Cheek v. State ex rel. Dept. of Public Safety7/9/1991
e presence of the notary public. The officer's affidavit shows on its face that it was sworn to. The act of signing the attestation that the contents of the affidavit were "true and correct to the best of [the arresting officer's] knowledge and belief" in the presence of the notary public was sufficient for purposes of section 754.
We adopt the rule of a number of courts which hold that "merely signing a form of affidavit in the presence of a notary or an official authorized to administer an oath is sufficient." Blackburn v. Motor Vehicles Div., Dep't of Transp., 33 Or. App. 397, 576 P.2d 1267 (1978); see People v. McClain, 128 Ill.2d 500, 132 Ill.Dec. 441, 539 N.E.2d 1247 (1989); Dalbey Bros. Lumber Co. v. Crispin, 234 Iowa 151, 12 N.W.2d 277 (1943); State ex rel. Klingle v. Fisher, 174 Minn. 82, 218 N.W. 542 (1928), cert. denied, 278 U.S. 636, 49 S.Ct. 32, 73 L.Ed. 552 (1928); Wall v. Democratic Repres. Dist. Comm. for Dist. 15, 317 So.2d 308 (La. App. 1975); Dawson v. Austin, 44 Mich. App. 390, 205 N.W.2d 299 (1973); State v. Allen, 200 Miss. 494, 27 So.2d 695 (1946); Atwood v. State, 146 Miss. 662, 111 So. 865 (1927); Agnew v. Hjelle, 216 N.W.2d 291 (N.D. 1974); Cincinnati Fin. Co. v. First Discount Corp., 59 Ohio App. 131, 17 N.E.2d 383 (1938); Cole v. State, 92 Okla. Cr. 316, 223 P.2d 155 (1950); State v. Lewis, 85 Wash.2d 769, 539 P.2d 677 (1975); McLeod v. State, 16 Wash. App. 400, 556 P.2d 563 (1976). Contra, Dawson v. Secretary of State, 44 Mich. App. 390, 205 N.W.2d 299 (1973); cf. Wells v. Jones, 125 Mich. App. 137, 336 N.W.2d 17 (1983).
In Loudermilk, the Oklahoma Court of Criminal Appeals succinctly stated the rule as it applies to search warrants:
No particular ceremony is necessary to constitute the act of swearing to an affidavit for search warrant. It is only necessary that something be done in presence of the magistrate issuing the search warrant which is understood by both the magistrate and the affiant to constitute the act of swearing.
Loudermilk, 177 P.2d at 130.
Petitioner contends that the decision of the Court of Appeals is in conflict with this Court's decision in Chase v. State, 795 P.2d 1048 (Okla. 1990). In Chase, the name of the affiant was different from the person who signed the document. We held that the order was fatally flawed. There is no allegation in the present case that the arresting officer was not the affiant who signed the document. The decision in Chase is not applicable to the present case in that Chase presented an entirely different factual situation.
In the present case, the arresting officer signed a statement verifying the truth of the affidavit. He did so in the presence of the attesting notary public. These acts are sufficient for purposes of section 754 to constitute a sworn statement.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; DISTRICT COURT'S JUDGMENT AFFIRMED.
OPALA, C.J., and LAVENDER, SIMMS, HARGRAVE, ALMA WILSON, KAUGER and SUMMERS, JJ., concur.
DOOLIN, J., disqualified.
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