STATE v. HARDRIDGE (2025)

OPINION

The State of Texas appeals the trial court's order granting appellee Dennis Anthony Hardridge's motion to suppress evidence obtained pursuant to a search warrant supported by an unsworn affidavit. The State argues that the trial court erred because the affidavit supporting the search warrant was adequately solemnized to meet the oath requirement. Alternatively, the State argues that, even if the affidavit did not satisfy the oath requirement, the good-faith exception applies to avoid exclusion of the improperly obtained evidence. We conclude that the trial court did not err in granting the motion to suppress and affirm the trial court's order.

Background

On September 11, 2021, Forney Police Department Officer Luke Mansell received a dispatch call reporting a reckless driver. The officer located the subject vehicle and initiated a traffic stop. After observing signs of possible intoxication and conducting a field sobriety test, the officer arrested the driver, Hardridge, for driving while intoxicated. After Hardridge refused to voluntarily provide a breath or blood specimen, the officer applied for a search warrant permitting a blood draw.

In support of his warrant application, the officer prepared a probable-cause affidavit. As drafted, the affidavit stated that the officer had “personally appeared” “[b]efore ․ the undersigned authority” and had been “duly sworn upon oath.” But no such authority was identified in the affidavit. After reciting the facts supporting his contention for probable cause, the officer signed his name and badge number. The affidavit form included a jurat with a signature line for a notary public, but the officer never had his affidavit notarized. Instead, he completed the jurat himself and left the signature line for the notary public blank. As completed, the jurat stated that the officer had “subscribed and sworn to” the affidavit “before” the (non-existent) notary public. No other qualified officer signed or acknowledged the affidavit.

The officer transmitted the unnotarized affidavit to Judge Jessica Spain of the Forney Municipal Court of Record No. 1 of Kaufman County, Texas. The judge issued a search warrant for Hardridge's blood based on the officer's affidavit. The judge's warrant repeated that the officer's affidavit had been given under oath. The officer executed the judge's warrant by transporting Hardridge to a local hospital and having a sample of his blood drawn.

After being charged with driving while intoxicated, Hardridge moved to suppress the search warrant and all derivative evidence. The trial court held a hearing and requested supplemental briefing from the parties. After the parties filed their respective briefs, the trial court granted the motion to suppress. The State timely appealed.

Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Hardin, 664 S.W.3d 867, 871 (Tex. Crim. App. 2022). Under this standard, we afford almost complete deference to the trial court's determination of historical facts and credibility when supported by the record. Id. When the trial court makes explicit fact findings, as the trial court did in this case, “we determine whether the evidence (viewed in the light most favorable to the trial court's ruling) supports these fact findings.” Id. at 872. However, we review legal conclusions and the legal significance of the facts found by the trial court de novo. Id.; Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017). In this appeal, the relevant facts are undisputed, so we will review de novo the trial court's conclusions about the search warrant's validity.

Discussion

I. The unsworn search warrant affidavit was defective and invalid.

In its first issue, the State argues that the officer's affidavit was essentially sworn under oath because, even though he did not recite a verbal oath, he filled out the affidavit in a manner indicating he was swearing to it. We conclude, however, that because the officer failed to swear an oath, verbally or otherwise, before anyone, the affidavit was unsworn and, therefore, invalid.

A. The sworn oath requirement for warrant affidavits

“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.’ ” Wheeler v. State, 616 S.W.3d 858, 863 (Tex. Crim. App. 2021) (quoting Tex. Const. art. I, § 9). “This oath or affirmation requirement is so critical that our Legislature codified it numerous times in the Texas Code of Criminal Procedure.” Id. (citing six provisions of the Code, including art. 18.01(b), “A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.”). “[I]t is well established under Texas law that a search warrant cannot properly issue without a probable-cause affidavit made under oath.” Id. at 864.

“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.” Id. (quoting Vaughn v. State, 177 S.W.2d 59, 60 (Tex. Crim. App. 1943)). “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.” Id. (quoting Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)). Indeed, the Court of Criminal Appeals “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.” Clay, 391 S.W.3d. at 99 & n.18 (collecting cases dating back to 1929).

The Court of Criminal Appeals recognizes that “certain types of procedural irregularities may not affect the validity of a search warrant,” but it has been “unwavering in emphasizing that the oath requirement is essential.” Wheeler, 616 S.W.3d at 864. “Thus, an officer's failure to take the oath and swear to the facts of his probable-cause affidavit renders defective any search warrant issued on the basis of the unsworn probable-cause affidavit.” Id. Two cases exemplify the requirement that a valid oath must be sworn before another person.

