IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0579-12

SARA KATHERINE CLAY, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

HILL COUNTY

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and

WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined. MEYERS,

J., filed a dissenting opinion.

O P I N I O N

Must a law-enforcement officer seeking to obtain a search warrant, under Article

18.01 of the Texas Code of Criminal Procedure, swear out the affidavit in support of that

1

warrant in the physical presence of the magistrate or may he do so telephonically, as

1

TEX. CODE CRIM. PROC. art. 18.01.
Clay — 2

happened in this case? We granted the appellant’s petition for discretionary review to

address that question. We hold that the warrant affidavit in this particular case was properly

sworn out, and we affirm the judgment of the court of appeals.

FACTS AND PROCEDURAL POSTURE

On June 29, 2008, the appellant was arrested and charged with misdemeanor driving

while intoxicated. She filed a pre-trial motion to suppress evidence obtained as a result of

2

the execution of a search warrant to draw her blood for forensic testing. The parties

proceeded on stipulated facts, without conducting an evidentiary hearing. The stipulated

facts establish 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 the 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. It is specifically

stipulated that Ortega did not sign the warrant affidavit “in the physical presence of Judge

Harris” and that “Judge Harris did not physically witness” Ortega sign the warrant affidavit.

2

TEX. PENAL CODE § 49.04.
Clay — 3

Ortega faxed the warrant affidavit to Judge Harris, who signed and dated the jurat. Judge

Harris then signed a search warrant authorizing the blood draw and faxed it back to Ortega,

who had the appellant’s blood drawn accordingly.

3

The trial court denied the appellant’s motion to suppress. The appellant pled guilty

pursuant to a negotiated plea agreement, and her punishment was assessed at three days’

incarceration in the county jail (with three days’ credit for time already served) and a fine of

$1,500. The trial court certified her right to appeal. On appeal, the 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 Tenth Court of Appeals disagreed, holding that “a face-toface 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.” At least one other court of appeals

4

has reached the opposite result on comparable facts, albeit in an unpublished opinion. We

5

granted the appellant’s petition for discretionary review to resolve this issue.

6

3

The record does not reveal the results of the forensic testing on the blood.

4

Clay v. State, 382 S.W.3d 465, 470 (Tex. App.—Waco 2012).

5

Id. at *1 (citing Aylor v. State, 2011 WL 1659887 (No. 12-09-00460-CR, Tex. App.—Tyler,

delivered April 29, 2011) (not designated for publication)).

6

TEX. R. APP. P. 66.3(a) & (b).
Clay — 4

THE ISSUE

By statute, an evidentiary search warrant may issue in Texas for the extraction of

blood for forensic testing. The issuance of such a search warrant is governed by, inter alia,

7

Article 18.01(b) of the Code of Criminal Procedure, which provides:

(b) No search warrant shall issue for any purpose in this state unless

sufficient facts are first presented to satisfy the issuing magistrate that probable

cause does in fact exist for its issuance. A sworn affidavit setting forth

substantial facts establishing probable cause shall be filed in every instance in

which a search warrant is requested. Except as provided by [another Article

not pertinent here], the affidavit is public information if executed, and the

magistrate’s clerk shall make a copy of the affidavit available for public

inspection in the clerk’s office during normal business hours.

8

Whether an investigating officer may apply for a search warrant by swearing out a supporting

affidavit over the telephone is not specifically addressed in Article 18.01(b), or in any other

provision of the Code of Criminal Procedure. We are therefore confronted with a case of

first impression—just as we were half a dozen years ago in Smith v. State.

9

7

See TEX.CODECRIM. PROC. art. 18.02(10) (“A search warrant may be issued to search for and

seize . . . items . . . constituting evidence of an offense or constituting evidence tending to show that

a particular person committed an offense[.]”); Gentry v. State, 640 S.W.2d 899, 902-03 (Tex. Crim.

