UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-4873

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

DAVID MILTON CONINE,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

(September 16, 1994)

Before POLITZ, Chief Judge, DAVIS and WIENER, Circuit Judges.

POLITZ, Chief Judge:

The government appeals the decision of the district co urt

excluding, in the prosecution of David Milton Conine, all evidence

resulting from execution of a state-issued search warrant. For the

reasons assigned we reverse and remand.

Background

In August 1992 a joint state and federal investigation

uncovered marihuana growing in a rural area of Red River County,

Texas. State law enforcement officers maintaining ground

surveillance discovered that Conine resided in a trailer house on1 The Department of Public Safety officers were misinformed by

the sheriff's office that Conine owned the entire property.

2 The 6th Judicial District is composed of Fannin, Lamar, and

Red River Counties. Tex. Gov't Code Ann. § 24.106(a) (Vernon

1988).

3 The 102nd Jud icial District is composed of Bowie and Red

River Counties. Tex. Gov't Code Ann. § 24.204(a) (Vernon 1988).

4 The 6 2nd Judicial District is composed of Delta, Franklin,

Hopkins, and Lamar Counties. Tex. Gov't Code Ann. § 24.164(a)

(Vernon 1988).

2 one of the four tracts of property surveilled. 1 Sergeant Harold

O'Brien, the officer in charge of the state effort, and Assistant

District Attorney Jeff Starnes prepared an affida vit and

application for a search warrant. Starnes then sought a state

district judge to issue the warrant. Red River County lies within

two judicial districts, the 6th 2 and the 102nd. 3 Starnes first

sought Judicial District Judge Henry Braswell of the 6th District

who issued most of the search warrants for property i n Red River

County. Judge Braswell was ill and unavailable. Starnes then

attempted to reach 102nd Judicial District Judge Leon Pesek in

Texarkana. Judge Pesek was presiding over a trial in New Boston

approximately 65 miles distant. Finally, Starnes contacted

District Judge Jim N. Thompson of the 62n d Judicial District 4 in

adjacent Lamar County. Judge Thompson met O'Brien in Bogota in

Red River County. Finding the requisite probable cause, Judge

Thompson issued the warrant, crossing out the reference to Red

River County under his signature and inserting Lamar County.

The next day

O'Brien and other state and federal narcotics

officers executed the search warrant. The search of Conine's3

trailer and surrounding structures disclosed marihuana; marihuana

seeds; firearms and ammunition; over $18,000 in cash; a triple-beam

scale; and dru g manufacturing equipment such as beakers, a heat

lamp, and a condenser. Additionally, 1,132 marihuana plants were

discovered growing on the adjacent land. Several weeks later a

survey revealed that the standing marihuana was on tracts of land

other than that on which Conine resided. Conine was taking

advantage of the isolated nature of the area to grow marihuana on

neighboring tracts of land.

C onine ultimately was charged in a five-count super seding

indictment with posse ssion with intent to distribute marihuana

(Count 1), unlawful possession of firearms (Count 2), use or

carrying of a firearm during and in relation to a drug-trafficking

crime (Count 3), possession of a controlled substance with intent

to distribute (Count 4), and criminal forfeiture (Count 5). Conine

tentatively agreed to plead guilty to Counts 2 and 4 and agreed to

the forfeiture of certain property described in Count 5. At his

guilty-plea hearing Conine informed the court that he had not read

the search warrant. The search warrant was produced and a recess

was called. Following the recess Conine declared that he wished to

challenge the validity of the search and seizure and that he

desired to obtain new counsel. The district court set aside the

guilty plea and entered a plea of not guilty, pending a ruling on

the validity of the search warrant.

Conine moved to suppress, contending that the warrant was

defective. Following a suppression hearing the district court5 United States v. Shaw

, 920 F.2d 1225 (5th Cir.), c ert

.

denied

, 500 U.S. 926 (1991); United States v. McKeever

, 905 F.2d

829 (5th Cir. 1990) ( en banc ), cert

. denied

, 498 U.S. 1070 (1991).

6 Today's decision is fully supported by the very recent

opinion of an intermediate appellate court which, in approving the

issuance of a search warrant by the same judge involving the same

counties as in case at bar, states in passing that neither Texas

cases nor statutes proscribe the practice. S ee Green (Othar Glen)

v. State , 880 S.W.2d 198 (Tex.App.--Texarkana, 1994).

4 determined that the search warrant was void ab initio under Texas

law because Judge Thompson did not have territorial jurisdiction to

issue a search warrant for property located in Red River County.

