanding of what 

constitutes an “affirmation” at common law and at the time of our 

nation’s founding, the language used in the eWarrant application is 

sufficient to satisfy the constitutional requirement that the warrant be 

1 State v. Price, 2012 UT 7, ¶ 5, 270 P.3d 527 (internal quotation 

marks omitted). 

2 U.S. CONST. amend. IV; UTAH CONST. art. I, § 14 (“oath” not 

capitalized).

3 767 P.2d 561, 564 (Utah 1989).

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issued upon “Oath or affirmation.” Accordingly, we affirm the 

district court’s denial of Defendant’s motion to suppress.

I. MICKELSEN DOES NOT SET FORTH ANY REQUIREMENTS 

FOR AN OATH OR AFFIRMATION BECAUSE THAT CASE 

WAS CONCERNED WITH VALID VERIFICATIONS AND IS 

THEREFORE INAPPLICABLE

¶10 Defendant first argues that we have already set forth the 

requirements for a valid oath or affirmation in Mickelsen v. Craigco, 

Inc.4 In that case, we stated that 

[i]n order to end the confusion in our case law, we join 

those jurisdictions and the dissenters on our own Court 

in Colman v. Schwendiman. We adopt as our rule that for 

a valid verification, (1) there must be a correct written 

oath or affirmation, and (2) it must be signed by the 

affiant in the presence of a notary or other person 

authorized to take oaths, and (3) the latter must affix a 

proper jurat. There is no minimum requirement that an 

oath must be administered to the affiant or that the 

affiant must speak an oral oath or affirmation or raise 

his or her hand.5

Throughout his opening brief, Defendant repeatedly contends that 

the eWarrant application fails to meet this standard. Specifically, he 

argues that because (1) the affidavit was not signed in the presence of 

a notary or another person who was authorized to take oaths; and 

(2) because there was no jurat affixed to the officer’s affidavit, it is 

therefore not a proper written oath or affirmation. Defendant also 

contends that the eWarrant application was improper because the 

officer applying for the warrant never spoke with the magistrate and 

was not verbally administered an oath for either warrant application 

that he submitted.6

¶11 We do not agree with this reading of Mickelsen and instead 

conclude that the requirements set forth in Mickelsen are inapplicable 

to this case. Contrary to Defendant’s argument, the three 

4 767 P.2d 561 (Utah 1989).

5 Id. at 564 (internal quotation marks omitted).

6 The State does not dispute that the affidavit was not signed 

in the presence of a notary or another person that was authorized 

to take oaths and that there was no jurat affixed to the officer’s 

affidavit. 

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Opinion of the Court

requirements set forth in Mickelsen do not establish a standard for 

valid “oaths or affirmations.” On the contrary, those requirements 

were clearly set forth in order to establish a rule for a valid 

verification.7 Indeed, the first requirement set forth is that “there must 

be a correct written oath or affirmation.”8 But if this really is the first 

requirement for a valid oath or affirmation, as Defendant contends, 

then Defendant’s proposed standard is circular, since in order to 

have a valid oath or affirmation you would first have to obtain a 

valid oath or affirmation. Accordingly, we reject Defendant’s reading 

of Mickelsen and conclude that it is inapplicable here.

II. THE LANGUAGE USED IN THE E-WARRANT APPLICATION 

IS NOT PER SE AN UNSWORN DECLARATION SIMPLY 

BECAUSE IT INCORPORATES STATUTORY LANGUAGE

¶12 Defendant next points out that the language used in the 

eWarrant application is taken directly from section 78B-5-705 of the 

Utah Code, which is entitled “Unsworn declaration in lieu of 

affidavit.” That section states as follows:

(1) If the Utah Rules of Criminal Procedure, Civil 

Procedure, or Evidence require or permit a written 

declaration upon oath, an individual may, with like 

force and effect, provide an unsworn written 

declaration, subscribed and dated under penalty of this 

section, in substantially the following form: “I declare 

(or certify, verify or state) under criminal penalty of the 

State of Utah that the foregoing is true and correct. 

Executed on (date). (Signature)”.

