Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

Search warrants for dummies

Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:

MoCo Search Warrant

There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.

This is your government at work - against you and your rights.

The volunteer army

From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am 

Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR

*****

From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11 

Any takers? Thanks, BR

Looking for volunteers?

Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?

You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.

No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.

What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?

From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss 

We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris

*****

From: judgecriss
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.

What else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."

Not to review them. But to sign them.

Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.

Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.

Filling in the blanks

June 25, 2008 

"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009... 

I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed." 

-- Galveston County Assistant District Attorney Joel H. Bennett

That's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.

I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets harassing citizens policing. But what's the judge's excuse for signing a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit. Somehow I'm not thinking that would cut it if a district judge were trying to decide whether or not to allow the police to enter someone's house to search for evidence of a crime. In fact, I know it wouldn't. But, then again, we're only talking about a misdemeanor. What's the big freaking deal, anyway?

I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?

January 2, 2011 

"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem... 

"With the assistance of the following agencies the effort was a success:

• UTMB

• Galveston County District Attorney's Office

• District Judge Lonnie Cox

• District Judge Susan Criss

• County Judge John Grady

• The Galveston Police Department Command Staff

• The Galveston Daily News

• Fox 26 News

• Texas Highway Patrol

"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success. 

-- Chad Powers, Galveston Police Department

What could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.

Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?

Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.

Should I bring a pen along?

Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.

Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.

June 27, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.

Hmmm... how might that conversation go?

Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"

Judge: "Ordering a blood draw on a misdemeanor case? That's insane."


Prosecutor: "I'll take that as a no. Next!"

August 31, 2011 - 

"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws." 

-- Galveston County District Attorney Jack Roady (group e-mail)

Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.

An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.

And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.

Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

It's all about that filthy lucre

If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state. 

In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.

Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.

First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.  

Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.

A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.

More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.

Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.

DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.

Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.

The judge has ceased to be neutral and detached. The judge has become part of "the team."

Damn the Bill of Rights, keep those greenbacks coming.

It's only coercive if I say it's coercive

co·erce

 [koh-urs]

–verb (used with object), -erced, -erc·ing.

1.

to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.

2.

to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.

3.

to dominate or control, especially by exploiting fear, anxiety, etc.: The state is based on successfully coercing the individual.

Supposedly the idea behind implied consent is that when someone applies for a driver's license, he is giving his consent to provide a breath or blood sample upon demand should a law enforcement officer request one following an arrest for driving while intoxicated. But that same motorist has a choice when, and if, that moment actually arrives. A motorist is "rewarded" for blowing over a .08 by having his license suspended for a shorter time period than someone who decides he'd rather not blow into the little black box.

Consent must be given voluntarily by the motorist. The police are not allowed to coerce him into blowing. To prevent the appearance of coercion, officers are required to read a piece of paper with a warning from Section 724.015 of the Texas Transportation Code -- the so-called statutory warning. Should the officer fail to keep to the script he runs the risk of a judge throwing out a breath test result.

Of course what one person perceives as coercive may very well differ from what someone in law enforcement, for instance, might find coercive. The statutory warning informs the motorist that should he choose not to blow into the breath machine, that refusal might be used in a subsequent criminal prosecution. So much for innocent unless proven guilty, huh? And anyone who's ever tried a DWI has heard the prosecutor tell the jury that their client had the opportunity to prove his innocence but chose not to - because he knew he was guilty.

So much for lack of coercion.

Then we had the evolution of Screw the Constitution No Refusal Weekends in which prosecutors lined up judges who were more than willing to rubber stamp search warrants authorizing forced blood draws on misdemeanor cases. They even found judges who were willing to make a complete and total mockery of the Fourth Amendment by accepting "affidavits" by fax - so they wouldn't be inconvenienced by actually having to listen to an officer recite why a blood draw was so necessary in a case that began with a routine traffic stop.

But I digress...

The publicized threat of being strapped down and having a needle jabbed in one's arm just because Officer Bob smelled alcohol on your breath might be seen as having a coercive effect on motorists' decisions whether or not to blow in the black box. In fact, the Texas Municipal Courts Education Center told judges who attended a seminar that

"If a suspect consents to a blood test in the face of a threatened warrant, the voluntariness of the consent may be an issue."

And that's from an organization whose mission is to assist municipal court judges, court staff and prosecutors in screwing defendants "maintaining professional competence."

The Texas Legislature, however, doesn't view it the same way. In its neverending quest to put everyone in the state under court supervision, our brilliant lawmakers in Austin decided to amend the statutory warning provided to anyone arrested on suspicion of driving while intoxicated to include the threat of a forced blood draw as a means of coercing motorists to blow.