App. 1982) (construing Article 18.02(10)’s allusion to “items” to be sufficiently broad as to cover

blood extraction). Since the date of the appellant’s arrest, the Legislature has made it explicit that

“[a]ny magistrate who is an attorney licensed by this state may issue a search warrant under Article

18.02(10) to collect a blood specimen from a person who . . . is arrested for an offense under Section

49.04 . . ., Penal Code; and . . . refuses to submit to a breath or blood alcohol test.” Acts 2009, 81

st

Leg., ch. 1348, § 5, p. 4263, eff. Sept. 1, 2009.

8

TEX. CODE CRIM. PROC. art. 18.01(b).

9

207 S.W.3d 787 (Tex. Crim. App. 2006).
Clay — 5

In Smith, the officer seeking a search warrant swore out his probable cause affidavit

in the physical presence of the magistrate, but, although he was under oath when he did so,

he neglected to actually sign the affidavit. The question before us was whether either the

10

Fourth Amendment to the United States Constitution or Article 18.01(b) requires that an

affidavit in support of a search warrant include the signature of the affiant. With respect to

Article 18.01(b), we observed that the purpose of the signature on an affidavit is to

memorialize the fact that the affiant took an oath. While an oath is both constitutionally

11

and statutorily indispensable, we held, a signature memorializing that the affiant swore out

the affidavit is not, and the affidavit may still suffice to support the issuance of a search

warrant if the record indicates that “the affidavit was solemnized by other means.” We

12

expressly held “that the failure to sign the warrant affidavit does not invalidate the warrant

if other evidence proves that the affiant personally swore to the truth of the facts in the

affidavit before the issuing magistrate.” We went on to observe,

13

Although the affiant’s signature on an affidavit serves as an important

memorialization of the officer’s act of swearing before the magistrate, it is that

act of swearing, not the signature itself, that is essential. It is important, too,

that the law retain some flexibility in the face of technological advances. For

10

Id. at 789.

11

Id. at 791.

12

Id.

13

Id. at 792.
Clay — 6

example, the federal courts and some state courts, now permit telephonic

search warrants, and one can foresee the day in which search warrants might

be obtained via e-mail or a recorded video conference with a magistrate

located many miles away. In a state as large as Texas, such innovations should

not be foreclosed by the requirement of a signed affidavit if the officer’s oath

can be memorialized by other, equally satisfactory, means. We leave those

potential future changes to the Texas Legislature, but we should not stand in

the way of the future by declaring that all affidavits, which are properly sworn

to but unsigned, are necessarily invalid.

14

Not surprisingly, both the appellant and the State find sufficient latitude in this passage from

Smith to suggest support for their respective positions in this case.

For its part, the State relies upon Smith’s emphasis on the need to construe the statute

with sufficient “flexibility” to account for “technological advances” and pointsto our express

allusion to those jurisdictions that have legislated specific procedures governing telephonic

application for search warrants. The appellant counters that such innovations are properly

left to the legislative branch, not the judicial—that, while it would be a proper exercise of our

judicial function for us to hold that telephonic search warrants do not offend the Fourth

Amendment (or, for that matter, Article I, Section 9 of the Texas Constitution), we would

have no occasion to do so unless and until the Texas Legislature should authorize them, as

14

Id. at 792-93 (footnotes omitted). See id. at 792 n.24 (“Telephonic warrants are permitted

under the Federal Rules of Criminal Procedure. FED.R.CRIM.P. 41(d)(3). * * * Several states also

allow telephonic warrants, including Alaska, Arizona, California, Colorado, Delaware, Idaho, Illinois,

Minnesota, Nebraska, and South Dakota.”). We note that in 2011, since our opinion in Smith, the

federal authority to issue telephonic warrants was re-codified in Rule 4.1, allowing a magistrate judge

to “consider information communicated by telephone or other reliable electronic means when . . .

deciding whether to issue a warrant[.]” FED. R. CRIM. P. 4.1(a).
Clay — 7

have most of the other jurisdictions to which we alluded in Smith.

