Sara Katherine Clay v. State

CLAY, Appellant, Sara Katherine Texas, Appellee. STATE

No. 10-09-00355-CR. Wood, TX, Jerry Worth, L. Ft. for Ap- pellant. Texas, of Appeals of Court Pratt, County

Waco. Mark for Hill Attorney Hillsboro, TX, County, for Appellee. March 2012. GRAY, Before Chief Justice Justice Discretionary Review Granted DAVIS, and Justice SCOGGINS. June

OPINION GRAY, TOM Chief Justice. This presents case an extraordinarily first impression issue of to this yet and an Court issue decided Appeals. issue whether an affidavit filed in search warrant must be an oath ad by a person ministered to take authorized oath in а face-to-face meeting particular affiant. The context the issue is case this whether an oath aby judge administered proper affiant is ly used to obtain when affiant, making signs after the affidavit and faxes it to the who then, based on the facts sworn to in the affidavit, issues warrant to seize blood suspected driving from driver who is while intoxicated. The other court in squarely the state to address issue did unpublished opinion so deter being mined an oath administered withоut sup face-to face with the affiant will port the affidavit and therefore seizure evidence under the warrant thus obtained suppressed, must be absent excep some requirement. Ay tion to the warrant 12-09-00460-CR, lor v. Tex.App. 3274 (Tex.App.-Tyler LEXIS ref'd). April disagree 466 observations, he Ortega believed ‍​‌‌​​‌​​​‌‌‌‌‌​‌​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​‍other Aylor and hold that in holding

with the arrest, ar- cause to and did had administered an affidavit oath for rest, Clay driving while intoxication. for support and a will Ortega take a test. Clay refused to breath seizure of and related filled an Affidavit for Search War- then out evidence.1 Clay. a specimen rant to take blood from Clay charged was with Sara Katherine Ortega County called Hill at Law driving intoxicated. while the offense Judge spoke A. Lee Harris him and to 49.04(b) (West § Ann. Tex. Code Penal Ortega Judge each telephone. and Harris the trial court denied After Supp. During the recognized the other’s voice. pled suppress, Clay guilty to her motion conversation, phone Ortega swore to her three sentenced trial court Search signed Affidavit for Warrant. $1,500. Clay fine a days jail in in physi- sign He did court Because the trial did appeals. Ortega Harris. presence Judge cal Clay’s suppress, motion denying err in Judge affidavit to Harris signed faxed affirmed. judgment the trial court’s and also then also the affidavit who issues, Clay In asserts that the trial two a Warrant for Blood and signed Search sup- denying in her mоtion to court erred for in Assistance Execution Order who submitted press the officer Harris faxed the Judge Search Warrant. support of the search war- the affidavit Ortega. Clay’s was back to blood order specimen from rant take blood then drawn. appear in a face-to-face personally did not magistrate to swear to meeting with the Standard of Review of the facts affida- the truthfulness ruling A trial on motion court’s continues, vit; thus, argument her appeal for abuse suppress reviewed on invalid. We will discuss her affidavit was State, S.W.3d of discretion. Crain v. 315 together. two issues (Tex.Crim.App.2010). 48 review light most the record favorable BACKGROUND trial and reverse the court’s conclusion hearing In of a on the motion to lieu only if it the zone of judgment is outside stipulated Dixon, submitted suppress, parties disagreement. State v. reasonable support and in re- facts and briefs 590 (Tex.Crim.App.2006). Ac- sponse suppress. motion to if it is ruling We sustain the lower court’s facts, reasonably cording stipulated supported by to the the record and is by Department theory speeding applicable for correct on of law stopped Further, Safety Trooper Ortega. give J. After the case. almost Public express to a trial court’s administering sobriety field tests and mak- total deference notary signed by it was courts have been with a affidavit was Other pattern with some of the same character- fact faxed to the the warrant. results Swenson, istics. Different have occurred. did not address the court 05-10-01195-CR, No. Gravitt on the issue but rather validated the seizure Tex.App. (Tex.App.-Dallas Nov. LEXIS require- good exception faith to the warrant 2, 2011, h.); Hughes v. no holding could have the collat- ment. Such a (Tex.App.-Amarillo, pet.); invalidating any subsequent impact eral 05-09-00607-CR, Swenson telephonically oath as administered use Tex.App. (Tex.App.-Dallas Mar. LEXIS 1832 goоd exception faith oath/warrant Gravitt, Hughes pet.). In requirement. reach the courts did not issue because determination implied Virtually of historical all United States for authority for, de novo application of, and review the court’s the search or seizure evidence of search to those of the law and seizure use a criminal proceeding emanates Id. facts. interpretation from the of the Fourth Amendment United States Constitu-

