Can an officer swear an oath over the telephone to obtain a search warrant, or does Texas law require a face-to-face meeting with a magistrate?

The Texas Court of Criminal Appeals tackled this question in its Jan. 9 opinion in Sara Katherine Clay v. The State of Texas,a case of first impression. The CCA ruled that the telephone warrant was permissible but that courts must decide the issue on a case-by-case basis until the Legislature amends the statute specifically to permit telephone warrants.

The 8-1 opinion in Clay explains the background: A state trooper stopped Clay for speeding, suspected her of drunk driving and completed an affidavit for a search warrant to draw Clay’s blood. He called a Hill County court-at-law judge, “each recognized the other’s voice,” and the officer “swore to and signed” the warrant affidavit. The officer faxed the affidavit to the judge, who signed and faxed back a search warrant. The trial court denied Clay’s motion to suppress; she pleaded guilty in a plea agreement. On appeal, she argued the warrant was invalid because the officer’s affidavit “was not sworn to in the physical presence of the magistrate.” The 10th Court of Appeals disagreed, and she sought review at the CCA.

In deciding the case, the CCA interpreted Texas Code of Criminal Procedure Article 18.01(b), which requires a “sworn affidavit.” Writing for the majority, CCA Judge Tom Price noted that the sworn affidavit fills two functions: The affidavit must be taken under oath to solemnize it, and it must be in writing to “facilitate later judicial review.” The affidavit here was in writing, so the question was whether it was properly solemnized.

“While our case law has historically defined an affidavit to be a writing sworn to ‘before’ the oath-administering authority, most of those cases pre-date the advent of our most modern electronic means of communication,” wrote Price. He noted the state argued that one definition of “before” in Black’s Law Dictionary is “under the purview of.”

Price wrote, “[A] search warrant affiant could validly present himself ‘before’ an issuing magistrate — that is to say, ‘under the official purview of’ that issuing magistrate — without the necessity of presenting himself corporally.”

The affidavit “was properly solemnized” because the officer and judge recognized each other’s voices on the phone, Price wrote.

Until the Legislature amends Article 18.01(b) to “regulate the process of obtaining search warrants by telephonic or other electronic means,” courts must decide if the affidavit satisfies the “solemnizing function” on a case-by-case basis, wrotePrice.

Judge Lawrence Meyers wrote in dissent, “I would hold that only the legislature can expand the statute to allow search warrants to be obtained telephonically, and it has yet to do so.”

Clay’s lawyer, Fort Worth solo Jerry Wood, didn’t return a telephone call seeking comment.

Albritton Law Firm partner Jason Cassel of Longview says he argued a similar case before the 12th Court of Appeals. He thinks Clay will “complicate” cases where an officer swore an oath over the phone, because a prosecutor or criminal-defense lawyer must “ferret out” whether the officer and judge knew each other.

Cassel also adds, “I think it allows for people to be a little more fast and loose with the rules. . . . If we are in the follow-the-rules game, then everyone should be following the rules.”

Hill County District Attorney Mark Pratt, who argued for the state, says, “I think that this decision isn’t one that will result in the widespread use of telephonic search warrants.”

Pratt says he’ll continue advising officers to swear to affidavits physically before a notary or another officer, because the CCA didn’t provide guidance in Clay on the factors “to determine if the oath was sufficiently reliable when given over the telephone.”