State v. Nix

1

The State of Texas, Appellant v. Sarah Leeann Nix, Appellee

No. 03-21-00123-CR

Court of Appeals of Texas, Third District, Austin

March 29, 2023

Do Not Publish

FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY NO. 2017CR2590 THE HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING.

Before Chief Justice Byrne, Justices Kelly and Smith

MEMORANDUM OPINION

Darlene Byrne, Chief Justice.

Appellee Sarah Leeann Nix, was arrested and charged with Driving While Intoxicated (DWI). See Tex. Penal Code § 49.04. The State appeals the trial court's order granting Nix's motion to suppress.^[1] We reverse the trial court's order and remand for further proceedings.

BACKGROUND

Deputy Rafael Pinilla arrested Nix for DWI and obtained a search warrant to seize a blood sample, which was signed by the trial-court judge who later granted Nix's motion to suppress. As relevant here, Nix moved to suppress the blood analysis on the grounds that the search warrant was not supported by a sworn affidavit because no oath had been administered to the officer. A visiting judge held an evidentiary hearing and heard the parties' arguments about the validity of the search warrant. The State argued that the search warrant was valid because although no oral oath was given, the officer signed the probable cause affidavit in front of a notary public, which constituted a written oath. The State argued alternatively that even if the officer was not under oath, the good-faith exception to the warrant requirement applied. The visiting judge denied Nix's motion to suppress based on Clay v. State 391 S.W.3d 94, 103-04 (Tex. Crim. App. 2013) (holding that oath for search warrant affidavit does not have to be sworn to in physical presence of magistrate).

Nix moved for reconsideration of the denial of her motion to suppress. During the pendency of Nix's motion, the Court of Criminal Appeals issued its ruling in Wheeler v State, 616 S.W.3d 858 (Tex. Crim. App. 2021). The trial court judge, based on the parties' arguments, Wheeler, and the record of the earlier suppression hearing, reconsidered the court's prior ruling and granted Nix's motion to suppress. Upon the State's request, the trial court entered the following findings of fact and conclusions of law:

FINDINGS OF FACT

• On March 12th, 2016, Deputy Rafael Pinilla, of the Comal County Sheriff's Department, stopped, detained and arrested Defendant, Sarah Nix, for the offense of Driving While Intoxicated (DWI).

• Ms. Nix refused to voluntarily provide a specimen [of] blood or breath upon Deputy Pinilla's request following her arrest.

• As such, Deputy Pinilla transported Ms. Nix to a Christus Santa Rosa Hospital for the purpose of obtaining a blood sample via search warrant.

• State's Exhibit No. 1 was entered into evidence and is a document purported to be a Search Warrant Affidavit.

• As evidenced by State's Exhibit No. 2, which is an audio recording of the events captured on the body microphone linked to the Deputy's dash camera in his patrol car Deputy Pinilla asked if there was a notary available to sign State's Exhibit No. 1 in support of the issuance of a blood search warrant.

• Moments later, a female voice is heard on State's Exhibit No. 2 (later identified as notary public Nanette Marie Scranton).

• Ms. Scranton can be heard on State's Exhibit No. 2 asking Deputy Pinilla for his identification and the two of them can be heard engaging in limited small talk, including the date.

• At no time did notary public Scranton administer an oath, or anything resembling an oath.

• Deputy Pinilla can then be heard on the phone with this Court (Hon. Stephens), informing the Court he is seeking authorization for a blood search warrant.

• Deputy Pinilla can be heard repeating a number, which he testified was a number provided by this Court to fax State's Exhibit No. 1.

• This Court administered no oath.

• Deputy Pinilla testified no oath was ever administered to him by anyone regarding the assertions or contents of State's Exhibit No. 1 in support of a blood search warrant.

• Deputy Pinilla can then be heard asking for assistance using the fax machine and according to his previous testimony he then faxed State's Exhibit No. 1 to this Court without any further conversation.

• The video recording of the event introduced into evidence is devoid of any reference in any way to any oath or affirmation.

• No evidence was presented that an oath was administered and no written attestation suggesting an oath was administered was submitted into evidence.

• In applying for the search warrant, Deputy Pinilla used preprinted, fill-in-the-blank/check-the-box forms for State's Exhibit No. 1.

