Humpty Dumpty Hervey: Standard Written English = “Hyper-technical”

This was the only reference to time in the search-warrant affidavit:

In the past 72 hours, a confidential informant advised the Affiant that Chris was seen in possession of a large amount of methamphetamine at his residence and business.

The trial court and the Amarillo Court of Appeals held that the warrant was invalid because it contained no indication of when Chris had meth.

According to the Court of Criminal Appeals in McClain (PDF), though,

The court of appeals violated the prohibition on “hypertechnical” review of a warrant affidavit when it strictly applied rules of grammar and syntax in its analysis.

What’s the plain meaning of the sentence? That the CI told the officer recently that at some unspecified point Chris was seen in possession of meth. Following the rules of standard written English, this is the only way the sentence can be interpreted. If the officer had meant what the Court of Criminal Appeals concluded, he could have said, “A confidential informant advised the Affiant that in the past 72 hours Chris was seen….” The sentence as the officer wrote it contains no information regarding when Chris possessed meth; assuming that the officer meant what he said is not hypertechnical but commonsense.

But according to the court:

While the plain meaning of the aforementioned statement, read literally, fails to clearly indicate exactly when the informant observed Appellee in possession of the methamphetamine, we believe that the magistrate could have reasonably inferred that the informant observed Appellee with the methamphetamine within the past 72 hours.

(There’s glory for you!)

The court’s reasoning is that we should cut cops some slack in writing search-warrant affidavits because the Fourth Amendment favors warranted searches over warrantless ones. This is like saying, “we should make the driving test really easy because we don’t want people driving without licenses.”

Cops don’t always have probable cause; they don’t always admit that; they often make statements in search warrant affidavits that are literally true but that only by (unsupported and incorrect) assumptions support a finding of probable cause.

The cops who write search warrant affidavits and the magistrates who sign search warrants read Court of Criminal Appeals caselaw too, and there is a feedback loop. When the Court of Criminal Appeals says that it is reasonable for a Justice of the Peace to draw unsupported inferences, more cops will write literally-true but deceptive affidavits and more Justices of the Peace will sign warrants based on unsupported inferences, making it appear more reasonable to draw unsupported inferences, leading to more opinions upholding unsupported inferences, until one day an officer will be able write, “someone told me that somebody else possessed something,” the magistrate will “infer” all of the details necessary to convert this from rumor to probable cause, and the search of your underwear drawer will be upheld.

Relaxing the rules of the language so that “he told me twelve hours ago” might mean “he told me that twelve hours ago” does not show a preference for warranted searches over warrantless ones, but rather a preference for warranted searches over no searches at all—a preference that the Fourth Amendment assuredly does not suggest.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
This entry was posted in Fourth Amendment, search and seizure, Texas law. Bookmark the permalink.

4 Responses to Humpty Dumpty Hervey: Standard Written English = “Hyper-technical”

  1. Ric Moore says:

    It sounds like “snitch” was involved. You just know that they are completely trustworthy, and beyond reproach in such legal matters. Strange that they get beaten bloody senseless inside the razor wire, once discovered, but outside they are considered model informants. As reported on the evening news, as Obama said, “We’re (the cons and ex-cons) are not completely stupid.” I have a nickel to bet that the snitch was telling the cops what they wanted to hear, to beat his own rap. And they gleefully accepted it, as evidenced. Chairman Mao would be so pleased. Bah… Ric

  2. Mark Draughn says:

    Gosh, if only there was somebody whose job it was to review the warrant affidavit and spot these kinds of problems before the warrant was served…you know, someone who was educated in the language of law and could judge if the warrant application was good…

  3. Russell Barnett says:

    Circular Irony=decrying precision in language, yet relying on language to assert your authority over those who endeavor to use precision to affect your authority.

  4. Pingback: Bennett, Dissenting - The Conservative Choice

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