Will Third Court of Appeals create a creepiness exception to the Fourth Amendment?

It's been a while since I've paid attention on Grits to the fallout from the Great Eldorado Polygamist Roundup, but now that Warren Jeffs trial is over (and what a lunatic he turned out to be), all that's left is to wait around to determine whether Texas appellate courts will uphold the dubious search warrant underlying the entire exercise. (See Grits coverage of the appellate arguments in May.)

Grits' interest in this case mainly stemmed from two topics: 1) the search warrant amounted to a breathtakingly sweeping, colonial-style writ of assistance of a type unseen in the United States since the overthrow of King George III. 2) Nearly 500 kids were seized from their mothers and sent to CPS, though even under the theory that young brides were being sexually assaulted, the women should have been treated as crime victims and allowed to stay with their children.

I've never had any beef with prosecuting individual pedophiles, which is why (along with a general lack of bandwidth on a one-man blog) Grits did not cover the blow by blow on individual cases from the Great Eldorado Polygamist Roundup after all the kids were sent home. (Anyway, with all cases taking place in Judge Barbara Walther's court, the outcomes were always faits accompli.) As I understand it, seven men including Jeffs have now been convicted of various sex offenses, which is a far cry from the number of perpetrators alleged when all of the kids were seized. But for my part, I'm still eagerly awaiting the Third Court of Appeals' ruling on the search warrant in the case, as are apparently lots of other folks to judge by a story in the San Angelo Standard Times this week, which opens:

Warren Jeffs and seven other convicted members of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints challenged search warrants and evidence in court and were flatly rejected, solely by one judge.

But in the weeks and months to come, appellate court judges in Austin will hold the keys to whether the men remain behind bars or get new trials.

State District Judge Barbara Walther signed off on the original search warrants and later upheld them in a court hearing. Then she presided over FLDS members' trials.

One of the biggest arguments now before the Third Court of Appeals in Austin is in the case of Michael Emack over evidence gathered at the Yearning for Zion Ranch near Eldorado in 2008. Emack is one of 12 FLDS men indicted as an outcome of the raid. The evidence stemmed from search warrants that defense attorneys claim relied on faulty information and were carried out too broadly.

An attorney quoted in the article said perhaps the strongest argument against the search warrant is that the "searches were too sweeping and encompassed an entire community of homes rather than targeting a specific place," which has always been Grits' main objection.

The Third Court of Appeals has already ruled on the civil side 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 (pdf) 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."

If the court applies consistent reasoning to the search warrant on the criminal side, it's hard to see how it stands.

Yesterday, though, I spoke with an attorney knowledgeable about the case who told me he fears this may be an instance where politics and expedience trumps law and common sense. Jeffs the "prophet" was exposed in court to be a depraved and profligate dictator and the grotesque and creepy details of his own exploits with young girls and his now-infamous promotion of child brides among his flock received wide play in the MSM, not just in West Texas but nationally.

The question becomes, will the court decide the ends justify the means? Will they find some odd, narrow excuse to justify this search while trying to pretend it doesnn't create a new exception to the Fourth Amendment to do the same thing elsewhere? The attorney I spoke to feared Jeffs' behavior was so far-out that Third Court Justices won't want to be seen as ruling in his favor and will find some excuse to carve out a narrow exception (for sex offenders? for religious pariahs?) to allow in all the evidence, even if it contradicts the same court's prior ruling in the child custody cases. That would be a disappointment. Exceptional cases too often make bad law, and it'd be unfortunate if this once in a lifetime case were allowed to expand the "particularity" requirement in the Fourth Amendment so dramatically in one fell swoop.

I don't defend Warren Jeffs behavior for a moment, nor anyone else who uses their religious station to perpetrate sexual abuse - whether among polygamists or in the Catholic Church. I just don't believe it's necessary to defenestrate the Bill of Rights for everyone else in order to rein such folks in.