Wednesday, May 11, 2011

Hanging on the telephone

It is far from unusual in these days of Gestapo-like tactics by the police against motorists accused of driving while intoxicated for an officer to fax an application for a warrant to draw blood without ever appearing before the judge.

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.
The current state of Texas law then, as alluded to in the above quoted dicta by the court of criminal appeals in Smith, is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths. See Lowry, 297 S.W.2d at 850-51 (citing Sullivan, 83 S.W. at 422-23); Hughes, No. 07-10-00096-CR, 2011 WL 561497, at *6-7.  Therefore, we conclude that an affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant.  We further conclude that where the oath was taken solely over the telephone and not physically in front of any officer authorized to administer oaths, the presence requirement is not met.  In the instant case, the oath was administered by the magistrate to Sergeant Seyer by telephone.  The record does not show that Sergeant Seyer took the oath in front of some other officer authorized to administer oaths, and the affidavit is not notarized.  Moreover, the State did not argue at the trial court, and does not argue here, that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant.  See Swenson v. State, 2010 WL 924124, at *2-4.  Consequently, we cannot conclude from the record before us that the presence requirement was satisfied or that compliance with the presence requirement was excused.  Accordingly, we hold that the trial court erred in concluding that the warrant was valid and in overruling Appellant’s motion to suppress.
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.

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