3rd Court of Appeals ignores own, prior ruling to approve Great Eldorado Polygamist Roundup

As foreshadowed in this Grits post, the Third Court of Appeals okayed the search warrant that spawned a series of bigamy, statutory rape and child molestation charges after the Great Eldorado Polygamist Roundup back in 2008. But remarkably, their opinion did so without addressing at all what this blog and many other legal observers considered the core issue in the case: A sweeping search warrant that allowed law enforcement to search multiple individual family households without any particularized suspicion.

The ruling strikes me as extraordinary because the same Third Court already ruled that Judge Barbara Walther abused her discretion on the civil side by authorizing a search of the entire community instead of specific, particularly identified residences. The entire ranch could not be considered a single household, the Third Court found, 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."

That's why Grits had written back in May, "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 a mandamus order (pdf) requiring CPS to return YFZ children to their parents, the Third Court ruled (and the Texas Supreme Court later agreed) that the entire ranch couldn't be considered a single 'household.'"

So how did the Third Court get around this seeming contradiction? The answer to me is downright bizarre: They simply ignored the argument. It was just not addressed. To call it an elephant in the room doesn't do it justice. The opinion declares that, "Although the State does not question appellant's showing of standing to contest the validity of the searches conducted pursuant to the April 3 and 6 warrants, the State contends that appellant failed to establish his standing to challenge the interviews conducted by the DFPS caseworkers acting pursuant to the order in aid of investigation." And with that little trick, they banished the sweeping nature of the YFZ Ranch warrants completely under the rug.

IANAL, but I see one big problem with that: The DFPS caseworkers weren't there in a vacuum. They came in droves as soon as the cops executed the warrant as part of a single, grand police action coordinated across multiple agencies, including DFPS. To claim they were there independently of the police search-and-seizure of the property is akin to the naked emperor's courtiers loudly admiring his wardrobe. DFPS is the fig leaf with which the court attempts to screen from view the state's small and shriveled excuse for ignoring the particularity requirement in the Fourth Amendment, but a fig leaf is all it is, and one fluttering in the breeze, at that.

Even if we accept this unlikely, concocted legal fiction, as hard as it may be to swallow, the opinion simply does not ever address head on the same court's earlier finding that "the evidence was not legally or factually sufficient to support a theory that the entire ranch community is a 'household.'" The 3rd Court of Appeals didn't change its mind, then, so much as ignore their previous ruling in a bow to political expediency. For that reason, Grits considers this not just a bad but a shameful opinion (authored, for the record, by Chief Justice Woodfin Jones and signed by Justices Henson (no relation) and Goodwin.

Regular readers will recall that at oral arguments the state claimed 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. 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 that's precisely what the Third Court has allowed here. This sets an unbelievably terrible precedent, demonstrating once again how unusual circumstances so often make for bad law.

I can't improve on Grits earlier assessment: "As far as I'm concerned, Judge Walther not only abused her discretion, as the Third Court has already ruled on the civil side, 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." Not to get hokey about it, but in a real sense allowing these warrants to stand is an affront to the core values this nation was founded upon. According to this source, "On the night before the Declaration of Independence was published, John Adams  cited the 'argument concerning the Writs of Assistance … as the commencement of the controversy between Great Britain and America.'" (As a curious aside, though, with few exceptions our modern Tea Partiers have so far seemed immune to Fourth Amendment concerns, for reasons that remain mysterious to me.)

The question now becomes: Will the Texas Court of Criminal Appeals be as firm in upholding the particularity requirement to the Fourth Amendment as was the Texas Supreme Court? The latter justices agreed with the Third Court's earlier ruling that the whole ranch couldn't be considered a "household." But the CCA, as regular readers know, is led by a self-described "pro-prosecution" presiding judge (Sharon Keller) who is more or less the quarterback of a faction that habitually sides with government in nearly every case. God knows whether they can muster five votes to overturn the Third Court's ruling; I certainly wouldn't put the odds above 50%. Indeed, it wouldn't surprise me if this case ended up on the US Supreme Court's docket somewhere down the line.

Either way, if this search warrant is allowed to stand it sets a terrible precedent - not just because it may set the stage for future, over-broad search warrants (the unusual circumstances could give future judges an excuse to view the ruling as a one-off), but because Third Court justices so brazenly allowed the ends to justify the means, perhaps fearing a backlash from West Texas voters (for whom the FLDS polygamist sect are much-hated pariah) in future elections. I haven't been as disappointed in a group of Texas judges in a long time, and that's saying something.

Related:

• Will Third Court of Appeals create a creepiness exception to the Fourth Amendment?
• Search warrant challenged in Great Eldorado Polygamist Roundup