All evidence discovered pursuant to the warrant was suppressed.

This ruling m ooted Conine's fourth amendment challenge. The

district court di d not reach the government's contentions that

Conine lacked standing as related to properties adjacent to those

in which he had a possessory in terest, and that the good faith

exception to the exclusionary rule should be applied. The

government timely appealed.

Analysis

We begin by noting that when a state officer secures a search

warrant from a state judge, Federal Rule of Criminal Procedure

41(a) is not the rubric for determining whether the search warrant

was issued by an appropriate court even when the seized evidence is

offered in federal co urt. State law controls in that instance. 5

The constitution and statutes of Texas do not explicitly provide

the answer to the jurisdictional question posited, and there is a

dearth of jurisprudence. 6 We approach today's interpretive task in7 American Waste & Pollution Control Co. v. Bro wning-Ferris,

Inc. , 949 F.2d 1384 (5th Cir. 1991).

8 Tex. Code Crim. Proc. Ann. art. 18.01(a) (Vernon Supp. 1994).

9 O'Quinn v. State , 462 S.W.2d 583 (Tex.Crim.App. 1970).

1 0 See Tex. Code Crim. Proc. Ann. art. 2.09 (Vernon Supp. 1994).

1 1 Tex. Code Crim. Proc. Ann. art. 2.10 (Vernon 1977) (emphasis

added).

12 Tex. Code Crim. Proc. Ann. art. 1.26 (Vernon 1977).

13 Tex. Code Crim. Proc. Ann. art. 1.27 (Vernon 1977).

5 that setting. 7

The Texas Code of Crimina l Procedure provides that a search

warrant is a written order issued by a magistrate. 8 The title

"magistrate" has come to connote one having duties which are

judicial in nature. 9 The Code identifies magistrates as including

justices of the supreme court and courts of criminal and civil

appeals, the judges of the district courts, county judges, judges

of the county courts at law, and justices of the peace. 10 Although

"[i]t is the duty of every magistrate to preserve the peace within

his jurisdiction by the use of all lawful means . . .," 11 the Code

denotes no territorial limitations to a magistrate's jurisdiction

when issuing a search warrant. In absence of such limitations, the

Code is to be liberally construed to attain the objects of

prevention, suppression, and punishment of crime. 12 When the Code

fails to provide a rule of procedure in a given case, the rules of

the common law apply. 13

Most of the cases discussing the jurisdiction of magistrates

involve justices of the peace . When acting as a magistrate, the14 See Ex parte Clear , 573 S.W.2d 224 (Tex.Crim.App. 1978) ( en

banc ); Gilbert v. State

, 493 S.W.2d 783 (Tex.Crim.App. 1973);

Hinkley v. State

, 119 Tex.Crim. 254, 45 S.W.2d 581 (1931) (justice

acting as magistrate issuing a search warrant); Hart v. State , 15

Tex.Ct.App. 202, 49 Am.Rep. 188 (1883) (justice acting as examining

court).

15 15 Tex.Ct.App. at 226-27.

1 6 Childers v. State

, 30 Tex. Ct.App. 160, 16 S.W. 903, 906

(1891).

6 jurisdiction of a justice of the peace is coextensive with the

limits of the county. 14 In the seminal case of H ar t v. State

,

involving a justice of the peace, the court explained:

When sitting as an "examining co urt," the law nowhere

limits the magistrate, if he be a justice, to his

particular precinct; and, not being limited in this

regard, there is no reason why it was not intended that

he should hold the court in any portion of the county

most convenient for the purposes of the examination as to

the commitment or discharge of the accused, whether the

place of the sitting be in the pr ecinct of another

justice, competent and qualified to act, or not. 15

The territorial jurisdict ion of a justice of the peace is his or

her precinct. The caselaw has extended the jurisdiction of

justices of the peace functioning as magistrates, however, to the

limits of the county. This would indicate that the territorial

jurisdiction of the justice of the peace depends upon which hat is

being worn, that of a justice of the peace or that of a magistrate.

We presume to suggest that such a rubric should be "equally so of

the judges of the supreme, district, and county courts." 16

Although by title and office Judge Thompson is a district

judge of the 62nd Judicial District, when he issues a search1 7 See State ex rel

. Holmes v. Salinas

, 774 S.W.2d 421 (Tex.App.

--Houston [14th Dist.] 1989, no pet .).

18 See Tex. Code Crim. Proc. Ann. art. 2.09.

1 9 State ex rel

. Homes v. Salinas

, 784 S.W.2d 421 (Tex.Crim.App.

