by Maia McCoy
To prepare myself for this week’s Criminal Jurisprudence Committee, I read through all 15 bills scheduled for hearing on Wednesday, along with the committee’s interim report, which provides insight into issues that might be addressed as session progresses. I found myself entangled in sticky hypotheticals. They make several proposals to “clean up” parts of statute in the Texas Code of Criminal Procedure. But if they clean up the language in this code, does it make it more difficult for those who have been convicted of a crime to make an appeal? Should we close these loopholes in the language, or might it actually be better for the law to remain ambiguous and open to judicial interpretation and discretion? Spoiler alert: my conclusions are about as vague as current law, but please read on if you are also captivated by the law and/or interested in legal advocacy work.
According to the report, the Texas Code of Criminal Procedure hasn’t undergone a code-wide revision since 1965 and has instead been revised slowly over the course of many sessions. As a result, antiquated technologies occasionally surface, like the telegraph, which was once used to forward arrest warrants. The telegraph appears for the first time in Article 15.08. A bill to omit “telegraph” would be completely benign in the grand scheme of things, because the statute is well constructed, allowing for “any method that ensures the transmission of a duplicate of the original warrant.” But what about other seemingly small revisions?
The interim report also suggests that the Legislature heed a recent court ruling and update Article 18.01(b) to include technological advances. In 2008 a police officer telephoned a judge (as opposed to appearing in-person) to obtain a search warrant to draw blood for use as forensic evidence in a DWI case. The defendant appealed to the Texas Court of Criminal Appeals to suppress the evidence, as Article 18.01(b) makes no mention of obtaining a search warrant via telephone. In the 2013 ruling in Clay v. State, the appellate court ruled in favor of the officer and the judge rationalizing that the telephone was a permissible means of swearing out the warrant affidavit, as the two recognized each other’s voices, and the officer’s affidavit was written and faxed to the judge for signature. Only one justice voiced dissent, asserting that it was not within judicial purview to broaden the meaning of the law but only within the Legislature’s. Should the Lege allow police officers to obtain warrants by phone?
I find it unsettling that merely “cleaning-up” the code could possibly erode our 4th Amendment rights, which protect us from unreasonable search and seizure and require that a search warrant name both the place to be searched and the thing or person likely be found in order to establish probable cause. An officer’s word alone is not supposed to be grounds to establish probable cause. I don’t have the faxed affidavit or the facts of the appellate case before me, so I can’t say what the grounds were for granting the search warrant. On its surface, it seems pretty straightforward – place to be searched: Clay’s arm; thing to be found: alcohol in blood.
This case and all speculation aside, amending the statute to include telephone as a means of obtaining a warrant should at least prompt discussion. While the current law is vague, it was written when an in-person interview between magistrate and law enforcement was standard protocol, likely because such a practice facilitates and encourages a more thorough inquiry in regards to evidence sought by the officer. As social workers, we can attest to the importance of social cues provided by face-to-face interaction. The telephone only facilitates speed and convenience.
I am by no means an expert on, or even a student of, the law. I am also not assuming mal intent on an officer or justice’s part, but the federal and state constitutions protect law enforcement from potential lawsuits, the State from multiple appeals, and they protect our citizenry. As social workers we should care about these finer points, because our clients are often the most vulnerable to unreasonable search and seizure due to racial and religious profiling. Without thoughtful and documented investigation and adherence to a well-articulated protocol, an expired inspection sticker or broken headlight could provide entry for civil asset forfeiture or for deportation. How the Legislature cleans up this one statute affects all of our civil rights. Will they require that a smart phone be utilized to document an officer’s oral affidavit, will the language be ambiguous, or will this wait another few sessions?