Article 18.01 tiоn. And the Fourth Amendment currently Clay asserts that Texas law United State Constitution require does not an requires affiant of a search warrant a face-to-face confrontation between personally appear in face-to- magistrate and the affiant. U.S. Const, meeting with face the individual adminis- (“... issue, IV. shall Warrants amend. oath in tering the order for the affidavit cause, but upon probable supported disagree be valid. We asser- affirmation, ”); Oath оr ... United States tion. (9th Bueno-Vargas, 1104, 388 F.3d 1111 Article 18.02 of the Texas of Crim Code Cir.2004). moral, religious, legal inal of a Procedure authorizes the issuance significance of the undertaking remains warrant seize blood. See Tex.Code the same whether the oath taker and the 18.02(10)(West 2005); Ann. art. Crim. Proc. witness communicate face-to-face or over (Tex. Gentry v. 902 Turner, the telephone. United States v. A Crim.App.1982). may search (2d Cir.1977). 558 50 F.2d Rule 41 however, issue, “unless sufficient facts the Federаl Rules of Criminal Procedure presented satisfy issuing are first expressly war- obtaining authorizes search magistrate probable in fact cause does telephone. rants via 41. Fed.R.Crim.P. its exist for issuance. A sworn affidavit And, in setting, the Federal even if Rule establishing substantial setting forth followed, is not “in- showing of every cause shall be in filed in tentional deliberate disregard pro- of a in which a is re stance search warrant vision in showing the Rule” of preju- quested.” ANN. art. Tex.Code Crim. Prоc. suppression dice requires of evidence. 18.01(b) (West Supp. is no There Turner, 558 F.2d at 52. for the definition word “affidavit” Turner, In an argument Penal or in the that the Code Code of search Procedure.3 warrant was defective it did 18.01(b) declaration, verification, 2. We note article does not re- written sworn certi- quire every fication, that the affidavit that is “filed in or affidavit.” This statute is presented must be instance” to the contained in the Civil Practice and Remedies Rather, before the search warrant is issued. Code 132.001. The Code section of Criminal requirement is that must sufficient facts Procedure term def- uses "affidavit.” The satisfy inition of "affidavit” that has been used probable cause exists for issuance of some criminal cases comes from the Govern- Thus, case, appropriate warrant. it ment To the Code. extent that the Govern- testimony be suitable to reduce the ment Code definition of affidavit is utilized gives officer оn oath over the to a why proceedings, criminal we see no reason writing and filed even after the warrant provision the unsworn declaration from Turner, ‍​‌‌​​‌​​​‌‌‌‌‌​‌​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​‍issued. United States v. F.2d Civil Practice Remedies Code would Cir.1977). (2d We need not decide that However, apply. express opinion proceeding. issue in this in relation to its use connection with as it issuance of a search warrant at time legislature this approved 3. In use of unnecessary disposition pro- an affi- an "Unsworn Declaration” in lieu of prescribed use of the satis- ceeding. davit. The form requirement have "a fies that a document 'd). question ref App.-Waco sworn to in the an affidavit issue on either presented in was whether an un or oral Hunter a state physical presence affiant search warrant affidavit made given testimony personally Court, rely search warrant invalid. This suppression. at require did not in sec Further, Court so on the definition of “affidavit” the Second Circuit 312.011(1) years ago: tion Government over aptly stated Code, held that the search warrant since Alexan- years one hundred affidavit,” because the term “sworn invalid the telephone, der Bell invented Graham 18.01(b) of of used article the Code become, has in the Long truly Distance Procedure, writing required Criminal a advertisement, the well-known words of affiant, signed by the sworn to before an being there.” thing “the next best oaths, officer аuthorized to administer Thus, prece- Id.4 it is clear from federal by the under officially certified to officer the Fourth Amendment interpreting dent his of at 602. Hunter is no seal office. Id. through states applicable and made to the law. longer the Amendment that Fourteenth a Fourth Amendment not contain does Appeals The of effective Court Criminal face-to-face, presence, require- physical or ly years its Hunter four after overruled the person ment the affiant and between S.W.3d issuance. See Smith administering oath. Smith, In (Tex.Crim.App.2006). Appeals Court of Criminal Clay turn to article 18.01 which now Hunter, is, with the same issue as that requirement. have a contends does such affidavit in unsigned support whether But be little difference appears there a the search invalidated between article 18.01 and Fourth Appeals warrant. The of Criminal Court requirement Amendment warrant of the proved it did not if other evidence held statute, States Constitution. United personally that the affiant swore to the legislature as the is sometimes in- Texas of the in the affidavit truth do, simply clined a codification of the who at issued the warrant. Id. requirement, see e.g. federal warrant Tex. 792. (West 2005) Code Crim. Proo. Ann. art. 1.10 (state statutory version of the constitution- decision, route that the Court clause) jeopardy al double and art. 38.23 that Appeals Criminal noted article 18.01 (West (state 2005) statutory version of the makes thе Code Procedure rule), exclusionary for pur-