1990) ( en banc ).

20 Tex. Const. art. V, § 7.

21 Tex. Gov't Code Ann. §§ 24.101 et seq . (Vernon 1988).

22 Tex. Code Crim. Proc. Ann. art. 1.23 (Vernon Supp. 1994).

See also Tex. Const. art. V, § 12.

7 warrant, he is acting as a magistrate 17 by virtue of his office as

a district judge, 1 8 for Judge Thompson's "authority to act in the

c apacity of magistrate is dependent upon his office." 1 9 We must

therefore examine Judge Thompson's jurisdiction as a district judge

to assist in resolving the question of his jurisdiction as a

magistrate. His territorial jurisdiction as a magistrate will at

least encompass that of a district judge.

The Texas Constitution divides the st ate into judicial

dis tricts. 2 0 These judicial districts are further defined by the

counties encompassed. 21 A district judge's duties, however, are not

limited to the district over which he or she presides. For

example, Article 1.23 of the Texas Code of Criminal Procedure

provides:

All justices of the Supreme Court, judges of the Court of

Criminal Appeals, justices of the Courts of Appeals and

judges of the District Courts, shall, by virtue of their

offices, be conservators of the peace throughout the

State. The style of all writs and process shall be "The

State of Texas" . . . . 22

It is well recognized that district judges hold court for each

other for various reasons such as illness, vacation,2 3 See Tex. Gov't Code Ann. §§ 24.002 (substitute judge

appointed by the governor), 24.003 (substitute judges in counties

with five or more district courts for civil cases only), 74.052(a)

- 74.062 (assignment of judges under the Court Administration Act)

(Vernon 1988).

2 4 Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988) . This

language might indicate that this is the only instance in which

district judges may exchange benches or transfer cases; otherwise

the statute would be superfluous when read in light of the Texas

Constitution. S ee infra

. However, subsection (d) provides: "This

section does not limit the powers of the judge when acting for any

other judge by exchange of benches or otherwise." S ee also

Mitchell v. Cornwall , 314 S.W.2d 437 (Tex.Civ.App.--El Paso 1958,

no writ ) (holding t hat the constitutional jurisdiction of a

district court cannot be taken away by legislative act).

2 5 See Tex. Gov't Code Ann. §§ 24.106(c), 24 .204(d) (Vernon

1988). Concurrent jurisdiction can also occur as follows: A judge

of District A may go into District B for the purpose of holding

court sim ultaneously with the regularly elected incumbent, both

conducting court for District B. S ee

, e.g.

, Eucaline Medicine Co.

v. Standard Inv. Co.

, 25 S.W.2d 259 (Tex.Civ.A pp.--Dallas 1930,

writ ref'd ).

8 disqualification, or a buildup or backlog in a particular docket. 23

The Texas Gov ernment Code provides for the transfer of cases

between district judges within the same county:

In any county in which there are two or more district

courts, the judges of those c ourts may, in their

discretion, either in term time or vacation, on motion of

any party or on agreement of the parties, or on their own

motion, transfer any civil or criminal case or proceeding

on their dockets to the docket of one of those other

district courts. The judges of those courts may, in

their discretion, exchange benches or districts from time

to time. 24

At the time the search warrant was issued, Red River County had two

district judges with concurrent jurisdiction. 25

More relevant to today's issue, not only may district judges

with concurrent jurisdiction transfer cases and exchange benches,

but all d istrict judges may exchange benches. Article 5,2 6 See Davila v. State

, 651 S.W.2d 797 (Tex.Crim.Ap p. 1983);

R.J. Gallagher Co. v. White

, 709 S. W.2d 379 (Tex.App.--Houston

[14th Dist.] 1986, no writ )

. See also Mata v. State

, 669 S.W.2d

119 (Tex.Crim.App. 1984). We note that the cases indicating that

no formality is required before benches are exchanged involve

districts where the courts had concurrent jurisdiction. S ee

, e.g.

, Davila v. State

, 794 S.W.2d 518 (Tex.App.--Corpus Christi 1990, no

writ ) (Neuces County); Mata

, 669 S.W.2d at 121 (Aransas, Bee, Live

Oak, McMullen & San Patricio Counties); Davila , 651 S.W.2d at 802

(Teague, J., dissenting) (noting that Pendleton v. State

, 434

S.W.2d 694 (Tex.Crim.App. 1968) and Isaac v. State , 158 Tex.Cr.R.