SB 1787, which goes into effect on September 1, 2011, adds the following language to the statutory warning:

If the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.

State Sen. Dan Patrick (R-Houston) authored a bill because he was worried that some judge might find the threat of a forced blood draw to be coercive. Apparently in Mr. Patrick's world, a coercive statement's not coercive if the government says it isn't. This comes from a man who claims to be a champion of limited government. Mr. Patrick's idea of limited government seems to be limited to how much the state can tax or spend but not how much the government can intrude when it comes to law enforcement.

Shooting oneself in the foot

Over the weekend, my wife and I drove up to Huntsville State Park to do some hiking for our anniversary. Along the way we stopped in Willis so she could get her caffeine fix in at Starbucks. As we drove along the feeder to enter the Kroger parking lot off FM 1087 I couldn't help but notice a car parked on the shoulder with a state trooper sitting behind it. The people in the car were standing off to the side and the doors were open.

It was about 9:30 on a Sunday morning and someone had the police tearing through their car. Under no circumstances could that be considered a good way to start the day.

After I dropped my wife in front of the Kroger's, I circled back around to the feeder to see what was happening. The trunk lid was open and a trooper was putting the spare tire back in. It was only getting worse.

I drove back around and picked up my wife. Not being one to pass up a train wreck, I drove back around to the feeder. The doors of the car were still open. Two women were standing in the grass and a third was standing with her hands cuffed behind her back at the side of the police car.

Now I have no idea what was going on. I don't know who the people involved are. I don't know why the car was stopped. I have no idea what was found in the car or why (at least) one woman was under arrest.

I do know, however, that the driver, for some unknown reason, gave her consent to the trooper's request to search her car. My only question was Why?

Why would anyone allow the police to search their car without a warrant? Why would anyone with anything illegal in the car allow the police to search it?

I can guarantee you that the officer didn't have probable cause to search that car. And how do I know, you might ask. I know because he asked to search the car.

But wait, you say, if he arrested the driver he can search the passenger compartment since the inside of the car is considered within the reach of the driver. Maybe so, but everyone was standing outside the car when it was being tossed and no one was in handcuffs. No arrest, no search.

Besides, even if the officer could search the passenger compartment incident to an arrest (just try to find that phrase in the Fourth Amendment), he can't pop open the trunk absent a warrant or consent.

If the officer had probable cause to believe that something of an illegal nature was in the car, he would have arrested the driver (and passengers) and filled out a search warrant application and affidavit. He would have presented it to a judge and, once the judge signed it, searched the car.

Law books and computer data bases are full of cases in which illegal items were found as the result of a police officer's request to search a car. In the vast majority of those cases the officer was operating on a hunch. If the officer had probable cause to search the car, he damn sure had probable cause to arrest the driver or passengers. But in (too) many of those cases, the defendant sealed his fate by allowing the officer to search his car without a warrant.

There is nothing to be gained in allowing the police to search the car. There's no award for hanging yourself by letting the police find your stash of goodies in the trunk or under the hood. The prosecutor isn't going to dump the case just because someone let the cops toss their car.

Who cares if you piss off the officer? Call the officer's bluff and, as Nancy Reagan would advise, just say no.

A man's home is NOT his castle

Why do I rail so much against the emasculation of the 4th Amendment when it comes to people accused of driving while intoxicated? What's the big deal about lowering the standard to stop a car? So what if a drunk driver isn't afforded the opportunity to consult with an attorney before being asked to blow into the state's black box? What's the big deal about "No Refusal" Weekends?


It's because every time we make an exception to the 4th Amendment, we lose just a little bit more of the freedom  we fought so hard to obtain in the 1770's.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - 4th Amendment

Note that there is nothing in the text of the 4th Amendment that says "except when..." or "unless..." or "under exigent circumstances." The courts have been only too happy over the years to turn the 4th Amendment into a piece of swiss cheese - so riddled with holes and exceptions that its protections are meaningless.

When we turn a blind eye to the 4th Amendment in a DWI case we make it easier for the next judge to take away the rights of someone accused of some other crime. When we allow the police to stop a car because the officer has "reasonable suspicion" that some criminal activity might be afoot - then we allow an officer to arrest a motorist and search his car with less evidence to support his decision that would be required to obtain a search warrant. You allow a judge to sign a warrant authorizing a forced blood draw when the arresting officer can't point to anything that the driver did that was illegal - he just had a hunch.