(2) A person who knowingly makes a false written 

statement as provided under Subsection (1) is guilty 

of a class B misdemeanor.9

Defendant then argues that because the language of the eWarrant 

application appears to be taken directly from section 78B-5-705 and 

because that section is entitled “Unsworn declaration in lieu of 

affidavit,” the statement that the officer submitted to the magistrate 

must be interpreted as an unsworn declaration and not as an oath or 

affirmation. 

7 Id. at 563–64.

8 Id. at 564 (internal quotation marks omitted).

9 UTAH CODE § 78B-5-705.

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Opinion of the Court

¶13 We reject this argument because it assumes that the 

eWarrant application must be interpreted as an “unsworn 

declaration” simply because its language is the same or similar to the 

language identified in a statute entitled “Unsworn declaration in lieu 

of affidavit.” Such a conclusion would be too hasty, however, 

because neither the United States nor the Utah constitution explicitly 

address the question of what constitutes a valid oath or affirmation, 

and the United States Supreme Court has also not yet addressed that 

issue. Accordingly, it is our task to determine “whether [the 

language] in question would have constituted a[n ’oath or 

affirmation‘] within the original meaning of the Fourth 

Amendment.”10 And if it turns out that the eWarrant application’s 

language would fit within that original meaning, then it is 

completely irrelevant whether the text was drawn from a statute 

governing “unsworn declarations” because it would still pass 

constitutional muster. As shown below, we conclude that the 

language used in the eWarrant application does qualify as an 

“affirmation” under the original meaning of that term, and 

accordingly we hold that the eWarrant application was supported by 

an affirmation as required by the Fourth Amendment.

A. The Language Used in the eWarrant Application Falls Within the 

Original Meaning of “Affirmation” and Is Therefore Constitutional

¶14 The vast majority of the State’s brief is devoted to an analysis 

of the historical meaning of the terms “Oath” and “affirmation” in an 

attempt to shed light on what those terms meant during the founding 

era. The State contends that this analysis is appropriate because the 

text of the Fourth Amendment does not give any clues as to what is 

meant by the “Oath or affirmation” requirement. Hence, it is 

appropriate to interpret the requirement’s import by “begin[ning] 

with history,” and, in particular, “the statutes and common law of 

the founding era.”11 Based on this historical analysis, the State 

concludes that the language in the eWarrant application comports 

with the historical meaning of “affirmation” and therefore satisfies 

the constitutional requirement. For the reasons stated below, we 

agree.

¶15 The State concedes that in submitting the eWarrant affidavit,

the applying officer made an affirmation, not an oath. The key 

distinction between an “Oath” as opposed to an “affirmation” is that 

10 United States v. Jones, __ U.S. __, 132 S. Ct. 945, 950 n.3 (2012).

11 Virginia v. Moore, 553 U.S. 164, 168 (2008). 

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Opinion of the Court

the former invokes a reference to deity, whereas the latter does not.12

At common law, great emphasis was placed upon the religious 

nature of an oath, presumably because of the “understanding that an 

oath’s efficacy rested on its capacity to link the conscience of man to 

God.”13 Indeed, Lord Edward Coke, whose writings are considered 

by many to be the foundational source of British common law,14

“forcefully supported the then-dominant view in English law that a 

‘heathen’ was not to be believed and thus only Christian oaths sworn 

on the Gospels (to avoid idolatry) should be accepted in English 

courts.”15

¶16 Based on this line of reasoning, initially “only Christians 

could serve as jurors or be sworn as witnesses under early English 

common law.”16 This restriction was lifted in 1688, when Parliament 

passed the first of several reforms allowing a “declaration of fidelity” 

or “affirmation” to replace the traditional Christian oath.17 These 

reforms were tailored to benefit the Quakers, who had religious 

objections to taking an oath but were generally regarded as truthful 

people.18 Under these new reforms, the affiant was required, instead 

of swearing, to “solemnly, sincerely and truly declare and affirm” 

that his testimony was true.19 The focus of the affirmation was to be 

12 BLACK’S LAW DICTIONARY 68 (9th ed. 2009) (defining 

“affirmation” as “[a] solemn pledge equivalent to an oath but 

without reference to a supreme being or to swearing; a solemn 

declaration made under penalty of perjury, but without an oath”). 