In Smith v. State, the Court of Criminal Appeals addressed whether a search warrant was defective where the affiant swore an oath before the magistrate that the facts within the affidavit were true, but he failed to sign the affidavit. 207 S.W.3d 787, 788 (Tex. Crim. App. 2006). The Court expressly held that “the failure to sign a search warrant affidavit does not, by itself, 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.” Id. The Court went on to observe that “it is that act of swearing, not the signature itself, that is essential,” and that the law should retain some flexibility in the face of technological advances and not foreclose such innovations by the requirement of a signature “if the officer's oath can be memorialized by other, equally satisfactory, means.” Id. at 792–93.

In Clay v. State, the Court of Criminal Appeals extended Smith’s reasoning when it addressed whether an investigating officer may apply for a search warrant by swearing out a supporting affidavit over the telephone. 391 S.W.3d at 97. The Court revisited Smith and emphasized that Smith had held that a “sworn affidavit” need not contain the affiant's signature “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.’ ” Id. at 97–99 (quoting Smith, 207 S.W.3d at 792) (emphasis added by Clay). The Court concluded that a properly sworn affidavit does not necessarily require that the oath always be administered in the corporal presence of the magistrate or other qualified officer, “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.” Id. at 103. Accordingly, whether the circumstances of an individual case will suffice to satisfy the solemnizing function of the oath requirement will be resolved on a case-by-case basis. See id. at 104. Under Clay’s facts, the investigating officer's affidavit was properly solemnized because the officer and the judge who issued the search warrant recognized each other's voices on the telephone when the officer swore out his warrant affidavit. Id.

In short, in both Smith and Clay, even though the affiant failed to sign the affidavit before a magistrate, the warrant was valid because the affiant actually swore an oath before a magistrate in a manner sufficiently conveying the solemnity and critical nature of being truthful. See Clay, 391 S.W.3d at 96 (the affiant failed to sign in the physical presence of the magistrate but swore an oath to the magistrate over the telephone with each recognizing the other's voice); Smith, 207 S.W.3d at 788 (the affiant failed to sign at all but swore an oath in the physical presence of the magistrate).

B. Application

This case presents the opposite scenario: the affiant signed the affidavit but failed to swear an oath before a magistrate or other qualified officer in any manner, let alone an adequately solemn one. The State concedes that the officer never gave a “verbal oath” or “formal oath” swearing to the truthfulness of the affidavit, and the evidence shows that the officer did not give an oath in any other manner. The officer testified that he simply typed up his search-warrant affidavit and sent it to the judge to review. He did not recall if he even spoke with the judge.

The State argues that, despite these apparent infirmities, the affidavit was nevertheless “sworn to” because it was “adequately solemnized” by other means. Specifically, the State argues that the affidavit was validly solemnized because the officer subjectively believed, based on the affidavit's oath-affirming language, that he had sworn an oath and that lying in the affidavit would expose him to criminal liability.

We disagree that the oath requirement was substantively satisfied. While the purpose of the oath-affirming language in the preamble and jurat is to memorialize the fact that the affiant swore an oath before a qualified officer, it is the act of swearing before a qualified officer, not the oath-affirming language, that is essential. See Clay, 391 S.W.3d at 98; Smith, 207 S.W.3d at 792. The Court of Criminal Appeals has never held that an affidavit's oath-affirming language—by itself—satisfies the essential oath requirement.¹ And we decline to hold so ourselves, especially in a case like this where the oath-affirming language is generic (“being duly sworn upon oath”) and does not even specifically attest to the truthfulness of the representations made. See Wheeler v. State, 573 S.W.3d 437, 443 (Tex. App.—Fort Worth 2019) (“We cannot conclude that the oath recitations in the affidavit's and warrant's preambles or in the jurat were sufficient to consider the affidavit sworn.”), aff'd, 616 S.W.3d 858 (Tex. Crim. App. 2021); cf. Bahm v. State, 219 S.W.3d 391, 393–94 (Tex. Crim. App. 2007) (in lieu of a sworn declaration or affidavit, an inmate's unsworn declaration must include the “vital phrase” that it is subscribed as true “under penalty of perjury”).

