                 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


   1State 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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                       STATE v. GUTIERREZ-PEREZ
                         Opinion of the Court
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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                        STATE v. GUTIERREZ-PEREZ
                           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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                        STATE v. GUTIERREZ-PEREZ
                           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.
   23U.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
                                                      (continued)
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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. 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).

                                  9
                     STATE v. GUTIERREZ-PEREZ
                       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 statute-
mandated 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 well-
established 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.
   34See, e.g., JAMES TYLER, OATHS: THEIR ORIGIN, NATURE AND
HISTORY 196–97 (London, John W. Parker 1834) (“[T]he false-
swearer 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
                                                        (continued)
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                        STATE v. GUTIERREZ-PEREZ
                             Opinion of the Court
    ¶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 second-

Britain 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
                                                          (continued)
                                   13
                    STATE v. GUTIERREZ-PEREZ
                       Opinion of the Court
    ¶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)).

                                 14
                       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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