13 Eugene R. Milhizer, So Help Me Allah: An Historical and 

Prudential Analysis of Oaths as Applied to the Current Controversy of 

the Bible and Quran in Oath Practices in America, 70 OHIO ST. L.J. 1, 

20 (2009).

14 See, e.g., John Marshall Gest, The Writings of Sir Edward Coke, 

18 YALE L.J. 504, 506 (1909) (“Coke as a law writer was as far 

superior in importance and merit to his predecessors, at least if we 

except Bracton, as the Elizabethan writers in general were 

superior to those whom they succeeded, and, as the great 

Elizabethans fixed the standard of our English tongue, so Coke 

established the common law on its firm foundation.”).

15 Milhizer, supra note 13, at 22.

16 Id. at 23.

17 Id. at 38 (internal quotation marks omitted).

18 Id.

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Opinion of the Court

“a public proclamation that is formally made in a way designed to 

awaken the conscience of the person affirming.”20

¶17 By the time of the Declaration of Independence, the 

American colonies also recognized either an oath or an affirmation as 

a valid procedure for certifying witnesses, with some colonies 

extending the privilege to other groups besides the Quakers.21 By the 

time of the Founding, “affirmation had become so widely accepted 

that it was expressly incorporated into the United States Constitution 

at each place where an oath is required.”22 Such an example is found 

in Article II of the Constitution, which prescribes the form of the 

“Oath or affirmation” that the President is required to make before 

taking office: “I do solemnly swear (or affirm) that I will faithfully 

execute the Office of the President of the United States, and will to 

the best of my Ability, preserve, protect, and defend the Constitution 

of the United States.”23

¶18 Consonant with the English common-law understanding of 

an affirmation as “a public proclamation that is formally made in a 

way designed to awaken the conscience of the person affirming,”24

the Framers did not understand an affirmation as requiring a 

particular form or wording. For example, the Delaware Constitution 

at the time of the Founding required incoming office holders to take 

an “oath, or affirmation,” that they “will bear true allegiance.”25 The 

New Jersey Constitution at the same time required that incoming 

legislatures “take the following oath or affirmation, viz: ‘I, A.B., do 

solemnly declare.’”26 Although it was most common for oaths and 

affirmations to include the word “swear” or “affirm,”27 as these 

19 Id. at 38 n.158 (quoting Quakers Act, 1721, 8 Geo., c. 6.).

20 Id. at 37.

21 Id. at 39.

22 Id.

23 U.S. CONST. art. II, § 1, cl. 7 (internal quotation marks 

omitted). 

24 Milhizer, supra note 13, at 37.

25 See DEL. CONST. art. XXII (1776).

26 N.J. CONST. art. XXIII (1776). 

27 See, e.g., GA. CONST. art. I, § 15 (1789) (providing that 

incoming legislators “solemnly swear (or affirm, as the case may 

be)”); PENN. CONST. art. II, § 10 (1776) (requiring incoming 

8

 

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Opinion of the Court

examples show, these terms were used synonymously with terms 

like “declare,” particularly where they were combined with other 

language making clear that the declaration was being made subject 

to criminal penalties.

¶19 Given this historical background, it seems clear that at the 

time of the adoption of the Fourth Amendment’s “Oath or 

affirmation” requirement, the main requirements for a valid 

affirmation were that the affiant (1) knowingly and intentionally 

make a statement to a neutral and detached magistrate; (2) affirm, 

swear, or declare that the information in the statement is true and 

correct; and (3) acknowledge that he was subject to criminal penalty 

if he made the statement despite knowing that it was false.28 In short, 

the affiant must “express[] the fact that he or she is impressed with 

the solemnity and importance of his or her words and of the promise 

to be truthful, in moral, religious, or legal terms.”29

¶20 In the case now before us, the officer applying for the 

eWarrant satisfied these requirements when he declared that his 

statement was “true and correct” and acknowledged that he was 

subject to “criminal penalty of the State of Utah” if it was not, and 

then knowingly and intentionally submitted the affidavit to a neutral 

and detached magistrate. We therefore reject Defendant’s argument 

that the eWarrant application should be interpreted only as an 

unsworn declaration, since the application’s language comports with 

legislators to take the “oath or affirmation of fidelity and 

allegiance . . . , viz: I do swear (or affirm) that”).

