IN THE SUPERIOR COURT
OF THE STATE OF RIDGEWAY
THE STATE OF RIDGEWAY,
Plaintiff,
v.
DERHTRAM, AZLAEWENT_OFIICIAL,
Defendants.
and
THE STATE OF RIDGEWAY,
Plaintiff,
v.
RBWF,
Defendant.
Case No. RSC-CM-3140
Judge notsfeelings
Magistrate bommes Presiding
Case No. RSC-CM-3326
Judge notsfeelings Presiding
OPINION IN THE ABOVE-TITLED MATTERS ON
MOTIONS TO STRIKE AFFIDAVITS OF PROBABLE CAUSE
Before the court are two motions to strike probable cause affidavits. The motions, being
similar in their merits, and the situations being identical, are consolidated and this opinion serves
to respond to both motions. This opinion supplements orders made previously denying the
motions; made on August 3rd in Derhtram and on August 5th in rbwf.
BACKGROUND
Defendants Derhtram and Azlaewent_ofiicial in No. 3140 and Defendant rbwf in No.
3326 are criminal defendants before the Superior Court on charges brought by information by the
State of Ridgeway. In both cases, counsel for the defendants submitted a motion to strike the
affidavit of probable cause presented to substantiate the charges. In both cases, the court found
probable cause for the charges in the information based on the affidavit provided.
Defendants in Derhtram outline their argument in the fact that the Georgia Court of
Appeals held that an affidavit of probable cause must contain and satisfy three key elements: “(a)
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a written oath embodying the facts as sworn to by the affiant; (b) the signature of the affiant; and
(c) the attestation by an officer authorized to administer the oath that the affidavit was actually
sworn by the affiant before the officer” Dodson v. Dean, 567 S.E.2d 348 (Ga. Ct. App. 2002).
Defendant in rbwf outlines his argument in the fact that a defendant “cannot be tried on an
information unless it is supported by the oath of someone having knowledge of the facts showing
the existence of probable cause.” U.S. v. Morgan, 222 U.S. 274, 282 (1911).
Both motions agree on the facts which give rise to them: the affidavit of probable cause
was not countersigned by an officer authorized to give oaths in those circumstances.
Additionally, both motions agree that the only feasible remedy to address this alleged deficiency
is to strike the affidavit, and dismiss the matter with prejudice.
DISCUSSION
A. The Georgia Standard is Unpersuasive in Ridgeway.
Defendants in Derhtram bring arguments under the law of the State of Georgia.
Importantly, the State of Georgia’s laws do not hold legal effect in Ridgeway, nor are their court
rulings binding—especially when interpreting those non-effective laws specifically. The
provisions in Georgia which govern affidavits of probable cause are found in the Code of
Georgia, a codified collection of the laws and regulations of Georgia. More importantly:
Defendants make no effort to link the ruling of the Ga. App. Ct. to the laws or regulations of the
State of Ridegway. The court took matters into its own hands—looking for provisions which
hold the same effect—with poor results. With no direct match, every basis for striking the
affidavit submitted in Derhtram can be effectively disregarded.
B. Rid. R. Crim. P. 3(f) Does Not Mandate a Countersignature on Affidavits.
In interpreting the rules, words within the rules, but especially within the same rule,
usually occupy the same meaning. See Powerex v. Reliant Energy Services, 551 U.S. 224 (2007);
see also Bowling v. U.S. Bank, 963 F.3d 1030 (11th Cir. 2020). I find this to be the case here, as
there is no necessity to deviate to accommodate any specific circumstances or the platform in
which this court exists. Indeed, “a criminal proceeding shall be commenced in the Superior Court
by a criminal information or by an indictment.” (Emphasis added.) Rid. R. Crim. P. 3(a). The
rule applied to establishing probable cause is subsection (f) of Rule 3 (Appendix A). This is
further confirmed by the text of the rule, stating that “[t]he complainant shall convey to the court
the facts constituting the basis for the information.” (Emphasis added.) Rid. R. Crim. P. 3(f).
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The singular noun ‘the information,’ separate from ‘the facts’ mentioned in the same sentence,
leads the court to believe that the information referred to is the criminal information defined in
subsection (a) of Rule 3. If ‘information’—in the context of subsection (f)—was to mean all of
the facts conveyed to the court, it would not be separated. In applying this text, the court moves
forward with the understanding that “information” refers to a criminal information document
filed with the court to instate charges against the defendant.
