Judge grants suppression of DWI evidence over dispute about officer’s oath for search warrant

LUBBOCK, Texas (KCBD) - A DWI case in Lubbock is moving forward, but a County Court at Law judge has agreed that some evidence was improperly obtained.

In August of 2018 an officer with the Texas Tech Police Department sought to obtain a search warrant for blood evidence after a suspected drunk driver refused to allow it to be drawn voluntarily.

Criminal Defense Lawyer Kris Espino argues that the officer submitted an affidavit to the judge without being put under oath or sworn properly. He said search warrants in DWI cases do not require an officer to go personally before a judge.

“One officer writes the affidavit and the other places him under oath and then signs in a separate place on the affidavit that he administered that oath,” Espino said. “Then they email it to the judge, the judge reviews it and based on the merits writes the warrant. In this case as I’m watching, I see him type the affidavit and then the other officer, the ranking one, comes over looks it over once or twice and hits the send button. He never administered the oath.”

Both officers signed the affidavit, one as the affiant and the other as witness. Espino argues the affiant officer must be verbally placed under oath and swear that the contents of the affidavit are true and correct.

“The law is very clear,” Espino said. “The Fourth Amendment literally says, ‘No warrant shall issue except upon oath or affirmation, establishing probable cause.’ The important thing is the oath, not the signature. That’s the way the case law is written and that’s the way the judge saw it, as well.”

The ranking officer in this case was questioned in a pre-trial hearing. According to transcripts, the officer admitted there was no verbal oath given. However, he agreed with prosecutors that he understood the legal consequences of lying on the form and that his signature indicated to a judge the facts are true.

In a response to the defense’s motion, prosecutors requested the judge consider the purpose of the oath was fulfilled and the affidavit is valid. They went on to say the record and case law supports that position.

However, the judge granted the defense’s request to suppress evidence obtained through the warrant.

In testimony, the officer also told the judge they were not trained to verbally issue an oath when countersigning affidavits for search warrants.

Texas Tech University declined to comment for the story, citing the ongoing case.

The Lubbock County District Attorney’s Office also declined for the same reason. However, the Office said the case would be reviewed to decide what the next steps would be. The case has not gone to trial.

Copyright 2019 KCBD. All rights reserved.