Instead, the Court of Criminal Appeals has specifically explained that “to convey the solemnity and critical nature of being truthful,” Texas law requires that “the oath must be made ‘before’ or in the presence of another.” Wheeler, 616 S.W.3d at 864. Having failed to take an oath and swear to the facts of his probable-cause affidavit before a qualified officer, the officer in this case failed to meet the essential oath requirement. See id. Therefore, his affidavit is defective and invalid. See id.

We conclude that the affidavit was not validly sworn under oath. We overrule the State's first issue.

II. The good-faith exception does not apply.

In its second issue, the State argues that the good-faith exception applies to avoid exclusion of the improperly obtained evidence because the officer executed the search warrant believing that his affidavit had been sworn, and the warrant itself states it was supported by a sworn affidavit. We conclude that the State has not shown that the officer acted in “objective good faith reliance” because the officer's subjective beliefs are irrelevant, and because he could not in objective good faith rely on the warrant when an objectively reasonable officer would have personal knowledge it was not supported by a sworn affidavit. We therefore conclude that the good-faith exception is not a basis to reverse the trial court's exclusion of the evidence.

A. Texas's statutory exclusionary rule and good-faith exception

Generally, improperly obtained evidence is inadmissible and subject to exclusion under Code of Criminal Procedure Article 38.23(a). See Tex. Code Crim. Proc. Ann. art. 38.23(a). That statute provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Id. Subsection (b) provides an exception, known as the good-faith exception:

It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Id. art. 38.23(b). No one disputes that the judge in this case is a neutral magistrate or that the warrant was based on probable cause, so the only question is whether the officer acted in objective good faith reliance upon the search warrant.

To determine whether the good-faith exception applies, a court focuses on what an “objectively reasonable officer” would have believed about the warrant's validity at the time of its execution. Wheeler, 616 S.W.3d at 865 (citing McClintock v. State, 541 S.W.3d 63, 73 (Tex. Crim. App. 2017)). “[I]t 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.” Id. at 866. To be objectively reasonable, the officer's conduct must be “ ‘close enough to the line of validity’ that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct ․ notwithstanding the underlying constitutional violation.” Id. at 865–66.

The facts of Wheeler are nearly identical to the present case. In applying for a search warrant, the officer used a preprinted form for the probable-cause affidavit; the affidavit included a recital that the officer had been duly sworn upon oath; the affidavit included a jurat that stated “subscribed and sworn to before me,” a notary public or other qualified official; the officer never swore to the affidavit before anyone; the officer merely signed the affidavit on a line immediately above the jurat labeled “affiant”; the officer left the signature line for the jurat blank; the officer electronically submitted the affidavit to a magistrate who issued a search warrant despite the fact that the affidavit was unsworn; and the officer executed the warrant. See 616 S.W.3d at 861. However, in Wheeler, the officer understood that the facts in his affidavit were not properly sworn; he just believed that an oath was not required pursuant to his police department policy. See id. at 861–62.

B. Application

The State argues that, to the extent the officer was wrong about the technical requirements of how to swear an oath, his mistake is close enough to the line of validity for the good-faith exception to apply. The State further argues that it was objectively reasonable for the officer to rely on the judge's warrant, which expressly stated that the affidavit had been made under oath. Wheeler dictates that we reject both arguments.²

1. The officer's subjective belief is not objective good faith.

The State argues that Wheeler rested on the conclusion that “no objectively-reasonable police officer would have believed that the warrant [t]here was valid when it was knowingly obtained by an unsworn probable-cause affidavit.” See id. at 866 (emphasis added by the State). Here, the trial court found that the officer believed that typing his name in the line preceding a preprinted statement that he was “duly sworn upon oath,” typing his name in the line following a preprinted statement that the document was “subscribed and sworn,” and signing the affidavit on the “Affiant” line were sufficient to swear to the contents of the affidavit under oath. Because the officer believed that his affidavit was properly sworn, the State concludes, his mistake is close enough to the line of validity that the good-faith exception applies.