15

We agree with the appellant that whether telephonic search warrants are permissible

in Texas depends upon the parameters of the statute as it currently reads. Our job is to

faithfully construe statutory language, never to enlarge upon it. We cannot, simply for the

16

sake of keeping pace with the technology, stretch the meaning of the statute beyond the

bounds of what its language will tolerate. Article 18.01(b) requires a “sworn affidavit.” In

Smith, we held that a “sworn affidavit” need not contain the affiant’s signature before it may

support a search warrant, so long as there is other evidence to show “that the affiant

personally swore to the truth of the facts in the affidavit before the issuing magistrate.”

17

And indeed, this 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. In the name of

18

15

See note 14, ante.

16

E.g., Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991).

17

Smith, supra, at 792 (emphasis added).

18

As it originally appeared in the 1966 Code of Criminal Procedure, Article 18.01 did not refer

to a sworn affidavit in support of a search warrant, but, like its predecessors in earlier codes, it spoke

of the necessity of “a sworn complaint.” Acts 1965, 59 Leg., ch. 722, § 1, p. 382, eff. Jan. 1, 1966.

th

The first reference to the necessity of a “sworn affidavit” appears in Article 18.01(b) as a conforming

amendment to the 1974 Penal Code. Acts 1973, 63 Leg., ch. 399, § 2(E), p. 982, eff. Jan. 1, 1974.

rd

Nevertheless, even before the 1974 amendment, we frequently spoke in our case law of the requisites

of an “affidavit” presented in support of a search warrant. See, e.g., Moore v. State, 112 Tex. Crim.

142, 15 S.W.2d 617 (1929) (search warrant held invalid because, although Penal Code at the time
Clay — 8

flexibility, can it reasonably be said that an oath administered over the telephone satisfies the

requirement that, to be a “sworn affidavit” for purposes of Article 18.01(b), a writing must

be sworn to “personally . . . before the issuing magistrate” or other qualified oath-giver? As

presently written, does Article 18.01(b) allow for the granting of a search warrant based upon

an affidavit that is sworn to over the telephone, inasmuch as the one thing we held in Smith

to be “essential,” namely, the oath, is not administered in the corporal presence of the

19

magistrate or other official authorized to administer it?

required affidavits from two credible people to justify search of a private residence, one of the two

affiants failed to actually “appear” before, and could not have signed his affidavit in the presence of,

the issuing magistrate); Alexander v. State, 123 Tex. Crim. 65, 67, 57 S.W.2d 157, 158 (1932) (while

treating a complaint in support of a search warrant as synonymous with an affidavit and holding that

the “failure to date an affidavit was not fatal” to the warrant, we observed that neither our Penal Code

nor Code of Criminal Procedure defined “affidavit,” but that a civil statute “defines an affidavit as a

statement in writing of a fact or facts, signed by the party making it, and sworn to before some officer

authorized to administer oaths”); Vaughn v. State, 146 Tex. Crim. 586, 590-91, 177 S.W.2d 59, 61

(1944) (opinion on reh’g) (while holding that a search warrant was acceptable based on the affidavit

of an affiant who did not formally take an oath but did sign the affidavit in the magistrate’s presence,

and “it was [his] understanding that [he] was taking an oath[,]” we observed that “[i]t is conclusive .

. . that an affidavit must be made before an officer authorized to take the same before a search warrant

may issue”); Hernandez v. State, 158 Tex. Crim. 296, 300, 255 S.W.2d 219, 222 (1953) (opinion on

reh’g) (quoting Alexander’s definition of “affidavit” to hold that failure of jurat to name county is not

fatal to the search warrant); King v. State, 167 Tex. Crim. 440, 442, 320 S.W.2d 677, 678 (1959)

(“The affidavit not appearing regular on its face and in the absence of a showing that it was sworn to

before a person authorized by law to administer it, the admission of the testimony showing the search

under the search warrant based upon said affidavit and the results thereof was error.”); Greer v. State,

437 S.W.2d 558, 562 (Tex. Crim. App. 1969) (“It is well established that an affidavit or complaint for

a search warrant must be made before an officer authorized to take the same before a search warrant

may issue.”); O’Quinn v. State, 462 S.W.2d 583, 586-87 (Tex. Crim. App. 1970) (“It is the

established rule in Texas that an affidavit or complaint for a search warrant must be made before an

officer authorized to administer the same before a search warrant may issue.”).

