Where the statute is silent, there is no constitutional impediment to swearing to the affidavit for a search warrant over the telephone. After all, federal Rule 41 permits it, and so do several states. Clay v. State, 2013 Tex. Crim. App. Unpub. LEXIS 25 (January 9, 2013) (note this is in the “unpublished” database, but the case clearly says “PUBLISH”; we can assume the Lexis cite will change) (dissent):
The statutory requirement of a "sworn affidavit" serves two important functions: to solemnize and to memorialize. That the affidavit must be sworn to fulfills the constitutional requirement that it be executed under oath or affirmation so as "to impress upon the swearing individual an appropriate sense of obligation to tell the truth." That it must be in writing serves the additional objective that the sum total of the information actually provided to the issuing magistrate in support of his probable cause determination be memorialized in some enduring way to facilitate later judicial review. Article 18.01(b)'s requirement that the memorialization take the form of a written affidavit was satisfied in this case by the fact that Ortega drafted a written affidavit and faxed it to Judge Harris, so that the issuing magistrate had a document to be "filed" as required. On the particular facts of this case, then, the only remaining question is whether Ortega's written affidavit was properly "sworn" to, in contemplation of Article 18.01(b), when Judge Harris administered the oath to Ortega over the telephone rather than face to face.
There is apparently no Fourth Amendment impediment to administering the oath or affirmation telephonically. The Federal Rules of Criminal Procedure have authorized telephonic applications for a search warrant since 1977, and the federal courts long ago rejected the specific argument "that for constitutional purposes an oath or affirmation is invalid merely because it is taken over the telephone[,]" elaborating that "[t]he moral, religious and legal significance of the undertaking remains the same whether the oath taker and the witness communicate face-to-face or over the telephone." Following the federal lead, many states now provide for telephonic search warrant applications by statute or rule, and many of those provisions expressly permit the obligatory oath to be administered over the telephone. At least one state's highest appellate court has refused to suppress evidence based upon a warrant application that was made, and the oath administered, orally over the telephone—even in the face of a statute that requires a written affidavit. Another state's highest court has held, in light of express statutory language requiring an affidavit to be "sworn to before" the issuing magistrate, that the telephonic application for a search warrant was invalid, but the court nevertheless refused to suppress the fruit of the search because the police officers acted in good faith. Yet another highest state court has recently held, however, in construing a statute that explicitly requires an "affidavit sworn to before the magistrate," that an oath administered over the telephone "complies with the literal terms of the statute such that there was no defect in the warrant." Our statute neither facially provides for, nor explicitly prohibits, administration of the oath telephonically.
Trial and deposition witnesses testify by telephone, so why not swearing affidavits by telephone? The law should be interpreted to encourage issuance of warrants, not penalize otherwise reasonable efforts to comply with the warrant requirement.
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