This argument does not withstand scrutiny. Foremost, the officer's “subjective intentions or beliefs about whether his conduct was lawful or reasonable are irrelevant.” See id. The officer's subjective belief that his affidavit was properly sworn, when it objectively was not, is not a fact or circumstance known to the officer at the time upon which to measure the objective reasonableness of his conduct. See id. The trial court made a finding that the officer knew and was trained that he was required to swear to the contents of affidavits for search warrants under oath. Further, an objectively reasonable officer knows the proper procedure to swear to an affidavit's validity given that:

(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 of Texas's] opinions have consistently held that the oath requirement is critical to obtaining a search warrant; [and] (4) law enforcement officers are taught in the police academy that they must swear to the truthfulness of their probable-cause affidavits before a magistrate or other qualified person ․

See id. at 866–67. “[G]iven how fundamental the oath requirement is, no objectively-reasonable officer could have believed that an oath was not required to support his probable-cause affidavit.” Id. at 867. Therefore, asking this Court to assume that an objectively reasonable officer does not know how to meet the oath requirement undercuts a foundational premise of what it means to be an objectively reasonable officer. See id. It also undercuts the facts and circumstances the trial court found were known to the officer at the time, given that the affidavit and the warrant “both refer to the oath requirement and state that the documents were ‘verified’ and/or ‘sworn before’ a magistrate [or other qualified official].” See id. at 867.

2. The officer cannot in good faith rely on the warrant's recitation.

The State's other argument that it is not the officer's place to second guess the judge's warrant is similarly ill reasoned. The State explains that “[a]n objectively reasonable officer would believe the search warrant in question was valid if the officer ․ did not know the proper procedure to swear to its validity.”

As discussed above, an objectively reasonable officer knows that a search warrant must be based upon a sworn affidavit. Therefore, the officer was not entitled to rely on the warrant's recitation that it was based on a sworn affidavit because he knew he had not sworn an oath before anyone, even if he subjectively believed such a failure did not constitute a significant defect. Wheeler addressed this point, explaining that

as a general matter, a law enforcement officer should be permitted to rely on a search warrant signed by a neutral magistrate and supported by probable cause without having to “second guess” the magistrate's determination. That principle, however, cannot apply to situations such as the instant one where an objectively-reasonable officer would have personal knowledge of a significant defect in the process used to obtain the warrant (here, the absence of an affidavit sworn under oath). Under those circumstances, even if the magistrate then mistakenly approves the warrant, the objectively-reasonable officer would still know of the underlying defect that ultimately renders the resulting warrant tainted. Such an officer is not being made to “second guess” the magistrate's approval of a warrant that he honestly and reasonably believes to be free of defects; rather, he simply is not permitted to rely on a warrant that he knows is tainted, regardless of the magistrate's approval. Thus, the instant situation is distinguishable from those in which the officer is wholly innocent and, unbeknownst to him, some flaw in the warrant process is discovered after the fact.

Id. at 867 n.12.

Here, the officer failed to swear an oath before anyone, violating one of the most fundamental tenets of search-and-seizure law requiring a search warrant be “supported by a probable-cause affidavit that is sworn by oath.” See id. at 863 (citing Tex. Const. art. I, § 9). A similarly situated, objectively reasonable officer would have personal knowledge of the affidavit's significant defect and the warrant's resulting taint. See id. at 867 & n.12. “The complete absence of this indispensable constitutional and statutory requirement is nowhere close to the line of valid law enforcement conduct that would bring this situation within the ambit of the good-faith exception.” See id. at 867. The State, therefore, failed to show that the officer was “acting in objective good faith reliance” on the warrant's recitation. See Crim. Proc. art. 38.23(b).

We conclude that the good-faith exception does not apply. We overrule the State's second issue.

Conclusion

Based on the foregoing, we affirm the trial court's March 18, 2024 order granting Hardridge's motion to suppress.

FOOTNOTES

1.   In Wheeler, the Court held that “[t]here is no question that the officer's failure to take the oath and swear to his probable-cause affidavit was improper” but expressly noted that it had not granted review on the issue of whether “an affidavit [is] considered sworn if the affiant testifies that he did not swear to the affidavit in front of a person authorized to administer oaths, but the affidavit itself contains oath-affirming language.” See 616 S.W.3d at 860, 863 n.7.

2.   As to the second argument on good-faith reliance on a facially valid warrant, the State cites in support Wheeler’s dissenting opinion, 616 S.W.3d at 868 (Harvey, J., dissenting), and Longoria v. State, No. 03-16-00804-CR, 2018 WL 5289537, at *6 (Tex. App.—Austin Oct. 25, 2018, no pet.) (mem. op., not designated for publication). But, as further explained herein, Wheeler’s majority opinion disagreed with the dissenting opinion's analysis and necessarily cast doubt on Longoria’s conclusion as to this issue. See 616 S.W.3d at 866–67. We are bound by Wheeler’s majority opinion.

Opinion by Justice Miskel