When Do a Police Officer’s “Misrepresentations” on a Warrant Application Matter?

November 2nd, 2021 by Tad Nelson in Criminal Defense, Understanding Texas Law

Before the police may lawfully search a person’s property without the owner’s consent, an officer must first obtain a search warrant from a magistrate. The process of obtaining a warrant typically involves the officer filing an affidavit with the court explaining their reasons for requesting the warrant. If the magistrate finds “probable cause” that evidence of a crime will be found based on the representations made in the affidavit, they will issue the warrant.

CCA Finds No Constitutional Violation in Home Invasion Prosecution

So what happens if the officer makes false statements or misrepresentations in their affidavit? Does that invalidate the search warrant? In Texas, appellate courts have held that if the defendant can prove there was a “material misstatement that was made intentionally or knowingly or with reckless disregard for the truth,” then the warrant can be held invalid if the remainder of the affidavit was insufficient to support probable cause. This is, however, a high bar for a defendant to meet, and Texas judges tend to disfavor invalidating a warrant after the fact.

Indeed, the Texas Court of Criminal Appeals (CCA) recently rejected one such attempt. In Diaz v. State, two men attempted a home invasion of what turned out to be the residence of a Houston police officer. The officer shot one of the men in the leg and both of the intruders fled.

Four days later, police arrested the defendant in this case on an unrelated open warrant. At the time of that arrest, officers seized three cell phones from the defendant. Four years later, the Harris County district attorney applied for a search warrant for the phones.

A sergeant with the Harris County sheriff’s office filed the affidavit in support of the warrant. This affidavit would ultimately lead to the case before the CCA. To make a long story short, the sergeant said in the affidavit he “received an anonymous tip” identifying one of the men involved in the home invasion. The tipster provided two phone numbers for the man, which the sergeant said he then asked the DEA to check against its database of people known to be involved in illegal drug activity. This ultimately led the sergeant to identify the defendant as his suspect.

The defendant pointed out, however, that the person who contacted the sergeant was not an “anonymous tipster” but rather a “confidential informant” (CI) for the DEA. Furthermore, it was the DEA that ran the phone numbers provided by the CI and relayed that information to the sergeant, not the other way around.

The CCA ultimately decided that neither of these misrepresentations was “material” to the affidavit. First, the CCA noted that “an anonymous tipster is not treated less skeptically than a CI” for purposes of determining credibility. As for “who prompted the phone-number check”–the DEA or the Harris County sergeant–the CCA said that was “immaterial” to a “probable cause finding.”

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Many criminal cases succeed or fail based on the admissibility of evidence. That is why it is important to work with an experienced Houston criminal defense attorney who can represent you in challenging the actions of police and prosecutors at trial. Contact the Law Offices of Tad Nelson & Associates today if you need to speak with a lawyer right away.

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