federal our it he clear that affiant must swear that here, poses article adds nothing 18.01 knowledge the facts has set out requirement for an oath constitutional it written affidavit and that is then the or affirmation.5 neutral who must then deter

Clay opinion probable relies on an from this mine that those facts establish her argument Court to that article cause. Smith v. (Tex. Crim.App.2006). communication. The Court requires

18.01 face-to-face 789-790 (Tex. that See Hunter v. 92 S.W.3d 596 also nоted the United States Constitu aired, popular require it affi- 4. Since that commercial We note does the sworn huge technological writing; have Com- implies had advances. a davit must "filed” only ability now munication includes does but the issue before us not involve affiant, pictures but send absence of written document. ability streaming via to transmit live video Skype and other services. provides that “no simply tion Warrants second statement upon by relied issue, cаuse, sup shall but by that, is a comment the Court while affirmation, ported particu or by Oath recognizing innovations such as telephonic describing to be larly place searched search warrants should not be foreclosed to ‍​‌‌​​‌​​​‌‌‌‌‌​‌​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​‍be persons things and the seized.” by requirement affidavit, a signed IV). Const, Id. at (quoting U.S. amend. leave those potential changes “[w]e future But, ob of Criminal to the Texas Legislature....” Smith served, nor neither the statute the Consti State, (Tex.Crim.App. sрecifically require signature; tution statement, believes, This is an they require an oath. The Court acknowledgment procedure to ob of Criminal determined that it was tain warrants telephone and facsimile swearing, taking the act of statute, has not been authorized does validity was essential law, not exist under Texas and therefore affidavit, signature not the officer’s cannot be valid at practice that it was law to retain present time.6 We believe it is an not such flexibility some in the of technological face acknowledgement certainly and such is not Id. at 792. See also advances. United stated, prohibition. a As the Court it is (2d Turner, 46, States v. 558 F.2d 50 Cir. important for to the law retain flexi some the signature The Court held that bility in the face technological of advances. required. of the affiant was not Id. at 792. Had flexibility there been no in Clay relies on two statements made statute, the the Smith Court have would by of in the Cоurt Criminal Smith compelled been to that signed hold affi authority as for her conclusion that thus, required. davit was It did not. And be magis- affiant must face-to-face with a the statute is also flexible so as to allow swearing necessary trate when to the facts taking the of an oath over the or telephone to establish cause. The is first by other some electronic means of commu the statement a missing signa- Court’s nication under certain circumstances. ture wоuld invalidate a warrant That the development is nature of of if proved other evidence that the affiant only the common law. We must decide to of personally swore the truth the facts case, issue this is —in issuing magis- before affidavit invalid it made because was not analyze trate. The Court did not the issue on an oath administered face-to-face. meeting the context of a face-to-face Smith, analysis neglects her of magistrate; betwеen the affiant part by to the last of thus, include the sentence a holding this statement is not the Court which we physical pres- the affiant need be in the quite stating, believe important. ence of the is After swearing when the truth changes affidavit. those potential “[w]e leave future pause Tyler cally present 6. We note that the Court relied of the front portion on the same of the Court of Criminal swearing other officer when to the facts Appeal’s оpinion as in Smith does Aylor affidavit to a search warrant. conclude that because "the current state 12-09-00460-CR, WL then, Texas law as to in the alluded above 1659887, *4, Tex.App. LEXIS quoted by appeals dicta criminal court of April (Tex.App.-Tyler *11-12 Smith, personal physical, appear- that a is ref'd). opin- For the discussed in this reasons necessary, magis- ance either before the is ion, agree Tyler we do not with the Court’s trate, qualified to or before somеone who is conclusion. oaths,” physi- administer an affiant must be responsibility.” of seriousness and Smith Legislature ...the (Tex.Crim. in v.

