TX3: YFZ raid: No standing to object to witness interviews during execution of warrant

In the YFZ Texas raid, a defendant convicted of sex with a minor had no standing to contest the questioning of minors during the raid on the 1,691 acre property and the structure by structure search. Emack v. State, 354 S.W.3d 828 (Tex. App.—Austin August 26, 2011):

As the court of criminal appeals noted in Kothe, it is critical to identify the precise government conduct being objected to, because this often will be determinative of the standing issue. Id. at 60. In his points of error complaining of the DFPS interviews, appellant contends that the interviews, and the information they revealed, were the fruit of unlawful conduct by DFPS employees, to whom he argues the Fourth Amendment applies. See Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002). He contends that DFPS agents violated the Fourth Amendment, and also article I, section 9 and article 38.23, by making a false statement of material fact and using unlawfully obtained evidence in their petition for order in aid of investigation, and by thereafter exceeding the scope of their authority under the order. These contentions are not based on any assertion that appellant was unlawfully detained on April 3, and they do require a determination as to whether or not appellant was unlawfully detained in order to be resolved.

The order in aid of investigation directed the “parent or person responsible” for the care of Sarah Jessop Barlow and her infant daughter to “immediately allow an authorized representative of the Department of Family and Protective Services to enter … [the YFZ Ranch] to interview and examine the children ….” Appellant did not claim to be the parent or person responsible for the care of any of the children interviewed by the DFPS caseworkers. In his affidavit in support of standing, appellant affirmed that he was a resident of the YFZ Ranch and a member of the FLDS, that his personal residence was searched and his personal property was seized, and that FLDS premises were searched and church property was seized. Appellant’s challenges to the manner in which the DFPS obtained the order in aid of investigation and to the scope of the interviews conducted by its caseworkers under the order are not based on any allegation that the conduct complained of violated appellant’s asserted privacy interests or that the interviews were a fruit of a violation of those interests.