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March 16, 2010
BRYAN CHRISTOPHER SWENSON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
On Appeal from the County Court at Law No. 1 Collin County, Texas. Trial Court Cause No. 001-83766-08.
The opinion of the court was delivered by: Mary Murphy Justice
AFFIRM
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Myers.
The sole issue in this misdemeanor driving while intoxicated case is the admissibility of blood test results obtained based on an allegedly defective probable cause affidavit. We affirm the judgment.
Background
Bryan Christopher Swenson moved pre-trial to suppress his test results showing a blood alcohol level of .11. Swenson argued the drawing of his blood was an unlawful seizure in violation of the United States and Texas Constitutions because the affidavit in support of the warrant was invalid. Specifically, Swenson argued the affidavit was defective because of the recitation that the affidavit was "[s]worn to and [s]ubscribed before" the magistrate, when the officer had appeared by telephone and presented the affidavit by facsimile. Swenson argued that the officer had to be physically present before the magistrate to swear to the truth of the affidavit. The trial court denied the motion, concluding the affidavit "was properly sworn to and authorized the issuance of the search warrant." The trial court concluded alternatively that the blood was seized "in good-faith reliance on a search warrant based on probable cause and issued by a neutral magistrate." A jury subsequently convicted Swenson, and the trial court assessed an agreed punishment of ninety days' confinement, suspended for one year, and a $700 fine.
Standard of Review
We review a trial court's ruling on a suppression motion under a bifurcated standard, giving "almost total deference to a trial court's determination of historical facts" and reviewing de novo the court's application of search and seizure law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)); see also St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). In conducting our review, we view the evidence in the light most favorable to the trial court's ruling and determine whether the evidence supports the trial court's implicit or explicit findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We will sustain the ruling if it is supported by the record and correct under any theory of law applicable to the case. St. George, 237 S.W.3d at 725.
Applicable Law
The involuntary taking of a blood sample by law enforcement officers is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution and article one, section nine of the Texas Constitution. Schmerber v. California, 384 U.S. 757, 767 (1966) (United States Constitution); Smith v. State, 557 S.W.2d 299, 301 (Tex. Crim. App. 1977) (Texas Constitution). A search warrant is therefore required absent an emergency threatening destruction of evidence. Schmerber, 384 U.S. at 770; Smith, 557 S.W.2d at 301, 302. Article 18.02 of the Texas Code of Criminal Procedure authorizes the issuance of a warrant to seize blood. See Tex. Code Crim. Proc. Ann. art. 18.02(10) (Vernon 2005) ("search warrant may be issued to search for and seize . . . items"); Gentry v. State, 640 S.W.2d 899, 902 (Tex. Crim. App. 1982) (blood is "item" under article 18.02). Before a warrant may issue, however, a sworn affidavit "setting forth substantial facts establishing probable cause" must be filed. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2009). The purpose of the affidavit "is to memorialize the affiant's recitation of the facts, conclusions, and legal basis for the issuance of the search warrant." Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006) (citing Boyer v. Arizona, 455 F.2d 804, 807 (9th Cir. 1972) (Ely, J., dissenting)). The affidavit is valid if the affiant personally swears to the facts contained in the affidavit before the magistrate issuing the warrant and signs the affidavit or other evidence proves he personally swore to the facts in the affidavit before the issuing magistrate. See Smith, 207 S.W.3d at 791-92. The purpose of the oath "is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Id. at 790 (citing United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977)).
Under the exclusionary rule found in article 38.23 of the code of criminal procedure, evidence obtained in violation of the United States and Texas Constitutions and federal and state laws is inadmissible against the accused. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). The rule is designed to deter police misconduct and assumes "the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right." United States v. Leon, 468 U.S. 897, 916, 919 (1984) (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974)). The rule also provides an exception if the law enforcement officer was acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause. See Tex. Code Crim. Proc. Ann. art. 38.23(b). This provision is known as the "good faith exception." See Smith, 207 S.W.3d at 794. In the absence of an allegation that the magistrate abandoned the neutral role-that is, the magistrate served as a rubber stamp for police or acted as an "adjunct" officer-suppression of evidence obtained with a warrant later found to be defective is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. Leon, 468 U.S. at 914, 926.
Analysis
The issue of whether an officer's telephonic oath and presentation of the affidavit by facsimile satisfies the requirement of personally swearing to the facts before the issuing magistrate need not be determined on this record because resolution of that issue is unnecessary to the disposition of this case.*fn1 Assuming without deciding the affidavit was defective because of the manner in which it was presented, we conclude the "good faith exception" applies and the record supports the trial court's alternative conclusion that the blood was seized "in good-faith reliance on a search warrant based on probable cause and issued by a neutral magistrate." See United States v. Russell, 960 F.2d 421 (5th Cir. 1992) (good faith exception applied to warrant missing attached description of items to be seized); Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim. App. 1997) (same; warrant unsigned); Cole v. State, 200 S.W.3d 762, 764, 766 (Tex. App.-Texarkana 2006, no pet.) (same; use of same signature form attached to both affidavit and warrant); White v. State, 989 S.W.2d 108, 108, 110 (Tex. App.-San Antonio 1999, no pet.) (same; recalled warrant).
