Friday, January 14, 2011

Warrant must support probable cause within its "four corners"

On January 11, 2008, Sam Farhat was driving 10 miles below the speed limit in Denton County, Texas. An officer from the Highland Village P.D. saw Mr. Farhat and followed him for about a half mile until Mr. Farhat signaled and turned into a fast food restaurant. The officer stopped Mr. Farhat in the parking lot of the restaurant and told Mr. Farhat he saw him swerving on the road.

After Mr. Farhat exercised his rights not to perform roadside calisthenics or blow into the state's breath test machine, the officer swore out an affidavit and applied for a warrant to draw blood. In his affidavit, the officer stated:
On 01-11-2008 at approximately 0050 hours, I, Cpl. Finley #516 was driving eastbound in the 1900 block of Justin road and visually observed a vehicle turning from Sellmeyer onto Justin road.  I turned around at the light and started westbound when I could see a vehicle driving very slow approximately 30 miles an hour in a 40 mile per hour zone.  I pulled my patrol vehicle behind the vehicle a silver BMW with dealer plates.  The vehicle was weaving from sided [sic] to side and continued for about a half a mile in the left lane.  As the vehicle approached the KFC parking lot the vehicle turned on the right turn signal and crossed over the left lane into the parking lot.  I activated my overhead lights and conducted a traffic stop in the parking lot at 2180 Justin road KFC.  I noticed two pill bottles in the center console and asked where the driver later identified as Farhat, Samuel David, A/M DOB 05-04-1966 the defendant [sic].  I asked the defendant to step out of the vehicle to check to see if he was ok to drive.  The defendant refused to do any road side test and was placed in double locked properly spaced handcuffs.
Mr. Farhat filed a motion to suppress the blood test result and, after his motion was denied, pleaded no contest. Mr. Farhat entered his plea reserving his right to appeal the conviction.

Pursuant to request, the court made the following findings:

At about 12:50AM on January 11, 2009, Corporal Patrick Finley of the City of Highland Village Police Department was [traveling] westbound in the 1900 block of Justin Road in Denton County, Texas when he observed a vehicle traveling at 30 MPH in a 40 MPH zone. He further observed that the vehicle weaving from side to side and travelled in the left lane of traffic (a reasonable interpretation being that he was driving in the wrong lane, to wit: the oncoming lane) for approximately one-half a mile.  The Officer stopped the vehicle, identified as a BMW with dealer plates, in a parking lot at 2180 Justin Road.  Upon contacting the driver, the Officer observed two pill bottles in the console, and asked the driver, identified as Samuel David Farhat to step out of the vehicle.  The driver refused to participate in roadside tests to determine intoxication.  The Officer, suspecting the driver may be intoxicated, based on the erratic driving behavior, the pills in the console, and the Officer’s opportunity to personally observe the driver, subsequently placed the driver under arrest.  Corporal Finley further sought and obtained a search warrant for the driver’s blood from a qualified magistrate.
Viewing the issuing magistrate’s determination in a reasonable, commonsense, and realistic manner, the four corners of the affidavit provided sufficient probable cause to issue a warrant for seizure of the defendant’s blood.

The Fort Worth (Texas) Court of Appeals then reversed the trial court's decision, in Farhat v. Texas, No. 02-10-00030-CR (Tex.App.--Fort Worth 2011) on the grounds that the warrant was invalid because it did not provide the magistrate with "a substantial basis for concluding that probable cause existed." The court noted that nowhere within the "four corners" of the warrant (the affidavit is considered part of the warrant) was information provided that would provide the magistrate "with a substantial basis to conclude that there was a fair probability or substantial chance that Farhat had committed the offense of DWI or that evidence of intoxication would be found in Farhat's blood."

The problem for the officer was that he failed to note the personal observations he made during the encounter that gave him reason to believe that Mr. Farhat was intoxicated. When reviewing a warrant, all of the information giving rise to probable cause must be stated within the warrant itself. While the officer could testify at trial about his personal observations of Mr. Farhat, that testimony cannot be used to support a warrant. In other words, the sufficiency of a warrant is based entirely on the information included within its "four corners."

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