Saturday, April 26, 2008

Texas Polygamy Case And The [FORMER ???] Fourth Amendment

The drafters of the Bill of Rights were reacting to abuses by the British: the invasions of the homes of the colonists without grounds.


The Cool Justice Report
April 26, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

Did the government beat down the doors of an unpopular religious group with a bogus search warrant?

This week, attorneys for the Fundamentalist Church of Jesus Christ of the Latter Day Saints and Lyle Jeffs, its Bishop, filed an application in the District Court for Schleicher County, Texas, seeking a hearing to contest the grounds for the issuance of a search warrant.

That warrant was the legal authority for the entry into the Yearning for Zion compound of polygamist leader Warren Jeffs. The raid led to the seizure of 400 children suspected of having been sexually abused by members of the sect. The removal of these children and young adults has gained national prominence and focused on the polygamist practices of the group. Last week, a family court judge ruled that the youngsters will remain in protective custody or be placed in foster care, at least temporarily.

While not contesting whether the state possesses the inherent right to act in such a manner to protect children suspected of having suffered abuse, the church motion attacks the basis for a magistrate's issuance of the warrant that permitted access to the compound in the first instance.

The Fourth Amendment to the United States Constitution creates a reasonable expectation of privacy for any individual in his/her home (or other areas where such an expectation of privacy exists), to be free of unwarranted government intrusion: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The amendment requires that judicial review must act as a buffer between the citizen's right to privacy and the sometimes over-zealous actions of law enforcement.

In exigent or emergency circumstances, the need for a judicial warrant to enter a home may be excused. In those instances where a warrant is granted, the amendment mandates that it be supported by "probable cause" upon oath or affirmation. "Probable cause" in this context has been defined as reasonable grounds to believe that the items or persons sought to be seized are located within the property to be searched.

Further, there must be a specific description of the area to be searched and the items to be seized, or the warrant is subject to challenge as what the case-law has called a "general warrant." The determination of probable cause must be made on oath or affirmation and based upon a demonstration of sufficient facts to allow a neutral and detached magistrate to make an independent determination that probable cause exists.

The drafters of the Bill of Rights were reacting to abuses by the British: the invasions of the homes of the colonists without grounds.

The effect of a violation of the rights guaranteed by the Fourth Amendment has generated decades of judicial debate. The most frequently sought remedy has been the exclusion or suppression of evidence seized pursuant to a defective search warrant.

There is an exception to the Fourth Amendment's specificity requirement (that the property sought to be seized be described with sufficient precision to restrict law enforcement in the execution of the warrant) when officers, lawfully upon the premises, come upon contraband in plain view. The "plain view" exception is grounded in the premise that having lawful authority to enter the premises in the first instance, officers should not have to ignore obvious illegal items.

The church search was authorized by an affidavit claiming that repeated phone calls had been made from someone claiming to be 16 year old "Sarah." Sarah claimed
that she had an eight-month old baby and had been forced to become the spiritual wife of an older man, Dale Barlow.

Sarah also claimed that Barlow had sexually abused her. Texas law prohibits marriage of someone under the age of 16.

The legal action this application has commenced does not argue that polygamy or child marriage is somehow permissible as an appropriate exercise of the freedom of religion, which is also guaranteed by the Bill of Rights. The church has claimed that the affidavit submitted to support probable cause was fundamentally flawed. In a thorough recitation of the known facts, the sect's lawyers argue that the affiants were aware that critical information they were submitting was, in fact, false or, at least, in reckless disregard of the truth. They have requested that the court conduct a hearing to investigate the truth of the matters asserted by the affiants.

The full text of the application can be found as a PDF attachment to the report on (

  • CNN Report

  • The application alleges that Texas authorities knew that the 50 year-old Dale Barlow was serving a sentence of probation in Arizona and was not located at the compound. It also says the authorities knew the true identity of "Sarah," a 33 year-old troubled woman with a history of fictitious complaints. The failure of the cops and prosecutors to inform the magistrate is a fundamental flaw in the probable cause determination.

    The United States Supreme Court, in a decades old case, Franks v. Delaware, permits one whose privacy has been invaded by a search warrant to mount a challenge to the facts used in the affidavit to support probable cause. Ordinarily, those facts cannot be assailed. The premise in Franks is that it is a major constitutional infirmity to submit as "facts" in a sworn affidavit, information that is either untrue or stated in reckless disregard for the truth. In order to obtain the extraordinary remedy of such a hearing, the moving party must set forth facts that strongly suggest that the issuing magistrate was deceived. The application filed by church lawyers does just that.

    Among the tangible items the church challenges is the seizure of DNA samples from church members. These samples can form the basis for a determination that specific adult males are the biological fathers of the children of the underage females discovered at the compound. This would be the underpinning of a prosecution of those men for the sexual abuse of these children. The application also challenges the seizure of numerous documents, purportedly damaging to the church members, claiming a "cleric-penitent" privilege, among other grounds. In addition, because of the intense publicity that has ensued, the application requests that the court issue a confidentiality order prohibiting publication of information and materials obtained in the execution of the warrants.

    Separate and distinct from this constitutional challenge is the question of the state's right to remove the 400 youngsters and institute proceedings, which could lead to the termination of parental rights in the older sect members, or lead to custody of any minors being awarded to others. Whether there has been a violation of the Fourth Amendment, the welfare and best interests of these children will be paramount in the legal battles that will ensue. The rights of the church to privacy and to freedom of religion do not trump the obligation of the State of Texas to ensure that children are reared in an atmosphere free of abuse of any kind.

    Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

  • Meehan law firm
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