At the suppression hearing, both the officer and magistrate who issued the warrant testified. Officer Ursula Mayorga, a nine-year veteran, testified she observed Swenson at 12:38 a.m. swerving between lanes and almost hitting two cars. After she stopped Swenson, Mayorga observed Swenson's eyes were red and glassy and he smelled strongly of alcohol. Swenson admitted drinking "several beers," and Mayorga had him exit the vehicle to perform standardized field sobriety tests. Swenson denied any head and eye injuries, and Mayorga performed three tests-horizontal gaze nystagmus (HGN), exhibiting six clues; the walk and turn, exhibiting one clue; and the one-leg stand, exhibiting one clue. Mayorga also performed a portable breath test that showed the presence of alcohol. She concluded from the totality of the circumstances that Swenson "was intoxicated due to the introduction of alcohol and/or drugs." After placing Swenson under arrest, a back-up officer transported him to the jail. Once in the intoxilizer room, Mayorga gave Swenson his statutory warnings about the consequences of refusing to provide blood or breath specimens and offered him the opportunity to provide a sample of his breath or blood. Swenson declined.
After Swenson refused to give a specimen, Mayorga went to her police car and prepared the affidavit based on her observations and the events described. Mayorga testified she spoke to the magistrate before she faxed her affidavit to him. The magistrate asked Mayorga if everything in the affidavit was "true and correct," to which she responded "yes." She believed she was under oath and would be punished for perjury if the affidavit was untrue. Mayorga also testified in the suppression hearing that she had never been told the process of swearing to facts by telephone was incorrect or improper and all warrants for blood draws obtained by her used this procedure. Mayorga had never personally sought another type of search warrant, but the other types of warrants she had seen were "during the daytime hours, where you get hold of a judge in person." She explained the difference based on the "timeliness of the evidence, the blood going out of their system." Mayorga responded to Swenson's counsel that she knew of no "section of the law or the code . . . that gives an exception to blood draws that can be done by fax rather than personally appearing before a magistrate." The only judge who had ever refused a telephone warrant for blood seizure without the affidavit being signed first by a notary was the presiding judge in the trial court proceedings.*fn2
The magistrate testified next. He stated it was common for officers to call him to review the elements of the warrant before faxing him the affidavit and warrant. He testified it was his practice to ask any officer seeking a search warrant to affirm or swear to the truth of the facts in the supporting affidavit under the penalty of perjury. If the facts showed probable cause, he would sign the warrant. The magistrate agreed with Swenson's counsel that "swear[ing] out a search warrant and fax[ing] it to a magistrate . . . is relatively a new practice," and he did not know of "any exception to the law that allows an officer to swear [or affirm] over the telephone." He testified he knew Mayorga, and he believed the affidavit was valid. The trial court specifically found the officer and magistrate credible and made the following additional findings: (1) the magistrate had previously spoken with the officer and recognized her voice over the telephone; (2) the magistrate asked the officer if her affidavit was true and correct; (3) the officer replied that it was; (4) both the magistrate and the officer believed the officer was properly sworn and under penalty of perjury for her affidavit; (5) the officer faxed her search warrant application to the magistrate, who signed the affidavit as the notarizing official and the search warrant as the magistrate, and faxed the signed warrant back to the officer; and (6) Swenson's blood was drawn pursuant to the signed search warrant. The record supports these findings and further supports the trial court's conclusion that the officer acted in good faith.
Swenson does not question Mayorga's integrity in preparing her affidavit or reasonably believing probable cause existed for seizure of Swenson's blood specimen. Swenson also does not question that the magistrate knew the affiant officer, recognized the officer's voice on the telephone, received the "affidavit for search warrant" by fax, and issued the search warrant based upon the affidavit. Nor does he question the integrity and neutrality of the magistrate issuing the warrant. Having repeatedly obtained warrants under the procedure used by the magistrate, Mayorga could believe in objective good faith the warrant was valid. See Leon, 468 U.S. at 921 ("In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient."). The trial court, who observed both the officer and magistrate as witnesses, made specific findings as to their credibility and Mayorga's good faith reliance on the warrant. On this particular record, we determine the "good faith exception" applies and sustain the trial court's ruling on that basis. St. George, 237 S.W.3d at 725. Our conclusion, however, is limited to the specific facts in the record before the Court and the sole issue necessary to disposition of this appeal.
Conclusion
Swenson's sole issue is overruled. We affirm the trial court's judgment.
Do Not Publish -- Tex. R. App. P. 47
Opinion Footnotes
*fn1 We note that the court of criminal appeals has stated in dicta that the validity of telephonic search warrants in Texas should be left to the Texas Legislature. See Smith v. State, 207 S.W.3d at 792-93 ("We leave those potential future changes to the Texas Legislature. . . .").
*fn2 The presiding judge is the same judge who concluded on the record before us that the warrant was valid and, alternatively, the "good faith exception" applied.
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