19

Smith, supra, at 792.
Clay — 9

ANALYSIS

The statutory requirement of a “sworn affidavit” serves two important functions: to

solemnize and to memorialize. That the affidavit must be sworn to fulfills the constitutional

requirement that it be executed under oath or affirmation so as “to impress upon the swearing

individual an appropriate sense of obligation to tell the truth.” That it must be in writing

20

serves the additional objective that the sum total of the information actually provided to the

issuing magistrate in support of his probable cause determination be memorialized in some

enduring way to facilitate later judicial review. Article 18.01(b)’s requirement that the

21

20

Wayne R. LaFave, 2 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT §

4.3(e), at 521 (4 ed. 2004) (quoting State v. Tye, 636 N.W.2d 473, 478 (Wis. 2001)). As we also

th

explained in Smith, “[t]he 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.” 207 S.W.3d at 790.

21

Although Article 18.01(b) does, the Fourth Amendment does not require that the basis for

probable cause necessarily be in writing. See id. § 4.3(c), at 514 (“[I]t seems clear that a prior written

record of the facts which show probable cause is not constitutionally required.”). The requirement that

the probable cause determination be memorialized in some enduring fashion, however, assures that the

search will not be later justified by information that was never called to the attention of the

constitutionally mandated neutral magistrate. “[A]n otherwise insufficient [warrant] affidavit cannot

be rehabilitated by testimony concerning information possessed by the affiant when he sought the

warrant but not disclosed to the issuing magistrate. * * * A contrary rule would, of course, render the

warrant requirements of the Fourth Amendment meaningless.” Whiteley v. Warden of Wyoming

Penitentiary, 401 U.S. 560, 565 n.8 (1971). As Professor LaFave has observed,

one important function of the warrant requirement is to facilitate review of probable

cause and avoid justification for a search . . . by facts or evidence turned up in the

course of [its] execution. That function is not being adequately served when search

warrants may be upheld solely upon after-the-fact representations of the police as to

what they told the magistrate.

LaFave, supra, § 4.3(b), at 511 (footnotes and internal quotation marks omitted).
Clay — 10

memorialization take the form of a written affidavit was satisfied in this case by the fact that

Ortega drafted a written affidavit and faxed it to Judge Harris, so that the issuing magistrate

had a document to be “filed” as required. On the particular facts of this case, then, the only

22

remaining question is whether Ortega’s written affidavit was properly “sworn” to, in

contemplation of Article 18.01(b), when Judge Harris administered the oath to Ortega over

the telephone rather than face to face.

There is apparently no Fourth Amendment impediment to administering the oath or

affirmation telephonically. The Federal Rules of Criminal Procedure have authorized

telephonic applications for a search warrant since 1977, and the federal courts long ago

rejected the specific argument “that for constitutional purposes an oath or affirmation is

invalid merely because it is taken over the telephone[,]” elaborating that “[t]he moral,

religious and legal significance of the undertaking remains the same whether the oath taker

and the witness communicate face-to-face or over the telephone.” Following the federal

23

lead, many states now provide for telephonic search warrant applications by statute or rule,

24

22

See TEX. CODE CRIM. PROC. art. 18.01(b) (“A sworn affidavit . . . shall be filed in every

instance in which a search warrant is requested.”).

