{"id":61379,"date":"2025-06-30T11:28:24","date_gmt":"2025-06-30T16:28:24","guid":{"rendered":"https:\/\/fourthamendment.com\/?p=61379"},"modified":"2025-06-30T11:28:24","modified_gmt":"2025-06-30T16:28:24","slug":"tx5-state-has-to-prove-sw-application-properly-sworn-to-no-gfe-where-it-wasnt-pled","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=61379","title":{"rendered":"TX5: State has to prove SW application properly sworn to; no GFE where it wasn’t pled"},"content":{"rendered":"\n

Where it couldn\u2019t be established that the officer swore to a notary or clerk when applying for a search warrant for blood, the motion to suppress was properly granted. The state doesn\u2019t get the benefit of the good faith exception because didn\u2019t argue it below. State v. Shelton<\/a>, 2025 Tex. App. LEXIS 4502 (Tex. App. \u2013 Dallas June 26, 2025):<\/p>\n\n\n\n\n\n\n\n

In a probable-cause affidavit, the police officer is asking that the government be allowed to invade someone’s constitutional right to privacy. Wheeler, 616 S.W.3d at 864. It is not too much to ask that the officer swear before another that he is telling the truth about the need for such an intrusion. Id. We conclude that because the officer failed to swear an oath, verbally or otherwise, before anyone, the affidavit was unsworn and therefore invalid. See Hardridge, 2025 WL 1687988, at *2; State v. Hodges, 595 S.W.3d 303, 307 (Tex. App.\u2014Amarillo 2020, pet. ref’d). We do not consider whether the good-faith exception applies in this case because the State did not argue the exception to the trial judge and thus has not raised its applicability on appeal. See State v. Elrod, 395 S.W.3d 869, 883 (Tex. App.\u2014Austin 2013, no pet.) (appellate court may affirm trial court’s decision on legal theory not presented to trial court, but it may not reverse trial court’s decision on legal theory not presented to trial court). The trial court did not err in granting appellee’s motion to suppress.<\/p>\n","protected":false},"excerpt":{"rendered":"

Where it couldn\u2019t be established that the officer swore to a notary or clerk when applying for a search warrant for blood, the motion to suppress was properly granted. The state doesn\u2019t get the benefit of the good faith exception … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104,91],"tags":[],"class_list":["post-61379","post","type-post","status-publish","format-standard","hentry","category-burden-of-pleading","category-neutral-and-detached-magistrate"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61379","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=61379"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61379\/revisions"}],"predecessor-version":[{"id":61380,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/61379\/revisions\/61380"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=61379"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=61379"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=61379"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}