Although this is the case, the information is commonly filed jointly with or is later joined
by an affidavit for the limited purposes of establishing probable cause. This is necessary as a
criminal information is not typically permitted to have surplusages included within the body of
the document. Whether or not the documents are filed in one file, or in two files with different
links, but both delivered to the same court, is irrelevant. As such, it would be improper for this
court to consider these documents severed from one another. Indeed, “the [document which
begins the proceedings] and the affidavits which accompanied it are to be taken together as part
of the same instrument.” Yulee v. Vose, 99 U.S. 539, 545 (1878); see also West Ridge Group v.
First Trust of Onaga, 431 F. App’x 656 (10th Cir. 2011). The court will consider, for the
purposes of this analysis, the documents as one instrument and analyze them based on that
standard.
While it is clear from the interpretations made here that the affidavit used to substantiate
probable cause is not a document that specifically requires countersignature, that does not reduce
or eliminate the requirement for the affidavit to be subscribed under oath. Notably, an oath must
be administered by someone authorized to do so. The administration of oaths, for the purposes of
attaching the required elements of perjury, must be “authorized by [law].” United States v.
Debrow, 346 U.S. 374, 377 (1953); see also United States v. Edwards, 443 F.2d 1286 (8th Cir.
1971). All persons admitted to the practice of law, as a paralegal or as an attorney, are authorized
to “[administer] oaths or affirmations.” 1 R. Stat. § 1508. Defendants’ arguments then turn to the
fact that no signature is noted on the document to confirm that the oath was given, as prescribed
by law.
However, there are multiple ways for an oath to be administered, and thereby become
binding on a person. The first, and most prominent, is that an oath can be administered orally.
This is well documented, and is the normal method for witnesses, officers of the court,
government officials taking office, and all other uses. However, “[n]o particular formalities are
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required for there to be a valid oath.” United States v. Yoshida, 727 F.2d 822, 823 (9th Cir. 1983).
Indeed, it has been long settled that oaths done in other forms are also binding.
“It is sufficient that, in the presence of a person authorized to administer an oath, as was
the notary herein, the affiant by an unequivocal act consciously takes on himself the
obligation of an oath, and the person undertaking the oath understood that what was done
is proper for the administration of the oath and all that is necessary to complete the act of
swearing.” Id. at 823.
The elements of an oath administered under the Yoshida standard include that (1) the oath was
‘taken’ in the presence of a person authorized to administer it, (2) the affiant takes an
unequivocal act, (3) the affiant acts consciously, and (4) the person taking the oath understood
that his actions were to be done for the purposes of fulfilling the oath. These elements are in
addition to the other competency and understanding standards not at issue here. The court will
apply this standard to determine whether an oath was sufficiently administered.
The first element is whether the oath was taken in the presence of a person authorized to
administer it. Presence is a complicated concept within our fixed-bounds virtual platform. This
court cannot see this issue so narrow as to require presence to mean both persons being in-game
and meeting at a common place. It is enough, to establish ‘presence’ under the Yoshida standard,
that two people meet over a text-based communications server like Discord, at roughly the same
time, and make their activity known to the other person by sending messages or otherwise, and
regardless of whether or not that activity is strictly continuous. Court cases, in their entirety, have
been held on a non-continuous basis and the defendant and counselors have been widely
recognized as ‘present’ for the purposes of the proceedings thereof. The same concept applies to
presence in the pre-filing portion of time. The court finds that the first element is satisfied with
respect to both affidavits.
The second and third elements go hand-in-hand, and the court ought to assess them
together. The affiant clearly took an unequivocal act, by signing the affidavit. Through their
training, and by reading the disclaimer immediately above where is he to affix his signature, it
can be reasonably determined that this action of signing the affidavit was a conscious one.
Training once again goes to the fourth element. Each of the affidavits in contention here
concludes with a signature block, stating that the ‘[a]ffiant declares under penalty of perjury that
everything stated in this document is true and correct.’ This is then undersigned by a criminal
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investigator—the affiant—who wrote the text of the affidavit. A criminal investigator has the
necessary experience and professional training to know that signing an affidavit with a
clearly-listed warning of perjury fulfills an oath of honesty. The second, third, and fourth
elements are satisfied with respect to both affidavits.
