On "No Refusal Weekends," many volunteer
prosecutors judges will sit at home by a fax machine waiting for the "fill-in-the-blank" warrant applications to be faxed over, signed and faxed back without a care in the world. Interestingly enough, while a municipal court will not accept an appearance bond or appeal bond if it is faxed (because they have to be notarized), a judge may gladly accept a faxed affidavit in support of a search warrant -- if the purpose is to tie someone down and draw their blood.
In order to avoid the testy situation of lying before a notary or a judge in quest of a search warrant, police officers have taken to signing their affidavits within the presence of another police officer. Since no oath was administered, the officer requesting the search warrant did not commit perjury and the courts don't care.
That was, until the Tyler Court of Appeals handed down its opinion in Aylor v. State, No. 12-09-00460-CR (Tex.App.--Tyler, 2011). In Aylor, a police officer stopped a motorist and, believing he was driving while intoxicated, requested a blood sample. When Mr. Aylor declined the request, the officer called the station and told his sergeant what had happened. The sergeant then filled out an affidavit based on the arresting officer's statements and faxed it to a judge who administered an oath over the phone. That's right -- over the phone. Nevermind the fact that the judge could not ascertain with any certainty who was on the other end of the line. Forget that the judge had no way to know from the caller's appearance whether he was telling the truth of not. In other words, throw all logic out the window.
The trial court was not troubled by this. The appellate court, on the other hand, was a bit troubled by it.
What's troubling about the Court's opinion, however, is the statement that the State never argued that the officers were acting "in good faith" when executing the search warrant. Was the Court saying that all would have been forgiven if the officer had testified that he was acting on the belief that the warrant was valid?
If that is the case, Aylor doesn't provide relief so much as a playbook for the police on how to obtain illegal search warrants and execute them by using the magic words good faith.