Playing telephone tag

When cities and counties across Texas began implementing "No Refusal Weekends," obtaining search warrants to strap down motorists and jab needles in their arms became all the rage. Prosecutors managed to recruit judges to volunteer to sit at the police station and blindly sign carefully parse and review search warrant applications.

But for some that was too much work.

Then, to make it easier to convince judges to violate their oaths to abide by the Constitution (particularly the Fourth Amendment), prosecutors came up with the idea of setting up fax machines in judges' homes so they wouldn't have to muddy their feet with the common folk.

In addition to the fill-in-the-blank and form affidavits everyone kept handy, judges decided that they would be okay with talking to the officer over the phone and having him fax over the affidavit before quickly signing a warrant in a stack on the desk and going back to bed. The only problem was that Article 18.01 of the Texas Code of Criminal Procedure stated that the person applying for the search warrant needed to swear to the facts in the affidavit before the judge who was signing reviewing the warrant.

Six years ago the Texas Court of Criminal Appeals, in Smith v. State, 207 SW3d 787 (Tex.Crim.App. 2006), decided that an affidavit for search warrant purposes was still an affidavit even it it wasn't signed. The thought being that the affiant had taken an oath before the judge and so if he forgot a little detail, such as signing the affidavit, we wouldn't hold it against him. The Court then added

Although the affiant's signature on an affidavit serves as an important memorialization of the officer's act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer's oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid.

Oh, the Court knew there would be further questions down the line about what constituted an affidavit for search warrant purposes. The judges in Austin knew there would have to be some bend in order to prevent the entire process from breaking down. But, keeping true to their beliefs in judicial restraint (when it serves their purposes), the Court said it would be up to the Legislature to determine just how to adapt the requirements to our new digital age.

And that's what makes the Court's decision in Clay v. State, No. PD-0579-12 (Tex.Crim.App. 2013) that much more ironic.

Back in 2008 Sara Clay was stopped for speeding. The officer, having smelled alcohol on Ms. Clay's breath, immediately turned the traffic stop into a DWI investigation. After placing Ms. Clay under arrest, Officer Ortega asked her to blow into the state's breath test machine. When she refused, Officer Ortega filled out a search warrant affidavit and called Hill County Court at Law Judge A. Lee Davis. After their conversation about the stop, Officer Ortega faxed the affidavit to the judge who signed it and sent it back. The end result was a needle being jabbed into Ms. Clay's arm.

Remembering the Court's admonition that they needed to be flexible but that it was ultimately up to the legislature to determine what actually constituted an affidavit, Ms. Clay argued that the warrant in her case was invalid because Officer Ortega wasn't properly sworn when making his affidavit. The state, of course, argued that we must be flexible.

Of course the Court of Criminal Appeals decided that its desire for flexibility was more important than their supposed love of judicial restraint. After all, if the Court were to leave it to the legislature to make the law they'd have to let a drunk driver off the hook - and we certainly can't have that, can we?

Of note is the odd comment the Court made when defending its decision to allow an affiant to "present" his affidavit by phone -

In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility."

Yep, no one ever lies to someone they're familiar with, do they?

Interestingly enough, one of the factors the Court cites in its decision to allow one to be sworn over the telephone is the fact that los federales can do it. It's more than mildly ironic that in a state where our elected officials decry every regulation that comes down from Washington that our highest court would readily embrace how the feds do things when it suits their purposes.

The Bill of Rights is supposed to be the minimum guarantee of our rights. There is nothing to prevent the states from affording their citizens greater protections than the Constitution. But why let that get in the way of strapping down motorists and jabbing needles in their arms?