540, 257 S.W.2d 436 (Tex.Crim.App. 1953), hold that no written

order is necessary for one duly elected district judge to preside

in the court of another, but do not discuss the requirements for a valid transfer of jurisdiction).

2 7 Tex. Const. art. V, § 7; Tex. Gov't Code Ann. §§ 24.001 e t

seq

., 24. 101 et s eq

., 24.301 et seq

. (Vernon 1988 & Supp. 1994).

Cf

. Tex. Gov't Code Ann. § 74.094(d) (Vernon 1988) ("Judges of

district courts and statutory county courts m ay serve as masters

and magistrates of courts, other than their own, subject to other

provisions of law and court rules.").

2 8 See Pierson v. State

, 177 S.W.2d 975 (Tex.Crim .App. 1944)

(while district courts, their jurisdiction, and the qualifications

of district court judges are fixed by the Constitution, the

legislature is given exclusive authority to create such courts, to

fix their territorial jurisdiction

, and to determine their number).

The ability of the legislature to fix the territorial jurisdiction

9 section 11, of the Texas Constitution provides that the "District

Judges may exchange districts, or hold court for each other when

they may deem it expedient, and shall do so when required by law."

No formal action or order is required, nor, in many instances, is

it necessary for a docket sheet or minutes to show the reason for

the exchange of benches. 26

Neither the Texas Constitution, Texa s statutes, nor Texas

jurisprudence limits a district judge when issuing a search warrant

to the judicial district he or she has been elected to serve. 27 The

Texas legislature has authority to fix the territorial jurisdiction

of district judges when they act as magistrates. 28 It has invokedof a district j udge in no way detracts from a district judge's

ability to sit for a district judge of another district as provided

under Tex. Const. art. V, § 11. S ee Savage v. Umphres , 131 S.W.

291 (Tex.Civ.App. 1910) (a district judge of a district not

embracing the county in which the contested election was held,

sitting in exchange with the judge of that district, could try a

case; jurisdiction being conferred on the dis trict court and not

its judge).

2 9 Tex. Code Crim. Proc. Ann. art. 18.04(3) (Vernon 1977). S ee

Gilbert v. State , 493 S.W.2d 783 (Tex.Crim.App. 1973).

3 0 Tex. Code Crim. Proc. Ann. art. 15.0 7 (Vernon Supp. 1994).

Arrest warrants issued by all other magistrates extend to any part

of the state. S ee Tex. Code Crim. Proc. Ann. art. 15.06 (Ver non

Supp. 1994).

10 such power in other contexts, notably in article 18.04 of the Texas

Code of Criminal Procedure which requires that a search warrant be

executed by a "peace officer of the proper county." 2 9 The

legislature also has limited the territorial jurisdiction of mayors

and recorders of incorpor ated cities or towns to issuing arrest

warrants within the county in which the arrest warrant is issued

statewide. 30

District judges are empowered, by the Texas Constitution, to

functio n judicially throughout the state. District judges are

unique in that respect. We decline to read into Texas law a

limitation of a district judge's powers as a magistrate which does

not e xpressly exist in its positive law. We therefore hold that

District Judge Thompson was authorized to issue a search warrant

for property located in Red River County.

In response to Conine's suggestion that forum shopping may

result from today's ruling, we need only caution that such would be

subject to a fourth amendment challenge of the neutrality of the31 We note that if a search warrant is requested to search for

and seize property or items constituting evidence of an offense of

constituting evidence tending to show that a particular person

committed an offense, only a judge of a statutory county court,

district court, the court of criminal appeals, or the supreme court

may issue the warrant; it cannot be issued by a justice of the

peace. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp.

1994). An exception under subsection (i) does not apply to the

case at bar. The district court also took judicial notice that

Red River County currently has no statutory county court. Tex.

Gov't Code Ann. §§ 25.1961- 25.1970 (Vernon 1988).

3 2 See

, e.g.

, Reed v. State

, 500 S.W.2d 137 (Tex.Crim.App.

1973).

11 magistrate. No such charge may lie herein -- the local district

judges were unavailable and the officer and assista nt district

attorne y sought a search warrant from the nearest available

district judge. 31 Nor are we persuaded by Conine's contention that

district judges should be allowed to issue search warrants only

within those counties in which they are elected. District court

judges routinely serve in countie s outside their district, a

practice upheld as constitutional. 32

Con cluding that the district judge of the 62nd Judicial

District had jurisdiction to issue the search warrant for property

located in Red River County, we REVERSE and REMAND for further

proceedings consistent herewith.