• Deputy Pinilla never swore to State's Exhibit No. 1 before anyone. He merely signed the document on the line immediately above the jurat labeled "affiant," filled in the blanks for the date in the jurat, and gave it to the notary, who then signed the document without oath or affirmation.

• Deputy Pinilla electronically submitted State's Exhibit No. 1 to this Magistrate.

• Not realizing that State's Exhibit No. 1 was in fact, unsworn, this Magistrate signed the jurat and the search warrant.

• Deputy Pinilla executed the warrant.

CONCLUSIONS OF LAW

The Court recognizes the recent holding in Wheeler v. State, [616 S.W.3d 858, (Tex. Crim. App. 2021)] as controlling authority in this matter.

One of the most fundamental tenets of search and seizure law is that a search warrant must be supported by a probable-cause affidavit that is sworn "by oath or affirmation." Tex. Const. art. I, § 9 & U.S. Const. [] amend. [IV]. This oath or affirmation requirement is so critical that our Legislature codified it numerous times in the Texas Code of Criminal Procedure. . . . Thus, it is well established under Texas law that a search warrant cannot properly issue without a probable-cause affidavit made under oath. "An oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully." Vaughn v. State, [] 177 S.W.2d 59, 60 ([Tex. Crim. App.] 1943). "The difference between an affidavit and an oath is that an affidavit consists of a statement of fact, which is sworn to as the truth, while an oath is a pledge." Id. (citing 39 Am. Jur. 494). Texas law has always required that the oath must be made "before" or in the presence of another to convey the solemnity and critical nature of being truthful. See Clay v. State, 391 S.W.3d 94, 98-99 (Tex. Crim. App. 2013) ("[T]his Court has held for the better part of a hundred years that, before a written statement in support of a search warrant will constitute a 'sworn affidavit,' the necessary oath must be administered 'before' a magistrate or other qualified officer.").

The Court further recognizes it is without question that good faith reliance pursuant to the codified Texas exclusionary rule does not overcome both the United States and Texas Constitution requirements that search warrant probable cause affidavits must be supported by oath or affirmation. "Statutory enactment does not take precedence over a Constitutional requirement[.]" Tex[as] Bd. of Pardons & Paroles v. Miller, 590 S.W.2d 142, 142 (Tex. Crim. App. 1979).

However, under the Texas Exclusionary Rule, evidence obtained in violation of any provision of state or federal law cannot be used at trial in a criminal prosecution. The Court expressly acknowledges that there is, however, an exception to this exclusionary rule for evidence "obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." Tex. Code Crim. Proc. art. 38.23(b). The exception plainly requires objective, rather than subjective, good-faith reliance upon a search warrant. In applying this objective standard to the facts here, this requirement was not met because no objectively-reasonable officer would execute a search warrant knowing that it was procured through an unsworn probable-cause affidavit. Accordingly, the good-faith exception does not apply and the statutory exclusionary rule prohibits admission of the blood evidence that was obtained in violation of Texas law.

In determining whether Deputy Pinilla acted in good faith under the good-faith exception, the Court examined whether a reasonable police officer in Deputy Pinilla's position would have believed the warrant was valid.

Wheeler expressly cites McClintock as solidifying that it is the objective reasonableness of the officer's conduct, based on the facts and circumstances he knows at the time, that dictates whether the statutory good-faith exception applies. The officer's subjective intentions or beliefs about whether his conduct was lawful or reasonable are irrelevant under the statutory terms.

In making such an analysis, this Court specifically took into account the credibility of the witness, as well as his education, training and experience.

Applying the statute's requirement of objective good faith to the situation at hand, I conclude that no objectively-reasonable police officer would have believed that the warrant here was valid when it was knowingly obtained by his own unsworn probable-cause affidavit. In fact, it was wholly unreasonable for any officer in Deputy Pinilla's shoes to believe that there was no need to attest to a probable-cause affidavit when: (1) the oath requirement has been a constitutional mandate for all law enforcement officers for well over a century; (2) the Texas Legislature has codified and repeatedly emphasized the oath requirement in the Code of Criminal Procedure; (3) the Court of Criminal Appeals' opinions have consistently held that the oath requirement is critical to obtaining a search warrant; (4) law enforcement officers are taught

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