I have a question on the execution of one of our search warrants.
We have a DWI case where the defendant broadsided another vehicle in Kerr County
On scene, officer smells odor of alcoholic beverage on the defendant and beer is found in her car. There is also reports of erratic driving prior to the wreck.
Both the defendant and driver are air lifted to a Bexar County Hospital. Nobody is arrested for anything that night.
The next day a local officer (Kerrville PD officer) obtains a search warrant for the defendant's blood samples that were taken from by the hospital (in Bexar County) the evening of the accident.
One of our local District Judges issues the warrant, which instruct the officer who applied for it to execute it. A Kerrville PD officers then goes to the hospital, which is in Bexar County and obtains the samples from the hospital and sends them to DPS. Nothing in the report suggests that Bexar County law enforcement was ever contacted or involved in the warrant's execution.
Defense is claiming lack of jurisdiction for the warrant. I know based on Green v. State 880 S.W.2d 198 and US v. Conine 33 F.3d 467 (5th), that I'm okay on our Judge issuing the warrant, but are we in trouble on the execution?
But the case law I'm finding suggests I might have issues with a Kerrville Police Officer executing the warrant.
EDIT: Another possibility I thought of: the samples were taken from the defendant by the hospital for medical purposes not at the request of law enforcement. Law enforcement just seized them after the fact. Does our defendant even have standing to contest the warrant?
[This message was edited by Ceaton on 05-26-10 at .]
Our search warrants are directed to "the Sheriff or any Peace Officer of Denton County, Texas, or any Peace Officer of the State of Texas."
Here in the DDFW area, we constantly run into issues of "crash in one County, defendant/victim(s) hospitalized in another County."
We've done search warrants for blood vials and/or medical records (playing it safe and getting them signed by a District Court Judge...) and have never had an issue with this.
And you always have the good faith exception, so long as the affidavit set out probable cause.
Are they contesting the jurisdiction of the officer who executed the warrant or the judge who issued it? You don't really spell out which district judge issued the warrant -- one in Kerr County or one in Bexar County. We always get a judge in the county in which we're conducting the search to sign the warrant because we understood that having a judge in another county sign it left you in somewhat of a gray area of the law.
One of the District Judges in Kerr County issued the warrant. The defense has mentioned this as a reason he's contesting it.
The defense attorney hasn't contested the jurisdiction of the officer yet, but I expect him too, but he just filed the motion today and I haven't had time to look it over.
The warrant itself ordered the "affiviant" to seize the evidence. The affiviant was a KPD officer.
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