Clay v. Texas (Original)Annotate this Case
The issue before the Supreme Court in this case was whether a law-enforcement officer seeking to obtain a search warrant, under Article 18.01 of the Texas Code of Criminal Procedure, must swear out the affidavit in support of that warrant in the physical presence of the magistrate or whether he may do so telephonically. On June 29, 2008, the appellant was arrested and charged with misdemeanor driving while intoxicated. The stipulated facts established that the appellant was stopped by State Trooper J. Ortega for traveling 80 miles per hour in a 70 mile-per-hour zone. When probable cause to suspect the appellant of driving while intoxicated arose in the course of the stop, Ortega placed appellant under arrest and requested that she provide a breath specimen for testing. The appellant refused, so Ortega filled out an affidavit for a search warrant to obtain a specimen of her blood. Ortega then called Hill County Court at Law Judge A. Lee Harris on the telephone. Ortega and Harris "each recognized the other's voice[,]" and in the course of the telephone conversation, Ortega "swore to and signed" the search warrant affidavit. The trial court denied the appellant's motion to suppress. On appeal, appellant argued that the search warrant was invalid because the affidavit in support of the warrant was not sworn to in the physical presence of the magistrate, as she contends is required by Article 18.01 of the Code of Criminal Procedure. The Court of Appeals disagreed, holding that "a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant." The Supreme Court concluded that because Ortega and Judge Harris recognized one another's voices on the telephone at the time Ortega swore out his warrant affidavit, it was properly solemnized. And because Ortega reduced the affidavit to writing and faxed it to Judge Harris for filing, the basis for probable cause was properly memorialized. Under these circumstances, the Court held that Article 18.01(b)'s requirement of a "sworn affidavit" was satisfied.