EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, March 16, 2008

She's Filing Her Nails While They're Dragging The Lake: Court Of Appeals Of Texas Finds That Local Authorities Didn't Piggy-Back On Federal Investigation

I'm sure that many people already miss HBO's "The Wire," which aired its final episode one week ago today.  Well, here's an interesting Texas case which calls to mind McNulty and Freamon's cockeyed "let's make up a serial killer so that we can get a wiretap and take down Marlo" plan from this last season (incidentally, my wife worked at the talent agency that repped Jamie Hector, the actor who played Marlo, and she tells me that he's a really nice guy in person).

In the recent case, Davidson v. State, 2008 WL 678581 (Tex.App.-Austin 2008), Wendi Mae Davidson reported on January 16, 2005 that Michael Severance, her husband and an airman in the United States Air Force stationed at Dyess Air Force Base in Abilene, Texas, had been missing since the day before.  Davidson advised the security forces section at the Air Force base that he may have deserted his post, possibly fleeing to Canada because he was scheduled to be deployed.  Investigators with the Air Force Office of Special Investigations (AFOSI) began a missing persons/deserter investigation and Officer Dennis McGuire of the San Angelo Police Department began a parallel investigation.

During the course of their investigation, AFOSI agents sought and received written approval from the Regional Commander at Langley Air Force Base in Virginia to place a mobile tracking device on Davidson's vehicle.  Data retrieved from the device showed that on February 27, Davidson's vehicle traveled to a remote location, identified as ranch property owned by Terrell Sheen.  The agents contacted Sheen on March 1, and he told them that Davidson and Severance had access to his ranch property and that Davidson kept a horse there. Sheen then consented to the agents' search of the property and showed them various ponds, including a large stock pond with a boat dock. 

Two days later, Texas Ranger Shawn Palmer and San Angelo Police Sergeant Jones interviewed Davidson at her veterinary clinic and eventually asked about the Sheen property and the large stock pond on it.  When the officers asked about the large pond, Davidson "became more abrupt in her answers...[and] got kind of defensive," responding that her parents also had a pond on their property and that Sheen's ranch had three ponds, not just one.  This made Palmer suspicious, and after the interview was over, he asked AFSOI agents and a police officer to set up surveillance in the vicinity of Sheen's ranch; when they arrived, Davidson was about to enter the ranch through a gate.  She was denied access, and the lake was then searched, leading to the discovery of Severance's dead body, which was stabbed 41 times and tied down with car parts and cinder blocks.  Davidson was later convicted of murder and two counts of tampering or fabricating physical evidence with intent to impair.

On appeal to the Court of Appeals of Texas, Davidson's main argument was that because the civil law enforcement authorities "piggy-backed" on the military personnel's application and installation of the tracking device, they acted "in collusion with" the AFOSI agents and bypassed the requirement of a judicial order.  While the AFSOI properly received federal permission to place the tracking device on Davidson's car, neither they nor the local authorities complied with Texas Code of Criminal Procedure 18.21.  Thus, if the court determined that the AFSOI/local authority investigation was a joint operation, the tracking would have been improper because state officers would have done indirectly what their statute prohibited them from doing directly, by using federal agents to circumvent these requirements.

The Court of Appeals of Texas, however, found that this was not a situation where local authorities who could not get a tracking device used federal agents to get such tracking; instead, it was the call by Davidson herself about her missing husband which gave rise to the AFSOI investigation.  The court thus rejected Davidson's argument because she "did not adduce evidence or demonstrate in any manner that the law enforcement officers did indirectly through the AFOSI agents what they were prohibited from doing directly in order to circumvent state statutory requirements."



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