28 See United States v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 

2004) (“An ‘Oath or affirmation’ is a formal assertion of, or 

attestation to, the truth of what has been, or is to be, said.” 

(internal quotation marks omitted)); id. (“An oath or affirmation 

protects the target of the search from impermissible state action by 

creating liability for perjury or false swearing for those who abuse 

the warrant process.” (internal quotation marks omitted)); see also 

Johnson v. United States, 333 U.S. 10, 13–14 (1948) (“[The Fourth 

Amendment’s] protection consists in requiring that those 

inferences be drawn by a neutral and detached magistrate instead 

of being judged by the officer engaged in the often competitive 

enterprise of ferreting out crime.”). 

29 Bueno-Vargas, 383 F.3d at 1110; accord United States v. CollazoCastro, 660 F.3d 516, 523 (1st Cir. 2011); Mercatus Group, LLC v. 

Lake Forest Hosp., 641 F.3d 834, 845 (7th Cir. 2011). 

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Opinion of the Court

the original understanding of an “affirmation,” thereby satisfying the 

constitutional requirement that the application be supported by an 

“Oath or affirmation.” Accordingly, we affirm the district court’s 

denial of Defendant’s motion to suppress. 

III. IN ORDER TO CONSTITUTE A VALID AFFIRMATION, THE

ATTACHED “CRIMINAL PENALTY” MUST IMPRESS UPON 

THE AFFIANT THE SOLEMNITY OF THE OCCASION

¶21 Defendant’s final argument is that false statements made 

under an oath or affirmation must be punishable by perjury before 

they pass constitutional muster. And because the eWarrant 

application mirrors the language contained in section 78B-5-705’s 

Unsworn Declaration Statute, Defendant concludes that the penalty 

for knowingly making a false statement must be the statutemandated class B misdemeanor.30 Accordingly, Defendant urges us 

to conclude that the eWarrant application cannot qualify as a valid 

oath or affirmation and that the warrant was therefore 

unconstitutional. 

¶22 It appears to be historically accurate that those testifying 

under affirmation were generally subject to prosecution for perjury 

for making false statements.31 That said, a felony was not a mandated 

criminal penalty in these prosecutions. The penalty was sufficient if it

“impressed [upon the affiant] . . . the solemnity and importance of 

his or her words and of the promise to be truthful,”32 which is the 

ultimate question in assessing whether a criminal penalty is 

30 Compare UTAH CODE § 78B-5-705(2) (providing that “[a] 

person who knowingly makes a false written statement [under 

this statute] is guilty of a class B misdemeanor”), with id. § 76-8-

502 (“A person is guilty of a felony of the second degree” if he 

makes a “false material statement under oath or affirmation or 

swears or affirms the truth of a material statement previously 

made and he does not believe the statement to be true.”). 

31 Milhizer, supra note 13, at 37 (“Affirmation does retain all of 

the other key elements that provide significance to an oath: a 

public proclamation that is formally made in a way designed to 

awaken the conscience of the person affirming, under the penalty 

of perjury.”).

32 United States v. Bueno-Vargas, 383 F.3d 1104, 1110 (9th Cir. 

2004); accord United States v. Collazo-Castro, 660 F.3d 516, 523 (1st 

Cir. 2011); Mercatus Group, LLC v. Lake Forest Hosp., 641 F.3d 834, 

845 (7th Cir. 2011). 

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Opinion of the Court

constitutionally sufficient to support an affirmation. There is no 

doubt that the penalty of perjury is sufficient. Indeed, it is a wellestablished principle that an officer’s statement fulfills the 

affirmation requirement if the procedures followed are such “that 

perjury could be charged . . . if any material allegation contained 

therein is false.”33 Perjury, however, has undergone a significant 

transformation since the founding era.