Last week the Indiana Supreme Court said to hell with your right to be safe inside your home from unwarranted government intrusion when it found a homeowner had no right to use force to prevent the police from entering his house unlawfully.

Just think about that for a second.

Let it soak in.

If you happen to live in Indiana, you are no longer secure in your house from "unreasonable searches and seizures." You have just lost your reasonable right to privacy in your home. In Indiana, the 4th Amendment is but a meaningless sentence on an old piece of paper. It means absolutely nothing.

This decision comes from the folks who brought you that canard about "liberal" judges and their activism in "expanding" constitutional rights and privileges. It comes from the same folks who told you that judges should honor precedent. It comes from the same folks who told you that judges shouldn't make law from the bench.

Your reliance on politicians who told you they were for limited government has been betrayed.

Do you really want sobriety checkpoints on the roads? Do you really want government mandated ignition interlock devices on cars? Do you really want the government to have access to your text messages, voice mails and e-mails through your cell phone or internet provider?

Are you ready for an era in which the police will be allowed to stop a motorist for no reason whatsoever?

As Billy Joel once sang:

This is what you wanted; ain't you proud?
'Cause everybody loves you now.

See also:

"Resistance is futile," Simple Justice (May 14, 2011)
"Indiana cops get the keys to the castle," Defending People (May 15, 2011)

Hanging on the telephone

It is far from unusual in these days of Gestapo-like tactics by the police against motorists accused of driving while intoxicated for an officer to fax an application for a warrant to draw blood without ever appearing before the judge.

On "No Refusal Weekends," many volunteer prosecutors judges will sit at home by a fax machine waiting for the "fill-in-the-blank" warrant applications to be faxed over, signed and faxed back without a care in the world. Interestingly enough, while a municipal court will not accept an appearance bond or appeal bond if it is faxed (because they have to be notarized), a judge may gladly accept a faxed affidavit in support of a search warrant -- if the purpose is to tie someone down and draw their blood.

In order to avoid the testy situation of lying before a notary or a judge in quest of a search warrant, police officers have taken to signing their affidavits within the presence of another police officer. Since no oath was administered, the officer requesting the search warrant did not commit perjury and the courts don't care.

That was, until the Tyler Court of Appeals handed down its opinion in Aylor v. State, No. 12-09-00460-CR (Tex.App.--Tyler, 2011). In Aylor, a police officer stopped a motorist and, believing he was driving while intoxicated, requested a blood sample. When Mr. Aylor declined the request, the officer called the station and told his sergeant what had happened. The sergeant then filled out an affidavit based on the arresting officer's statements and faxed it to a judge who administered an oath over the phone. That's right -- over the phone. Nevermind the fact that the judge could not ascertain with any certainty who was on the other end of the line. Forget that the judge had no way to know from the caller's appearance whether he was telling the truth of not. In other words, throw all logic out the window.

The trial court was not troubled by this. The appellate court, on the other hand, was a bit troubled by it.

The current state of Texas law then, as alluded to in the above quoted dicta by the court of criminal appeals in Smith, is that a physical, personal appearance is necessary, either before the magistrate, or before someone who is qualified to administer oaths. See Lowry, 297 S.W.2d at 850-51 (citing Sullivan, 83 S.W. at 422-23); Hughes, No. 07-10-00096-CR, 2011 WL 561497, at *6-7.  Therefore, we conclude that an affiant must be physically present in front of the magistrate or officer authorized to administer oaths when swearing to the facts in his affidavit to support a search warrant.  We further conclude that where the oath was taken solely over the telephone and not physically in front of any officer authorized to administer oaths, the presence requirement is not met.  In the instant case, the oath was administered by the magistrate to Sergeant Seyer by telephone.  The record does not show that Sergeant Seyer took the oath in front of some other officer authorized to administer oaths, and the affidavit is not notarized.  Moreover, the State did not argue at the trial court, and does not argue here, that the arrest or any evidence seized during the search was obtained by the officers acting in good faith reliance on the warrant.  See Swenson v. State, 2010 WL 924124, at *2-4.  Consequently, we cannot conclude from the record before us that the presence requirement was satisfied or that compliance with the presence requirement was excused.  Accordingly, we hold that the trial court erred in concluding that the warrant was valid and in overruling Appellant’s motion to suppress.

What's troubling about the Court's opinion, however, is the statement that the State never argued that the officers were acting "in good faith" when executing the search warrant. Was the Court saying that all would have been forgiven if the officer had testified that he was acting on the belief that the warrant was valid?

If that is the case, Aylor doesn't provide relief so much as a playbook for the police on how to obtain illegal search warrants and execute them by using the magic words good faith.