Clay v. State

• Decision Date: 09 January 2013
• Docket Number: No. PD–0579–12.,PD–0579–12.
• Citation: 391 S.W.3d 94
• Parties: Sara Katherine CLAY, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

391 S.W.3d 94

Sara Katherine CLAY, Appellant

v.The STATE of Texas.

No. PD–0579–12.

Court of Criminal Appeals of Texas.

Jan. 9, 2013.

Jerry L. Wood, Fort Worth, TX, for Sara Kathrine Clay.

Mark F. Pratt, County Attorney, Hillsboro, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.

Must a law-enforcement officer seeking to obtain a search warrant, under Article 18.01 of the Texas Code of Criminal Procedure,¹ swear out the affidavit in support of that warrant in the physical presence of the magistrate or may he do so telephonically, as happened in this case? We granted the appellant's petition for discretionary review to address that question. We hold that the warrant affidavit in this particular case was properly sworn out, and we affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

On June 29, 2008, the appellant was arrested and charged with misdemeanor driving while intoxicated.² She filed a pre-trial motion to suppress evidence obtained as a result of the execution of a search warrant to draw her blood for forensic testing. The parties proceeded on stipulated facts, without conducting an evidentiary hearing. The stipulated facts establish that the appellant was stopped by State Trooper J. Ortega for traveling 80 miles per hour in a 70 mile-per-hour zone. When probable cause to suspect the appellant of driving while intoxicated arose in the course of the stop, Ortega placed the appellant under arrest and requested that she provide a breath specimen for testing. The appellant refused, so Ortega filled out an affidavit for a search warrant to obtain a specimen of her blood. Ortega then called Hill County Court at Law Judge A. Lee Harris on the telephone. Ortega and Harris “each recognized the other's voice[,]” and in the course of the telephone conversation, Ortega “swore to and signed” the search warrant affidavit. It is specifically stipulated that Ortega did not sign the warrant affidavit “in the physical presence of Judge Harris” and that “Judge Harris did not physically witness” Ortega sign the warrant affidavit. Ortega faxed the warrant affidavit to Judge Harris, who signed and dated the jurat. Judge Harris then signed a search warrant authorizing the blood draw and faxed it back to Ortega, who had the appellant's blood drawn accordingly.³

The trial court denied the appellant's motion to suppress. The appellant pled guilty pursuant to a negotiated plea agreement, and her punishment was assessed at three days' incarceration in the county jail (with three days' credit for time already served) and a fine of $1,500. The trial court certified her right to appeal. On appeal, the appellant argued that the search warrant was invalid because the affidavit in support of the warrant was not sworn to in the physical presence of the magistrate, as she contends is required by Article 18.01 of the Code of Criminal Procedure. The Tenth Court of Appeals disagreed, holding that “a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant.” ⁴ At least one other court of appeals has reached the opposite result on comparable facts, albeit in an unpublished opinion.⁵ We granted the appellant's petition for discretionary review to resolve this issue.⁶

THE ISSUE

By statute, an evidentiary search warrant may issue in Texas for the extraction of blood for forensic testing.⁷ The issuance of such a search warrant is governed by, inter alia,Article 18.01(b) of the Code of Criminal Procedure, which provides:

(b) No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Except as provided by [another Article not pertinent here], the affidavit is public information if executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours.⁸

Whether an investigating officer may apply for a search warrant by swearing out a supporting affidavit over the telephone is not specifically addressed in Article 18.01(b), or in any other provision of the Code of Criminal Procedure. We are therefore confronted with a case of first impression—just as we were half a dozen years ago in Smith v. State.⁹

In Smith, the officer seeking a search warrant swore out his probable cause affidavit in the physical presence of the magistrate, but, although he was under oath when he did so, he neglected to actually sign the affidavit. ¹⁰ The question before us was whether either the Fourth Amendment to the United States Constitution or Article 18.01(b) requires that an affidavit in support of a search warrant include the signature of the affiant. With respect to Article 18.01(b), we observed that the purpose of the signature on an affidavit is to memorialize the fact that the affiant took an oath.¹¹ While an oath is both constitutionally and statutorily indispensable, we held, a signature memorializing that the affiant swore out the affidavit is not, and the affidavit may still suffice to support the issuance of a search warrant if the record indicates that “the affidavit was solemnized by other means.” ¹² We expressly held “that the failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.” ¹³ We went on to observe,

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.¹⁴

Not surprisingly, both the appellant and the State find sufficient latitude in this passage from Smith to suggest support for their respective positions in this case.

For its part, the State relies upon Smith's emphasis on the need to construe the statute with sufficient “flexibility” to account for “technological advances” and points to our express allusion to those jurisdictions that have legislated specific procedures governing telephonic application for search warrants. The appellant counters that such innovations are properly left to the legislative branch, not the judicial—that, while it would be a proper exercise of our judicial function for us to hold that telephonic search warrants do not offend the Fourth Amendment (or, for that matter, Article I, Section 9 of the Texas Constitution), we would have no occasion to do so unless and until the Texas Legislature should authorize them, as have most of the other jurisdictions to which we alluded in Smith.¹⁵

We agree with the appellant that whether telephonic search warrants are permissible in Texas depends upon the parameters of the statute as it currently reads. Our job is to faithfully construe statutory language, never to enlarge upon it.¹⁶ We cannot, simply for the sake of keeping pace with the technology, stretch the meaning of the statute beyond the bounds of what its language will tolerate. Article 18.01(b) requires a “sworn affidavit.” In Smith, we held that a “sworn affidavit” need not contain the affiant's signature before it may support a search warrant, so long as there is other evidence to show “that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.” ¹⁷ And indeed, this Court has held for the better part of a hundred years that, before a written statement in support of a search warrant will constitute a “sworn affidavit,” the necessary oath must be administered “before” a magistrate or other qualified officer.¹⁸ In the name of flexibility, can it reasonably be said that an oath administered over the telephone satisfies the requirement that, to be a “sworn affidavit” for purposes of Article 18.01(b), a writing must be sworn to “personally ... before the issuing magistrate” or other qualified oath-giver? As presently written, does Article 18.01(b) allow for the granting of a search warrant based upon an affidavit that is sworn to over the telephone, inasmuch as the one thing we held in Smith to be “essential,” ¹⁹ namely, the oath, is not administered in the corporal presence of the magistrate or other official authorized to administer it?

ANALYSIS

The statutory requirement of a “sworn affidavit” serves two important functions: to solemnize and to memorialize. That the affidavit must be sworn to fulfills the constitutional requirement that it be executed under oath or affirmation so as “to impress upon the swearing individual an appropriate sense of obligation to tell the truth.” ²⁰ That it must be in writing serves the additional objective that the sum total of the information actually provided to the issuing magistrate in support of his probable cause determination be memorialized in...