C. Probable Cause Being Found Shifts the Burden.
The motions to strike the probable cause affidavits seem more suitably posed as motions
to reconsider the finding of probable cause. Fundamentally, there is nothing to strike when it is
suggested that probable cause affidavits are insufficient. They are not admitted as evidence.
Perhaps a motion to quash could be entertained, but a motion to quash would challenge a specific
charge. The determination of probable cause is a prerequisite to summoning or otherwise holding
a defendant for trial, and is an opinion and order in and of itself. Indeed, “the appropriate judicial
officer shall not authorize a criminal information unless the information presented by the
complainant establishes probable cause to believe that the person against whom the information
is sought committed an offense.” Rid. R. Crim. P. 3(f)(2). By requiring a judicial officer to
authorize the criminal information, based on the the instruments considered as a whole
(including any affidavits), the rules specifically empower the court to make a ruling on the
existence of probable cause. Accordingly, it is subject to reconsideration, and that is the proper
route to challenge it.
In determining malicious prosecution lawsuits, it is commonly held that there is a burden
by the criminal defendant—the civil plaintiff—to establish that probable cause does not exist for
the charge which he is held. These procedures relate to civil lawsuits, but are indeed persuasive
upon these criminal proceedings. "[B]ecause a neutral magistrate's determination that there is
probable cause 'affords prima facie evidence of probable cause,' the accused bore the burden of
proving the lack of probable cause." Washington v. Durand, 25 F.4th 891, 906 (11th Cir. 2022). A
defendant seeking the successful challenge of probable cause needs to challenge the
determination of the probable cause itself, not the affidavits which brought the judge to that
decision.
CONCLUSION
The court is satisfied that the affidavits are sufficiently sworn, and cannot then be struck
on account of not being countersigned by an officer of the court. Additionally, the court is
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satisfied that, in both cases, probable cause did exist and continues to exist, providing a basis for
the proceedings to continue.
Done: August 11, 2024 SO ORDERED:
At Palmer, Ridgeway
_______________________________
Hon. notsfeelings
Superior Court Judge
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Appendix A
Rule 3 (Criminal Procedure)
“Rule 3. Criminal Information and Indictment; Probable Cause Hearing
(a) Commencement of Criminal Proceeding. A criminal proceeding shall be commenced
in the Superior Court by a criminal information or by an indictment.
(b) Right to Indictment. A defendant charged with an offense punishable by imprisonment
in state prison shall have the right to be proceeded against by indictment as established by
the relevant state statutes and the State Constitution.
(c) Waiver of Indictment.
(1) Right to Waive Indictment. A defendant charged in a Superior Court with an
offense as to which the defendant has the right to be proceeded against by
indictment shall have the right to waive indictment, unless the State proceeds by
indictment pursuant to subdivision (e) of this rule.
(2) Procedure for Waiving Indictment. The defendant may waive the right to be
proceeded against by indictment by filing a written waiver of that right in the
Superior Court. The Superior Court may for cause shown grant relief from that
waiver. The defendant may waive the right to be proceeded against by indictment
by filing a written waiver of that right, with the consent of the prosecutor, in the
Superior Court.
(d) Transmission of Papers. If the defendant is bound over to the Superior Court for trial
after a finding of probable cause or after the defendant waives a probable cause hearing,
the clerk of the Superior Court shall enter into record a copy of the information and of the
record; the original recognizances; a list of the witnesses; a statement of the expenses and
the appearance of the attorney for the defendant, if any is entered; the waiver of the right
to be proceeded against by indictment, if any is executed; and the pretrial conference
report, if any has been filed.
(e) Indictment after Waiver. Notwithstanding the defendant's waiver of the right to be
proceeded against by indictment, the prosecuting attorney may proceed by indictment.
(f) The Information Process.
(1) Procedure for Obtaining a Criminal Information. Any person having
knowledge, whether first hand or not, of the facts constituting the offense for
which the information is sought may be a complainant. The complainant shall
convey to the court the facts constituting the basis for the information. The
complainant's account shall be either reduced to writing or recorded. The
complainant shall sign the information under oath, before an appropriate judicial
officer.
(2) Probable Cause Requirement. The appropriate judicial officer shall not
authorize a criminal information unless the information presented by the
complainant establishes probable cause to believe that the person against whom
the information is sought committed an offense.”
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