The Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side based on some of the judgments now being called into question to challenge the search warrant used to invade the ranch (and given what attorney Robert Udashen yesterday called the "armada" of law enforcement that descended on the ranch, "invaded" is the appropriate word). But Judge Walther let the criminal cases continue, racking up several convictions based on evidence seized in the raid. This is the first time an appellate court will directly address the validity of the search warrant.
It's difficult for me to imagine how the court could decide the search warrant is valid without contradicting its own ruling on the civil side, particularly regarding the "particularity" requirement in the Fourth Amendment. In its mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court agreed) that the entire community including independent residences could not be considered a single household, just like an apartment complex with a single property owner doesn't eliminate Fourth Amendment rights of individual apartment dwellers. Footnote 10 to the court's mandamus order specifically declared that:
The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 [of the family code] and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a "household."But that rebuts exactly the argument the state used to justify the search warrant yesterday. They said they needed just one warrant to search every home and building on the 1,600+ acre ranch because there was a single corporate property owner and only one name on the utility bill. But since the 3rd Court has already ruled these were separate "households," I don't see how they can accept this argument. The logical extension of that line of reasoning would be that a particularized search warrant is unnecessary for people living in all-bills-paid apartments, for example, and that an alleged crime by one apartment-dweller would give police the right to enter and search every apartment in the complex. Clearly that would be absurd, but if the court allows a search based on that reasoning at the YFZ Ranch, there's no distinction articulated by the state yesterday that would prevent them from using general warrants in urban settings or anywhere else where many families live separately on a single property.
As far as I'm concerned, Judge Walther not only abused her discretion on the civil side, as the Third Court has already ruled, but that abuse began with the issuance of what amounted to a colonial-style "writ of assistance" of a type not seen in America arguably since the 1760s. Who knows if the 3rd Court panel will approve the warrant, or for that matter whether the Court of Criminal Appeals will be as firm in upholding the particularity requirement as was the Texas Supreme Court. But if this search warrant is allowed to stand it would set a terrible precedent, letting the ends justify the means.
It should also be mentioned that, though the name "Rozita Swinton" was never uttered, her nutty presence loomed large over the proceedings, and much of the discussion on both sides centered around whether she should be considered an anonymous source or a "named victim." The standard under Franks v. Delaware, the court was told, is whether information included in the probable cause affidavit was a) false and b) included knowingly and intentionally, or with reckless disregard for the truth. The issue arises because of the squirrely nature of the phone calls: They came to a women's shelter, not law enforcement, and a shelter worker fed Swinton key information, including the name of the man she falsely accused of assaulting her (he was an FLDS member on probation in Arizona).
Indeed, not only did they not check out Swinton's story at the time, to this day they haven't fully investigated. To repeat what Grits wrote in 2009, "why hasn't Rozita Swinton been charged for her instigatory role in the Texas case? I think it's precisely because the last thing Judge Walther and the Texas Rangers want is for her to be cross-examined under oath about who knew what when and how she was able to pull off such a grand imposture." If that had happened, I suspect it would have revealed improprieties by authorities that would invalidate the search warrant. Officials were looking for any excuse to launch such a raid and IMO knew or should have known at the time they went in that the call was a likely hoax. In particular:
- Authorities knew before the raid that Dale Barlow was in Arizona, had spoken to him, but made no effort to have him arrested or detained by his probation officer.
- The caller mispronounced the name of the town (there's a long "a" in Eldor-A-do), used terminology that did not match FLDS religious lingo, and only gave details about the group and the ranch that could be easily gleaned online.
- Authorities knew early on the calls to the shelter didn't come from Texas, and with minimalist investigation would have identified the caller as a routine hoaxer.
One strange aspect of the hearing was the assertion by the prosecution that the phone calls had come from a "blocked number," which the state claimed should be considered corroboration because some numbers at the YFZ Ranch were blocked. But that claim runs counter to evidence that law enforcement had those numbers early on. In an arrest warrant affidavit (pdf) for Swinton from Colorado Springs later that year, CSPD Detective Terry Thrumston wrote that:
On April 13, 2008, I was contacted by Sereant Hugh Velasquez (1514D) regarding information he had obtained from Sergeant Sean Mandel. Sergeant Mandel told Sergeant Velasquez he had been contacted by the Texas Rangers in regard to their investigation into the Yearning for Zion (YFZ) Ranch. Sergeant Mandel related Texas Ranger Brooks Long had advised him he had two cellular telephone number listings from the Colorado Springs area (719-351-0913 and 719-243-2866). Sergeant Mandel was aware that the phone number, 719-351-0913, that was possibly related to the reporting party for the YFZ Ranch incident in Eldorado, Texas, was also identified in a prior CSPD case report.Why weren't these phone calls to Colorado Springs made before the raid? Swinton first called the shelter on March 29, 2008, and the raid occurred on on April 3, giving them plenty of time to investigate. And if by April 13 Ranger Long had Swinton's real, not "blocked" phone numbers, why couldn't he have secured them in the days before the raid? The defense didn't question the claim the numbers were "blocked," which startled me given the CSPD's take on Swinton and the ease with which they identified her as a false reporter as soon as Rangers contacted them. While it may be true the Ranger didn't have the information before the raid, it appears he made no effort to get it; at least we know by April 13 he'd figured out how to get that information, and I see no reason the same tactics couldn't have been applied in the days before the raid.
On April 14, 2008, I spoke with Texas Ranger Long and confirmed telephone number 719-351-0913 was in fact a local Colorado Springs telephone number associated with Rozita Swinton. I informed Ranger Long that Rozita Swinton was known to make false reports of sexual abuse to the police and other agencies. The Texas Rangers advised they would be responding to Colorado Springs to conduct further investigation.
Whether the failure to follow up with available investigative tactics was "reckless" is a matter for the court, but IMO it's just another example of the underlying, opportunistic dynamic in the case. This wasn't a situation where law enforcement was investigating a crime by an individual and uncovered mass wrongdoing. Instead, locals had been seeking ways to drum the FLDS out of the county and leaped on the opportunity to roust them.
MORE: See coverage from the San Angelo Standard Times. AND MORE: The Standard Times had a followup story, "Possible ramifications of FLDS appeal detailed."