¶23 Under perjury law, affiants have not always been subject to 

felony prosecution. In fact, perjury was originally more of a sin than 

a crime.34 It was not until the early 1600s that it was officially 

adopted as a punishable offense at common law.35 Even then, courts 

treated perjury as a misdemeanor, not a felony.36 Founding-era 

evidence also presents a mixed picture. While most of the early 

colonies incorporated the common law definition of perjury,37 they 

did not adopt a uniform penalty.38 By the early 1800s, however, the 

crime was a felony in most states.39

33 Bueno-Vargas, 383 F.3d at 1111. 

34 See, e.g., JAMES TYLER, OATHS: THEIR ORIGIN, NATURE AND 

HISTORY 196–97 (London, John W. Parker 1834) (“[T]he falseswearer and perjurer was left in former days entirely to the 

vengeance of the Deity, whose majesty he had insulted, and 

whose anger he had invoked.”). 

35 See The Perjury Statute of 1563, 5 Eliz. I, ch. 9.

36 Id.

37 Most states adopted the common law definitions of crimes, 

which included the definition of perjury. Richard H. Underwood, 

False Witness: A Lawyer’s History of the Law of Perjury, 10 ARIZ. J.

INT’L & COMP. L. 215, 245 (1993); see 1 Colonial Laws of New York, 

ch. 8, pp. 129–130 (“An Act to prevent wilful Perjury,” enacted 

Nov. 1, 1683). 

38 The early colonies did not classify penalties in terms of 

misdemeanors and felonies, and differed in their sanctions. Many 

colonies adopted the common-law approach. See Laws of the State 

of Delaware, ch. CC § 9 (1797) (providing that “party or parties 

[convicted of perjury] shall incur such forfeiture and receive and 

suffer such pains and punishments as are limited by the law and 

statutes of that part of Great Britain called England concerning 

perjury”); 5 Colonial Laws of New York, ch. 1472, pp. 168–69 

(1771) (establishing that parties convicted of perjury “shall suffer 

all the Pains and Penalties of Perjury, which by the Laws of Great 

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¶24 We therefore reject Defendant’s argument that every oath or 

affirmation must be subject to the penalty of a felony. Felony perjury

is not the baseline for a constitutionally valid oath or affirmation. 

¶25 Being subject to “criminal penalty”—i.e., either a class B 

misdemeanor or a second-degree felony—for making a false 

statement is, therefore, sufficient to “impress the solemnity and 

importance” of the occasion upon the affiant. Accordingly, we reject 

Defendant’s argument that an affirmation must necessarily be made 

under threat of a felony prosecution for perjury.

¶26 When the officer in this case submitted the eWarrant 

application, he had to check a box that stated “[b]y submitting this 

affidavit, I declare under criminal penalty of the State of Utah that 

the foregoing is true and correct.” The two “criminal penalties” 

potentially applicable for making a false statement are the Unsworn 

Declaration statute and the “false statement” statute. The former 

provides that “[a] person who knowingly makes a false written 

statement [under this statute] is guilty of a class B misdemeanor,”40

while the latter—Utah’s equivalent to perjury—imposes the penalty 

of a second-degree felony upon someone who makes a “false 

material statement under oath or affirmation or swears or affirms the 

truth of a material statement previously made and he does not

believe the statement to be true.”41 A class B misdemeanor is 

punishable by up to six months’ imprisonment,42 while a secondBritain can be inflicted.”). Other colonies created their own 

perjury standards. See Laws of the Province of New Hampshire, 

An Act for the Punishing of Criminal Offenders (1759) (providing 

that convicted perjurers “shall for his or their offence lose and 

forfeit twenty pounds . . . [and] also to have imprisonment by the 

space of six months”). There were even act-specific perjury 

penalties. For example, in Georgia, a debtor in debtors prison 

could petition for work release if he could establish that he was 

unable to support himself while in prison. If he committed perjury 

in the petition, however, he was required to “stand in the pillory 

for the space of two hours, and [would] never after have the 

benefit of [the] act.” Colonial Acts of Georgia, Act of March 6, 

1776.

