Commonwealth v. Wilson

¶1concurring.

¶2I concur with the result reached by the majority on this appeal but I disagree with its determination that CR 5.05(2) applies to an affidavit for a search warrant.

¶3As I understand the majority, CR 5.05(2) is applicable here because RCr 1.08(2) states that where the criminal rules do not specify the manner of filing or service of papers, the civil rules shall apply. It is true that there is no indication in the criminal rules of the manner for filing or service of an affidavit supporting a search warrant. But the majority presupposes that such an affidavit is required to be filed or served. I contend there is no such procedural or substantive requirement under Kentucky law.

¶4An affidavit for a search warrant certainly is not a “pleading” under CR 5.05(2) because RCr 8.12 dictates that the only “pleadings” in a criminal case are the indictment or information and the plea. That leaves the determination of whether the affidavit is an “other paper” which under CR 5.05(2) is required to be served upon a party. CR 5.05(1) states only papers required to be served upon a party are required to be filed with the court or clerk.

¶5I am unable to find any Kentucky law requiring the affidavit to be served. Although not directly on point, there are cases which hold that the absence of the affidavit in the record on appeal is grounds for the appellate court to presume the affidavit was sufficient to support the warrant. Greer v. Commonwealth, Ky., 455 S.W.2d 555 (1970); Miller v. Commonwealth, Ky., 432 S.W.2d 638 (1968); and, Jarrett v. Commonwealth, Ky., 434 S.W.2d 808 (1968). It is interesting to note that in Miller, supra,the defendant had made a motion to file the affidavit, which motion was denied by the trial court.

¶6I believe it can be inferred by the above line of cases that the affidavit upon which a search warrant is issued does not have to be “served” and therefore need not be “filed” under CR 5.05(2).1