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Austin, Texas • In a hearing that could affect a dozen criminal cases connected to alleged underage marriages, a polygamous sect member on Wednesday challenged the search warrant that allowed a massive 2008 raid on the group's West Texas ranch.
Attorney Robert Udashen told Texas 3rd District Court of Appeals judges the search warrant was illegally obtained because it was based on a hoax call from a Colorado woman pretending to be an abused 16-year-old plural wife trapped on the ranch.
"If law enforcement had just done a little investigation, they could have figured out … this call wasn't true and it would have taken them little time to do it," Udashen said in representing Michael Emack, a 60-year-old contractor serving seven years in prison after pleading no contest last year to sexual assault and bigamy charges.
But attorneys for the state of Texas said police had good reason to believe there was an abused girl, and that they got a second search warrant after seeing evidence of other underage marriages and polygamy after entering the Fundamentalist Church of Jesus Christ of Latter-Day Saints' Yearning for Zion Ranch in Eldorado.
Authorities "did not put any deliberate falsehood and did not act in reckless disregard for the truth," said prosecutor Eric Nichols, of the Texas Attorney General's Office.
Fifty-first District Judge Barbara Walther found that the warrant was legal during a suppression of evidence hearing in 2009.
If the appeals court rules that the search warrant was illegal, it could bring into question the cases of all 12 FLDS men who were charged with crimes related to alleged underage marriages following the raid including sect leader Warren S. Jeffs, 55, charged with sexual assault and bigamy.
Five FLDS men have filed appeals after being convicted; one other entered a no contest plea and is also appealing. Five more are awaiting trial; Jeffs' trial is set for late July.
If the court were to side with Emack, who spiritually married a 16-year-old girl, the effects on the other men would have to be decided on a "case-by-case basis," but "there is no doubt the warrant at issue is the same one … it's very important," Nichols said.
The evidence in all those cases was collected in the week-long raid, in which authorities also removed 439 children who were later returned to their parents. It started in the late afternoon of April 3, 2008, when authorities arrived at the YFZ Ranch looking for 16-year-old Sarah Jessop Barlow.
That girl doesn't exist. Authorities have said the calls claiming abuse came from then-33-year-old Rozita Swinton, who has a history of making fake abuse calls. She has not been charged in connection with the call, which was placed to the NewBridge Family Shelter in San Angelo. Shelter workers then called police.
Calling the raid "a law enforcement debacle of unprecedented scope and magnitude," Emack's attorneys argued that the caller named her husband only after being given "multiple choice options" by shelter workers.
But Nichols countered that the caller's omissions, including a blocked number and a reluctance to reveal personal information, fit the profile of a domestic violence victim.
Once authorities entered the ranch, Udashen said they overreached when they collected all the 7- to 17-year-old girls in the community and kept them overnight in a schoolhouse for questioning, then began searching the community house-to-house to find the victim.
Nichols said that was reasonable in the approximately 1,600-acre ranch, which has no street names or house numbers.
"You have a situation in which there are no street names, no house numbers," he said. "It was reasonable under those circumstances for those officers to ... look for her wherever she might be found."
But Udashen argued that those actions were overly general.
"I'm not sure where the state gets off saying because they were looking for Sarah Barlow, they had a right to go into Michael Emack's home," Udashen said. "Where in the world does that come from?"
Willie R. Jessop, the onetime spokesman for the church, attended Wednesday's hearing. He called the search warrant challenge "a civil rights issue."
The raid "was a terrible trauma to the children. It could happen to any community in any city in America if it is tolerated in West Texas," he said.
Third District Court of Appeals in Texas has taken Michael Emack's appeal under advisement, but there is no deadline set for them to rule.