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…

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.

Sorry. Let me clarify. The statute was held unconstitutional last September. The search warrant was executed yesterday...

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.

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."

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.

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!

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.