Have a suppression issue. Police have search warrant and while in course of there search discover other evidence outside the scope of the warrant. They got a subsequent warrant. Problem - the subsequent warrant was signed by the same judge who did the original search warrant, our CCL judge. Code specifically says District Court Judge must sign for subsequent warrants. (CCP 18.01(d)) Now, our CCL has concurrent jurisdiction with the District Courts on criminal matters and my argument must lie what concurrent jurisdiction means. Any ideas?

Was you initial warrant an evidentiary warrant or a regular dope (or whatever) warrant? The subsequent warrant limitation is for a subsequent evidentiary warrant. See 18.01(d).

Other than that, I guess you could argue 38.23(b) good faith exception. They had pc, they got a warrant, there's just a statutory problem with the warrant. If I was the other side, though, I'd argue that this shouldn't fly because it would always excuse noncompliance with 18.01(d). I guess you could counter with "our guys didn't know about 18.01(d)" and ought to get a break, this time, for trying to do the right thing. It helps you that the CCL judge has concurrent jurisdiction under this--the problem is more understandable. I don't know that concurrent jurisdiction cures the problem--statute plainly says judge of a district court, not judge of a district court or court with felony jurisdiction.

The good faith exception should cover the problem, so long as the officer can testify he believed, in good faith, that the warrant was legal. Now, the next time that officer gets such a warrant, he probably can't use that excuse.

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Originally posted by JB:
Now, the next time that officer gets such a warrant, he probably can't use that excuse.

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Agreed. That's what I meant by "this time."

Explicit perhaps within the two previous John's responses, but just in case. Don't forget the law prefers a warrant over no warrant and the police did what they thought was right. They at least involved a neutral and detached magistrate in the process and did not attempt to sidestep proper process. This underlies the good faith exception but it never hurts to remind those involved of the rationale for exceptions. No bad faith/overreaching here.

JAS

double check that both warrants really are evidentiary warrants before you decide that the judge limitation applies. Here are some cases that might help if you have a mixed item search warrant:

Ramos v. State, 934 S.W.2d 358 (Ct. Crim. App. 1996) says if 2nd is both evidentiary and non-evidentiary, must look to see if sw permitted on other basis alone, then evidentiary items can be seized under plain view

State v. Acosta, 99 S.W.3d 301 (Ct. App. Corpus Christi 2003) look at evidence sought rather than title of warrant to determine if warrant is evidentiary

State v. Young, 8 S.W.3d 695 (Tex. Ct. App. Ft. Worth (1999) 18.02(10) is catch-all & only applies when other articles do not

Zarychta v. State, 44 S.W.3d 155 (Tex. Ct. App. Houston [14th Dist] 2001) search for items that could only be characterized as evidence along with items that are instrumentalities is not an evidentiary warrant

Good luck!