23

United States v. Turner, 558 F.2d 46, 50 (2 Cir. 1977).

nd

24

See ALASKA STAT. § 12.35.015(a) (“A judicial officer may issue a search warrant upon the

sworn oral testimony of a person communicated by telephone or other appropriate means, or sworn

affidavit transmitted by facsimile machine.”); ARIZ. REV. STAT. § 13-3914 (“C. In lieu of, or in

addition to, a written affidavit, or affidavits, as provided in subsection A, the magistrate may take an

oral statement under oath which shall be recorded on tape, wire or other comparable method. This
Clay — 11

and many of those provisions expressly permit the obligatory oath to be administered over

statement may be given in person to the magistrate or by telephone, radio or other means of electronic

communication.”); ARK. CODE ANN. § 16-82-201(a) (GENERAL RULE. If the circumstances make

it reasonable to dispense with a written affidavit, any judicial officer of this state may issue a warrant

based upon sworn oral testimony communicated by telephone or other appropriate means.”); CAL.

PENAL CODE § 817(c)(2)(A) (“In lieu of the [sworn statement made in writing] required in subdivision

(b), the magistrate may take an oral statement under oath under . . . the following conditions: . . . The

oath is made using telephone and facsimile transmission equipment . . . under all of the following

conditions: The oath is made during a telephone conversation with the magistrate . . . .”); COLO. R.

CRIM. P. 41(c)(3) (“A warrant, signed affidavit, and accompanying documents may be transmitted by

electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge,

who may act upon the transmitted documents as if they were originals.”); 725 ILL.COMP. STAT. 5/108-

4(b)(1) (General Rule. When the offense in connection with which a search warrant is sought

constitutes terrorism or any related offense . . . and if the circumstances make it reasonable to dispense,

in whole or in part, with a written affidavit, a judge may issue a warrant based upon sworn testimony

communicated by telephone or other appropriate means, including facsimile transmission.”); MICH.

COMP. LAWS § 780.651(2)(a) & (b) (“An affidavit for a search warrant may be made by any electronic

or electromagnetic means of communication, including by facsimile or over a computer network, if

both of the following occur: (a) The judge or district court magistrate orally administers the oath or

affirmation to an applicant for a search warrant who submits an affidavit under this subsection . . . .”);

NEB. REV. STAT. § 29-814.03 (“A search warrant may be issued under section 29-814.05 pursuant to

a telephone statement made to a magistrate or judge in accordance with the procedures set forth in this

section.”); N.J. CT. R. 3:5-3(b) (“A Superior Court judge may issue a search warrant upon sworn oral

testimony of an applicant who is not physically present. Such sworn oral testimony may be

communicated to the judge by telephone, radio or other means of electronic communication.”); N.M.

R. CRIM. P. DIST. CT. § 5-211 (“F. Methods for requesting warrant. A request for a search warrant

may be made using any of the following methods: . . . (3) by transmission of the affidavit and proposed

search warrant required under Subparagraph (1) of this paragraph to the judge by telephone, facsimile,

electronic mail, or other reliable electronic means.”); N.Y.CRIM.PROC. § 690.36 (“An oral application

for a search warrant may be communicated to a judge by telephone, radio or other means of electronic

communication.”); OR. REV. STAT. § 133.545(6)(a) (“[T]he proposed warrant and the affidavit may

be sent to the court by facsimile transmission or any similar electronic transmission that delivers a

complete printable image of the signed affidavit and proposed warrant.”); PA.R.CRIM. P. 203(A) (“In

the discretion of the issuing authority, advanced communication technology may be used to submit a

search warrant application and affidavit(s) and to issue a search warrant.”); S.D. CODIFIED LAWS §

23A-35-5 (“The sworn oral testimony may be communicated to the magistrate by telephone or other

appropriate means and shall be recorded and transcribed.”); WASH. CRIM. R. 2.3(c) (“There must be

an affidavit . . . or sworn testimony establishing the grounds for issuing the warrant. The sworn

statement may be an electronically recorded telephonic statement.”); WISC. STAT. § 968.12 (3)(a) (“A

search warrant may be based upon sworn oral testimony communicated to the judge by telephone,

radio or other means of electronic communication, under the procedure prescribed in thissubsection.”).
Clay — 12

the telephone. At least one state’s highest appellate court has refused to suppress evidence

25

based upon a warrant application that was made, and the oath administered, orally over the

telephone—even in the face of a statute that requires a written affidavit. Another state’s

26

highest court has held, in light of express statutory language requiring an affidavit to be

25

See ALASKA STAT. § 12.35.015(b) (“A judicial officer shall place under oath each person

whose oral testimony forms a basis of the application and each person applying for the search warrant.