continued, stand “... but we should pro- App.2006). The affidavit this case declaring that all way by the future vides, Affiant, being “The undersigned sworn but affidavits, properly are peace officer under the laws of Texas and necessarily invalid.” Smith unsigned, are (Tex.Crim. sworn, fol- being duly on oath makes the It lowing statement and accusations[.]” App.2006). in- by as the affiant and Ortega Likewise, not stand in the we should signed jurat that it was stating cludes declaring all way future magis- subscribed sworn sworn to for search warrants affidavits instance, In this fa- personal trate.7 necessarily are invalid. miliarity trooper what outer today deciding are very strong provides each other’s voice of such remote methods boundaries truthfulness, trustworthiness, indicia legisla- making acceptable are oaths reliability Trooper call upon so as to Rather, we аre decid- may ture do. tell Ortega’s duty “sense of moral prohibited procedure if the utilized truth and instill in him a sense of serious- that, hold un- existing statute and responsibility.” Id. ness and case, of this it is not. We do der Therefore, case, the facts under procedural what safe- not here define meeting trooper face-to-face between the necessary if the officer and guards required the was the administering do person the oath not oth- making oath did and thus еrwise know each other Ac- not invalidate the search warrant. recognize voice over the tele- each other’s the cordingly, trial court did not err in phone. Clay’s to denying suppress. motion Although the Government Code defines writing signed by an as a the Conclusion an maker and sworn to before officer au- overruled, two Clay’s issues are and the oaths, thorized to administer Tex. Gov’t judgment trial court’s is affirmed.8 (West 312.011(1) 2005), § Code Ann. agree with the that it is the opinion Smith concurring. Justice DAVIS act of swearing, taking the the Justice, DAVIS, concurring. REX D. validity that is to affi- essential the us, purpose ap davit. The the oath to call is not for an “is It intermediate court, upon pellate duty forge public policy the affiant’s sense of moral to State, tell the and to in him is especially truth instill a sense on regard upon perjury, 7. At least in the offense of were made an oath. The Court held jurat no jurat evidence addition to the is needеd was that that the alone evidence made and, establish that statements were upon were made an oath statements upon Hardy an oath. v. 213 S.W.3d false, consti- since factual statements were 916, (Tex.Crim.App.2007). note that perjury. tuted Id. Court of Criminal does reference notary. physical presence of Such refer- issues, Clay’s disposition 8. Because of our opinion ence fact is not the issue of the or the response we need not аddress the State’s that is, opinion which the there- turned suppressed the seizure not be under should fore, analysis. immaterial What good exception faith re- the warrant under evi- review was whether there was quirement. dence that the false statements made affidavit, body allegations, factual leave legalizing telephonic potential oaths for those changes sue future law. search warrants under Texas Gins Legislature .... Assocs., Inc., burg & Chernoff/Silver added). (emphasis Aylor The court 231, 237 (Tex.App.-Houston [1st recognized context, in the civil 2004, pet.) (citing Lubbock Coun Dist.] affiant must swear to an affidavit in the Bonds, v. Trammel’s Lubbock Bail ty, Tex. presence physical of the officer administer 580, (Tex.2002)); Kline v. ing the oath and oath taken solely 776, O’Quinn, 874 S.W.2d 784 (Tex.App. by telephone is insufficient. See Tex. Gov’t denied). 1994, -Houston writ [14th Dist.] (West ‍​‌‌​​‌​​​‌‌‌‌‌​‌​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​‍312.011(1) § 2005); Sulli Ann. Code Thus, while I majority’s share the concern Bank, van v. First Nat’l 37 Tex.Civ.App. law, technology outpacing about I be 228, 229-31, (1904); 83 S.W. 422-23 teleрhonic lieve the issue of oaths is a Hubner, see also DDH Aviation LLC v. policy Legisla matter that belongs 05-04-01319, 2005 WL at *1 (or Appeals), ture to the Court of Criminal (Tex.App.-Dallas Oct. pet.) reason, court. not this For this I cannot (mem. op.).