39 Underwood, supra note 39, at 245.

40 UTAH CODE § 78B-5-705(2).

41 Id. § 76-8-502(1).

42 Id. § 76-3-204(2).

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degree felony is generally punishable by one to fifteen years’ 

imprisonment.43

¶27 In our view, there is no reason to assume—as Defendant’s 

argument does—that the threat of “up to six months” incarceration is 

inadequate to impress upon the affiant’s mind the solemnity of the 

occasion and that such can be achieved only by the threat of “one to 

fifteen years” incarceration.44 Instead, clearly either penalty would be 

more than sufficient to “impress the solemnity and importance” of 

the occasion upon the mind of the affiant, thereby ensuring that he is 

mindful “of his promise to be truthful” which, as explained above, is 

all that the Constitution requires for a valid affirmation. Thus, even if 

we accept Defendant’s argument that the only penalty available in 

this case is the class B misdemeanor, the warrant application was 

nevertheless supported by a valid affirmation, as required by the 

Fourth Amendment, and was therefore constitutional.45

43 Id. § 76-3-203(2).

44 This seems particularly true given the fact that these 

penalties are set (and could therefore be changed) by the 

legislature. That is, if Defendant’s view is adopted and a felony 

prosecution is deemed a necessary element of an affirmation, then 

if the legislature ever decided to change the penalty associated 

with the false statement statute to something less than a felony, it 

would be impossible to issue warrants since false statements 

made under oath and affirmation would no longer be punishable 

as felonies.

45 The case at hand is very similar to a case presented before 

the Court of Appeals of New York, People v. Sullivan, 437 N.E.2d 

1130 (N.Y. 1982), which illustrates that the threat of prosecution 

for a misdemeanor is sufficient support for an affirmation. 

Sullivan involved a warrant that was obtained based on an 

informant’s unsworn statement that included a warning that 

“[f]alse statements made herein are punishable as a Class A 

Misdemeanor pursuant to section 210.45 of the Penal Law.” Id. at 

1132 (internal quotation marks omitted). In upholding the 

warrant, the court stated that 

[t]here is no constitutional prescription as to the 

particular form of the “oath or affirmation” or the 

exact manner in which it is to be administered. In the 

usual case, there will be a formal swearing before a 

notary to the truth of the information provided, and 

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¶28 In sum, while applying for the eWarrant in this case, the 

officer declared that the information that he was submitting was 

“true and correct.” Further, in making that declaration he expressly 

made himself subject to potential criminal penalty. This was more 

than enough to impress upon him the solemnity of the occasion. The 

officer’s statement was therefore supported by a valid affirmation, 

and accordingly we affirm the district court’s dismissal of 

Defendant’s motion to suppress.

any written statements submitted in support of the 

warrant application generally will contain the 

traditional jurat. This does not mean, however, that 

such procedural formality is sine qua non of the “oath 

or affirmation” requirement. Indeed, a method of 

verification by which the maker of the statement is 

first alerted to the criminal consequences of 

knowingly providing false information in connection 

with a warrant application and then voluntarily 

acknowledges his acceptance of those consequences 

should suffice for purposes of the constitutional 

mandate that a warrant be issued upon proof 

“supported by oath or affirmation.” 

Id. at 1133.

The court went on to note that the statute referred to in the 

statement does provide for criminal prosecution for a false 

statement in a document which contains such a reference and the 

court thus concluded that 

this statutorily authorized form notice served as the 

procedural and functional equivalent of the more 

traditional type of oath or affirmation. . . . Indeed, 

the form notice may provide a greater practical 

assurance against intentional misstatements of fact 

than the more mechanical and ofttimes routine 

procedure of swearing before a notary. 

Id. at 1133–34; see also Ferguson v. Comm’r, 921 F.2d 588, 589–91 

(5th Cir. 1991) (person who refused to use the word “swear” or 

“affirm” could satisfy oath or affirmation requirement by adding 

acknowledgement that she was subject to penalties for perjury to 

statement that facts to be given are “accurate, correct, and 

complete” (internal quotation marks omitted)).

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Cite as: 2014 UT 11

Opinion of the Court

CONCLUSION

¶29 Based upon our analysis of the historical understanding of 

what constitutes a constitutionally valid “affirmation,” we conclude 

that the language used in Utah’s eWarrant system comports with 

that understanding and is therefore constitutionally sufficient to 

support the issuance of the warrants executed in this case. 

Accordingly, we affirm the district court’s denial of Defendant’s 

motion to suppress.

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