The judicial officer shall record the proceeding by using a voice recording device.”); ARK.CODEANN.

§ 16-82-201(d)(1) (“When a caller informs the judicial officer that the purpose of the call is to request

a warrant, the judicial officer shall immediately place under oath each person whose testimony forms

a basis for the application and each person applying for that warrant.”); CAL. PENAL CODE §

817(c)(2)(A) (“The oath is made during a telephone conversation with the magistrate . . . .”); COLO.

R. CRIM. P. 41(c)(3) (“A warrant affidavit may be sworn to or affirmed by administration of the oath

over the telephone by the judge.”); 725 ILCS 5/108-4(b)(4) (“When a caller informs the judge that the

purpose of the call is to request a warrant, the judge shall immediately place under oath each person

whose testimony forms a basis of the application and each person applying for that warrant.”); MICH.

COMP. LAWS 780.651(5) (“If an oath or affirmation is orally administered by electronic or

electromagnetic means of communication under this section, the oath or affirmation is considered to

be administered before the judge or district court magistrate.”); NEB. REV. STAT. § 29-814.03 (“The

magistrate or judge shall call the officer at the number provided and shall place the officer under oath

and take his or her statement. * * * For purposes of sections 29–814.01 to 29-814.06, a telephonic

statement authorized by this section shall be considered to be an affidavit.”); N.M. R. CRIM. P. DIST.

CT. § 5-211 (“G. Testimony, oaths, remote transmissions and signatures. (1) Before ruling on a

request for a warrant the judge may require the affiant to appear . . . telephonically . . . and may

examine under oath the affiant and any witness the affiant may produce[.]”); N.Y. CRIM. PROC. §

690.36 (“Upon being advised that an oral application for a search warrant is being made, a judge shall

place under oath the applicant and any other person providing information in support of the

application.”); OR. REV. STAT. § 133.545(6)(a) (“[T]he affiant may swear to the affidavit by

telephone.”); PA.R.CRIM. P. 203(C) (“issuing authority” may “orally administer an oath to an affiant”

via “simultaneous audio-visual communication”); WISC. STAT. § 968.12(3)(d) (“When a caller

informs the judge that the purpose of the call is to request a warrant, the judge shall place under oath

each person whose testimony forms a basis of the application and each person applying for the

warrant.”).

26

State v. Lindsey, 473 N.W.2d 857 (Minn. 1991); See MINN. STAT. 626.09 (providing that the

magistrate “shall take the affidavits in writing, and cause them to be subscribed to by the party or

parties making them”).
Clay — 13

“sworn to before” the issuing magistrate, that the telephonic application for a search warrant

was invalid, but the court nevertheless refused to suppress the fruit of the search because the

police officers acted in good faith. Yet another highest state court has recently held,

27

however, in construing a statute that explicitly requires an “affidavit sworn to before the

magistrate,” that an oath administered over the telephone “complies with the literal terms of

the statute such that there was no defect in the warrant.” Our statute neither facially

28

provides for, nor explicitly prohibits, administration of the oath telephonically.

We do not think that it impermissibly enlarges upon the statutory language to construe

Article 18.01(b) to permit the administration of the oath over the telephone—at least under

the circumstances of the present case. Article 18.01(b) simply requires a “sworn affidavit.”

While our case law has historically defined an affidavit to be a writing sworn to “before” the

oath-administering authority, most of those cases pre-date the advent of our most modern

29

electronic means of communication, and none expressly addresses the question whether an

oath administered over the telephone qualifies as an oath “before” the magistrate. As the

27

White v. State, 842 So.2d 565 (Miss. 2003); See MISS. CODE. § 41-29-157(a)(2) (“A search

warrant shall issue only upon an affidavit of a person having knowledge or information of the facts

alleged, sworn to before the judge or justice court judge and establishing the grounds for issuing the

warrant.”).