join majority opinion. majority opinion, As noted Aylor court thus concluded that the Tyler Appeals recently Court of addressed current state of Texas law is physi- that a Aylor issues No. 12-09- cal, personal appearanсe is necessary, ei- 00460-CR, (Tex.App. 2011 WL 1659887 magistrate, ther or before ref'd) (mem. -Tyler Apr. op., someone who is qualified administer designated publication). Aylor Aylor, oaths. 2011 WL at *4. that, dicta, court noted albeit in the Court Thus, “an affiant be physically pres- must implied has that pure ent front of the or officer ly telephonic permissible oaths are not un authorized to administer oaths when der Texas law. In Smith v. 207 swearing to the facts his affidavit to (Tex.Crim.App.2006), 792-93 Further, a search warrant.” Id. the Court Criminal stated: “where the solely oath was taken Although the signature affiant’s on an telephone and physically not in front of affidavit serves as an memori- oaths, officer authorized administer act alization officer’s of swearing presence requirement the is not met.” Id. the it is that magistrate, act of agree Aylor’s disposition I of Clay’s swearing, itself, signature the that is argument. I also that the note Court of too, It is important, essential. that the pеti- refused State’s flexibility law retain some in the face of discretionary tion for review in Aylor. technological For example, advances. case, In this was oath administered courts, federal courts and some state by the magistrate Trooper Ortega by permit warrants, telephonic now search telephone. does The record not show that day one can in and foresee the Trooper Ortega took oath in front of might seаrch warrants obtained be via e- some other officer authorized adminis- or a mail recorded video conference with oaths, ter and the affidavit is not notarized. magistrate many away. located miles Thus, presence requirement was Texas, state large In a as such inno- Aylor, But in satisfied. unlike State should by vations not be foreclosed if argues here that even the affidavit was signed of a affidavit if requirement invalid, Trooper Ortega acting oаth can was in by officer’s be memorialized other, equally satisfactory, means. reliance on the search good-faith warrant (mem. op., pet.) Dallas Mar. the blood-test evidence he obtained

when designated for publication). was there- requirement presence and the excused. fore argues good-faith that the reli pro- criminal of the code of exception apply Article 88.23 ance should not obtained in that evidenсe has for the provides cedure the State raised this issue first However, of the United States appeal. violation on if the trial time and state law is any theory federal on Constitutions court’s decision correct case, accused. against it should applicable inadmissible law Tex. 38.23(a) (West art. upheld. Powell 898 S.W.2d Proc. Ann. Code CRiM. if the exception there law But is an n. 4 Romero v. (Tex.Crim.App.1994); (Tex.Crim. acting objective State, officer was enforcement ‍​‌‌​​‌​​​‌‌‌‌‌​‌​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌‌‌‌​‌​‍543-44 Here, reliance a warrant issued good-faith Ortega was Trooper act App.1990). magistrate based on good-faith a neutral on the reliance warrant 38.23(b). evidence; art. cause. Id. he obtained when the blood-test therefore, Clay’s suppress motion was states, “There is no indication the denied. properly acting good faith but rather trooper was suggests an effort to save everything time disagree majority’s Because I with the cirсumventing necessity and cost reasoning regarding Clay’s issues but stip disagree. I personally appear.” agree judgment trial court’s Trooper Ortega ulations indicate that affirmed, respectfully should be I concur. objective faith “acting good reliance obtaining the evi

upon” the warrant case, parties stipulated

dence. In Trooper Ortega they each rec

spoke telephone; over voice; Ortega Trooper the other’s

ognized the “Affidavit for

swore to during phone Search Warrant” conver CAVERNS, MONT BELVIEU sation; Trooper Ortega then faxed the affi LLC, Appellant magistrate; davit based on issued the Trooper Ortega; and faxed it to TEXAS ON ENVIRON COMMISSION blood was drawn Covar, QUALITY; and Zak MENTAL There was was issued. Vickery, to Mark R. Execu Successor challenge neutrality magis Director of tive the Texas Commission 38.23(a) Article its primary

trate. has as Quality, Appellees. on Environmental purpose police activity deterrence of No. 03-11-00442-CV. reasonably be could have been lieved to be lawful the officer commit Texas, of Appeals ting the same. Drago Austin. (Tex.Crim.App.1977); Carroll v. Aug. (Tex.App.-Aus 911 S.W.2d pet.). tin That is not case Carroll, 223;

here. at see

also Swenson v. No. 05-09-00607-

CR, (Tex.App. 2010 WL at *3-4

Case Details

Case Name: Sara Katherine Clay v. State

Court Name: Court of Appeals of Texas

Date Published: Mar 21, 2012

Citation: 382 S.W.3d 465

Docket Number: 10-09-00355-CR

Court Abbreviation: Tex. App.