TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Improper Photography / Search Warrant Issue
Go
New
Find
Notify
Tools
Reply
  
Improper Photography / Search Warrant Issue Login/Join 
Member
posted
While investigating a crime against a child, LE executes an evidentiary search warrant to seize a cell phone and analyze its contents. It is believed to contain photographs and video that are evidence of a number of offenses: sexual performance of child, possession of CP, agg kidnapping, and sexual assault to name a few…

Unfortunately, the only offense invoked in the SW affidavit was Improper Photography TPC § 21.15. We are not dealing with a bathroom or private dressing room here, so the warrant invokes only 21.15(b)(1) which was held unconstitutional last September. The PC articulates plenty of facts and circumstances to show that other specific offenses were committed. It just doesn’t invoke them by name.

The phone has been seized and is pending analysis. But do you think I need to work with LE to cure this issue somehow? Would a second warrant specifically invoking other offenses even cure this? Will good faith save the bacon? Is it sufficient that the PC states the facts without specifically invoking a valid criminal offense?

Thanks for any opinions in advance…
 
Posts: 104 | Location: Brazos County, Texas | Registered: February 10, 2010Reply With QuoteReport This Post
Member
posted Hide Post
Since the good faith exception in 38.23(b) is in the past tense ("was obtained," "issued," "based,") my two cents is that the good faith exception applies regardless of whether or not the statute has been ruled unconstitutional. Our concern here is the reasonableness of the search itself, and I don't see that the fact that the statute was later ruled unconstitutional is going to change the fact that at the time, the warrant was good.

But a new warrant would fix it and it wouldn't be an issue.
 
Posts: 192 | Location: Huntsville, TX | Registered: June 12, 2012Reply With QuoteReport This Post
Member
posted Hide Post
Sorry. Let me clarify. The statute was held unconstitutional last September. The search warrant was executed yesterday...
 
Posts: 104 | Location: Brazos County, Texas | Registered: February 10, 2010Reply With QuoteReport This Post
Member
posted Hide Post
Oh. Sorry. Didn't catch that.

Then no. The warrant's not based on probable cause because the offense it is describing is not an offense anymore. So there's no 38.23 good faith exception.

A new warrant describing PC for a valid offense should put you in attenuation/intervention territory.
 
Posts: 192 | Location: Huntsville, TX | Registered: June 12, 2012Reply With QuoteReport This Post
Member
posted Hide Post
quote:
The PC articulates plenty of facts and circumstances to show that other specific offenses were committed.

I think you are OK.
From Robinson v. State, 2013 Tex. App. LEXIS 13822: "the code does not require that the affidavit allege that a specific offense was committed. Rather, the code requires the affidavit provide sufficient facts to establish probable cause that a specific offense was committed."
 
Posts: 261 | Location: Lampasas, Texas, USA | Registered: November 29, 2007Reply With QuoteReport This Post
Member
posted Hide Post
John's completely right. I read your first post too quickly. If the PC in the affidavit bolsters other offenses then everything should be okay without a new warrant.

I want it noted that this is the only time I ever made a mistake ever in my entire tenure as research attorney.
 
Posts: 192 | Location: Huntsville, TX | Registered: June 12, 2012Reply With QuoteReport This Post
Member
posted Hide Post
So noted, Mr. English!

Thanks for the citation, John. That's a nice case to keep in the ol' "steal-the-defense-attorney's-thunder" bag.

best practice will be to state an actual offense, though!
 
Posts: 104 | Location: Brazos County, Texas | Registered: February 10, 2010Reply With QuoteReport This Post
Administrator
Member
posted Hide Post
quote:
Originally posted by Jon English:
I want it noted that this is the only time I ever made a mistake ever in my entire tenure as research attorney.


Don't worry, John--now that you are a prosecutor, you get to make mistakes all the time. Fortunately, you are still allowed to post on the user forum anyway. Big Grin
 
Posts: 2418 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
  Powered by Social Strata  
 

TDCAA    TDCAA Community  Hop To Forum Categories  Criminal    Improper Photography / Search Warrant Issue

© TDCAA, 2001. All Rights Reserved.