28

State v. Herring, 692 S.E.2d 490, 496-97 (S.C. 2009). See S.C. CODE § 17-13-140 (“A

warrant issued hereunder shall be issued only upon an affidavit sworn to before the magistrate,

municipal judicial officer, or judge of a court of record establishing the grounds for the warrant.”).

29

See note 18, ante.
Clay — 14

State points out, the last edition of Black’s Law Dictionary to have included a definition of

30

the word “before” provides: “In the presence of; under the official purview of; as in a

magistrate’sjurat,‘before me personally appeared,’ etc.” This definition suggests that there

31

may exist circumstances under which a search warrant affiant could validly present himself

“before” an issuing magistrate—that is to say, “under the official purview of” that issuing

magistrate—without the necessity of presenting himself corporally.

The numerous states that now provide for telephonic application for search warrants

certainly assume as much. Several of the state regulatory schemes emphasize the importance

of the magistrate’s ability to verify the identity of the telephonic warrant applicant and/or his

affiants for purposes of administering the oath. The obvious intent behind such a

32

requirement is to maximize the solemnizing efficacy of the telephonic oath to compensate

for the absence of face-to-face administration. An officer who adequately identifies himself

30

State’s Brief at 8-9.

31

BLACK’S LAW DICTIONARY 154 (6 ed. 1990). Subsequent editions have omitted any

th

definition of the bare word “before.”

32

See N.J. CT. R. 3:5-3(b) (“Subsequent to taking the oath, the applicant must identify himself

or herself, specify the purpose of the request and disclose the basis of his or her information.”); N.M.

R. CRIM. P. DIST. CT. § 5-211G.(2) (“If the judge administers an oath or affirmation remotely to the

affiant or any witnesses the affiant may produce, the means used must be designed to ensure that the

judge confirms the identity of the affiant and any witness the affiant may produce.”); PA. R. CRIM. P.

203(C) (“Immediately prior to submitting a search warrant application and affidavit to an issuing

authority using advanced communication technology, the affiant must personally communicate with

the issuing authority by any device which, at a minimum, allows for simultaneous audio-visual

communication. During the communication, the issuing authority shall verify the identity of the

affiant, and orally administer an oath to the affiant.”).
Clay — 15

to an issuing magistrate over the telephone and who then deliberately swears out a false

affidavit would almost certainly subject himself to prosecution for perjury. In any event,

33

he would surely perceive the gravity of the enterprise and “an appropriate sense of obligation

to tell the truth.”

34

That is the posture of the present case. As the court of appeals observed,

In this instance, the personal familiarity of the trooper and the judge with each

other’s voice provides very strong indicia of truthfulness, trustworthiness, and

reliability so as to call upon Trooper Ortega’s “sense of moral duty to tell the

truth and instill in him a sense of seriousness and responsibility.”

35

We agree. We see no compelling reason to construe the “sworn affidavit” contemplated by

Article 18.01(b) necessarily to require that the oath always be administered in the corporal

presence of the magistrate, so long as sufficient care is taken in the individual case to

preserve the same or an equivalent solemnizing function to that which corporal presence

accomplishes. Only the Legislature is free to amend or supplement Article 18.01(b) to

specifically and comprehensively regulate the process of obtaining search warrants by

telephonic or other electronic means, as so many other states have now done. Until that

36

time, the question of whether the circumstances of an individual telephonic warrant

33

TEX. PENAL CODE § 37.02.

34

LaFave, supra, at 521.

35

Clay, supra, at 470 (quoting Smith, supra, at 790).

36

The 83 Legislature convened on January 8, 2013.

rd
Clay — 16

application will suffice to satisfy the solemnizing function of the oath requirement under

Article 18.01(b) will have to be resolved on a case-by-case basis.

CONCLUSION

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, we hold that Article

18.01(b)’s requirement of a “sworn affidavit” was satisfied. Accordingly, we affirm the

judgment of the court of appeals.

DELIVERED: January 9, 2013

PUBLISH