Thursday, December 31, 2009

An offer you just can't refuse

"The purpose of the complaint, then, is to enable the appropriate magistrate... to determine whether the 'probable cause' required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." -- Girodenello v. U.S., 357 US 480, 486 (1958)

"An affidavit for a search warrant is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed." -- Serrano v. State, 123 SW3d 59-63 (Tex.App. -- Austin 2003, no. pet.)

A magistrate is to view an affidavit in support of a search warrant in a neutral and detached manner in order to ensure that a person's rights under the United States Constitution, the Texas Constitution and the Texas Code of Criminal Procedure are protected.


New Years Eve No Refusal Info: 2 nurses, 2 prosecutors, 1 judge and 100s of officers working DWI enforcement. DWI blood warrants in effect.
One judge to review all of the affidavits in support of a warrant for the forcible blood draw of a Texas motorist? Does that sound like a neutral and detached magistrate? Who are we kidding? Everyone knows the game this weekend -- the cops will arrest motorists they suspect are driving while intoxicated and should that motorist exercise his 5th Amendment right not to incriminate himself by submitting to a breath or blood test, the officers will fill out a cookie-cutter affidavit that the judge will sign because that's what he's there to do.

Meanwhile, if you're out and about this holiday weekend -- be careful out there.

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