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Texas Court of Criminal Appeals: Good Faith Exception Inapplicable to Unsworn Search Warrant

In the early morning hours of July 9, 2016, Officer Tyler Bonner of the Pantego Police Department arrested Chase Erick Wheeler for driving while intoxicated. Wheeler refused to submit to a field sobriety test, as well as to blood or breath testing.

Bonner applied for a search warrant using pre-printed forms available in the police station. However, because Bonner was the only officer on duty, he failed to properly complete the section verifying the affidavit supporting the search warrant was sworn before another authorized person (a jurat) under Texas Gov’t Code § 602.002.

The police dispatcher electronically sent the warrant application to Magistrate Judge Sara Jane Del Carmen, who signed the warrant without verifying the jurat’s signature (which was left blank). Bonner executed the search warrant to obtain a sample of Wheeler’s blood, and Wheeler was charged with a DWI.

Wheeler motioned to suppress the blood sample on the grounds that the unsworn affidavit undermined the legality of the warrant. The court denied the motion by applying the good faith exception to the exclusionary rule, codified in Texas Code of Criminal Procedure Article 38.23(b), stating that Officer Bonner acted in “good-faith reliance” on the warrant issued by the magistrate. Wheeler pleaded guilty and proceeded to appeal.

The Court of Appeals agreed with Wheeler’s claim, however, and the State filed an appeal. The Court of Criminal Appeals granted review on the single issue of whether Article 38.23(b) applies to warrants executed where the underlying affidavit is unsworn.

Article 38.23(a) states, “No evidence obtained by an officer or other person in violation of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

The Texas Constitution itself requires that all search warrants be supported by a probable-cause affidavit that is sworn “by oath or affirmation.” Texas Const., art. I, § 9. This is also codified at Tex. Code Crim. Proc., art 1.06: “No warrant to search any place or to seize any person or thing shall issue without ... probable cause supported by oath or affirmation.”

“Texas law has always required that the oath must be made before or in the presence of another to convey the solemnity and critical nature of being truthful.” Clay v. State, 391 S.W.3d 94 (Tex. 2013).

The Court found that the search warrant was clearly deficient under both the Texas Constitution and law. However, because the magistrate still issued the warrant, the question turns on whether the good-faith exception applies.

Article 38.23(b) states that the good-faith exception applies to an officer acting “in objective good-faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” The question facing the Court was whether Bonner acted in an objectively reasonable manner when he executed a search warrant he knew was supported by an unsworn affidavit.

The Court previously ruled that an officer’s subjective opinion of acting in good faith is “irrelevant” and that “courts must assess the objective – not subjective – good faith of the officer executing the warrant.” McClintock v. State, 541 S.W.3d 63 (Tex. 2017); also quoting Flores v. State, 367 S.W.3d 697 (Tex. 2012).

The Court listed five reasons why Bonner could not have been objectively reasonable in relying on the defective warrant: “(1) the oath requirement has been a constitutional mandate for all law enforcement officers for well over a century; (2) the Texas Legislature has codified and repeatedly emphasized the oath requirement in the Code of Criminal Procedure; (3) this Court’s opinions have consistently held that the oath requirement is critical to obtaining a search warrant; (4) law enforcement officers are taught in the police academy that they must swear to the truthfulness of their probable-cause affidavits before a magistrate or other qualified person; and (5) the forms used by Officer Bonner in this case for the probable-cause affidavit and search warrant both refer to the oath requirement and state that the documents were ‘verified’ and/or ‘sworn before’ a magistrate.”

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Related legal case

Wheeler v. State

 

 

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