State v. Scott Ellery Crawford Jr. ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00289-CR
THE STATE OF TEXAS STATE
V.
SCOTT ELLERY CRAWFORD JR. APPELLEE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1344184
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CONCURRING OPINION
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I write separately to express my concern that the trial and appellate bench
and bar need guidance from the Texas Court of Criminal Appeals. Although
there are certainly problems with the warrant and supporting affidavit in this case,
the legislature has enacted article 38.23(b) of the code of criminal procedure,
known as the “good faith exception.” 1 The Texas Court of Criminal Appeals
instructs us that article 38.23(b) means that
[e]vidence obtained by a police officer acting in good faith reliance
upon a warrant based upon a magistrate’s determination of probable
cause should not be rendered inadmissible due to a defect found in
the warrant subsequent to its execution. 2
It appears from the plain meaning of the statute and case law dealing with
evidence obtained pursuant to a defective warrant that no matter how bad the
supporting affidavit or how infirm the warrant, the evidence will not be
suppressed. The reasoning is that, absent a Franks 3 violation, there is no
misconduct to be discouraged by suppression. 4 Does this mean that although an
officer limits the search request in the supporting affidavit, a magistrate may
authorize a much more expansive search? If the affidavit contains no indication
why the source of the information forming the basis of the belief of criminal
activity is reliable, once the magistrate signs the warrant, is the sufficiency of the
affidavit irrelevant? Suppose the supporting affidavit contains no jurat? We
might avoid these questions by saying, “A magistrate would not issue a warrant
based on such a deficient affidavit,” or “A magistrate would be too careful to
1
Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
2
Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim. App. 1997).
3
Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978).
4
Dunn, 951 S.W.2d at 482.
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issue a warrant that exceeded the scope of the request.” But everybody slips up,
even a conscientious magistrate.
As I understand the state of the law in Texas, once the warrant issues, the
only challenge that will lie is a Franks challenge. Surely lawyers are not being
put in the position of being able to challenge the admissibility of evidence
obtained pursuant to a defective warrant only by attacking the integrity of the
officer who swore to the affidavit. Say it ain’t so.
With these concerns, I concur in the majority opinion.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 21, 2015
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