The Texas and United States Constitutions govern searches and seizures of persons and their property and possessions. These provisions generally require that seizures be reasonable and searches be premised on probable cause. Although Texas law prefers searches and seizures by warrant, several exceptions exist allowing, for example, arrests for offenses committed in the presence of an officer or searches incident to an arrest. The rules for searches and seizures in Texas are ultimately subject to a dynamic interplay between statutory authority and court decisions interpreting the Fourth Amendment of the United States Constitution and Article I § 9 of the Texas Constitution.
- What is the Fourth Amendment in Texas? The Fourth Amendment to the Constitution of the United States creates safeguards against unreasonable searches and seizures, providing:
The the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Similarly, these rights are enshrined in Article I § 9 of the Texas Constitution, which provides:
The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable seizures or searches, and no warrant to search any place or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
The Texas Court of Criminal Appeals has held these provisions are identical and to be interpreted harmoniously but recognized the Texas Constitution may grant greater protection than those of the Fourth Amendment.
- What are 3 exceptions to the 4th Amendment? Three common exceptions to the Fourth Amendment warrant requirement are Exigent Circumstances, the Plain View Doctrine, and searches and seizures at the border. In an Exigent Circumstances example, police may enter a person’s home without a warrant in emergency situations, like to render aid to an injured person or to protect an individual from imminent injury. The Plain View doctrine allows the warrantless seizure of evidence of a crime observed in plain view. Finally, law enforcement may conduct routine searches and seizures at the border without probable cause or warrant as part of the inherent right of a sovereign.
WHAT ARE 5 MAJOR EXCEPTIONS TO THE WARRANT REQUIREMENT?
Five major exceptions to the Fourth Amendment warrant requirement are:
- Search incident to arrest, allowing the warrantless search of a lawfully arrested individual’s person.
- Inventory search, allowing the warrantless search of a person or vehicle for inventory and safekeeping of property upon a lawful arrest.
- The Exigent Circumstances exception, allowing officers to enter a home without warrant to meet an emergency situation.
- the Community Caretaking exception, allowing the police to discharge non-criminal caretaking functions like checking in on disabled vehicles.
- The Plain View Doctrine, allowing the warrantless seizure of contraband discovered in plain view.
- What is not protected under the 4th Amendment? The Fourth Amendment does not protect searches where the person has no Reasonable Expectation of Privacy. For example, a passenger arrested for marijuana found under their seat has no reasonable expectation of privacy in the motor vehicle if they are riding in a friend’s car. The Fourth Amendment would not apply in this scenario.
- What are the requirements for a search warrant in Texas? Search warrant requirements are outlined in Chapter 18 of the Texas Code of Criminal Procedure. A Texas search warrant must be issued by a neutral and detached magistrate upon an affidavit in writing and under oath that sets forth facts establishing probable cause. The search warrant must also describe the place to be searched or the thing to be searched for and seized.
WHAT IS THE FIFTH AMENDMENT IN TEXAS?
The Fifth Amendment to the Constitution of the United States provides protections to individuals subject to criminal prosecution. These provisions provide, in relevant part:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . .
Similar protections are found in Texas Constitution Article I § 10, which protects the right against self-incrimination, Article I § 14, which preserves the right against Double Jeopardy, and Article I § 19, which analogizes Due Process with the state standard Due Course of Law.
- What is considered an unreasonable seizure? An unreasonable seizure is a seizure without a warrant or valid warrant exception, a seizure without probable cause, or a seizure that exceeds its authorized scope. An unreasonable seizure can be challenged in a Motion to Suppress and through operation of the Exclusionary Rule.
- What prohibits unreasonable searches and seizures? The Fourth Amendment to the United States Constitution and Article I § 9 of the Texas Constitution prohibit unreasonable searches and seizures. Unreasonable searches and seizures can be challenged with a Motion to Suppress to exclude the illegally obtained evidence.
WHAT IS AN EXAMPLE OF AN ILLEGAL SEARCH AND SEIZURE?
An example of an illegal search and seizure is if a police officer goes up to a person for no reason and detains them and searches their pockets. An officer must have reasonable suspicion of some criminality to temporarily detain a person for investigation, known as a Terry Stop. If the officer unreasonably exceeds the scope or length for a temporary investigative detention, then this also becomes an illegal seizure.
- What are the exceptions to a search warrant in Texas? Texas warrantless search exceptions include: (1) Searches incident to a lawful arrest, (2) Searches of a vehicle incident to the lawful arrest of the occupant or when there is probable cause the vehicle contains contraband or evidence of a crime, (3) Routine and reasonable inventory of the contents of vehicles lawfully in police custody, (4) Searches of abandoned property, (5) Searches of open fields, (6) Searches that are consented to, (7) Evidence or contraband in plain view, and (8) searches pursuant to Exigent Circumstances.
- How long does it take for a search warrant to be issued in Texas? It can take several minutes to several days for a search warrant to issue in Texas, depending on the circumstances. An officer must first create an affidavit alleging specific articulable facts and then present his application to a magistrate who then reviews the document to decide whether there is probable cause. The length of this process varies depending on the complexity of the investigation, the crime alleged, and the availability of the magistrate.
HOW MANY DAYS DO YOU HAVE TO EXECUTE A SEARCH WARRANT IN TEXAS?
A search warrant must be executed in 3 days exclusive of the day of its issuance and the day of its execution pursuant to Texas statute. This language means law enforcement must execute a warrant by midnight on the fourth day after the day it was issued. For example, a warrant that was issued on February 11th at 2:30 p.m. must be executed by midnight on February 15th.
- Can police enter private property in Texas? Police cannot enter a home without consent or a warrant, unless there are Exigent Circumstances like imminent danger. However, police may walk up a driveway or sidewalk to a person’s house and knock on their door much like any neighbor or delivery person unless there are barricades or conspicuous signals this is not welcome, like a locked fence or visible signs stating no one may enter the property.
- What constitutes a police seizure? A police seizure occurs when there is physical force or a display of authority resulting in the involuntary detention or restraint of a person’s freedom to leave the encounter. The key factor constituting a police seizure is if under the totality of circumstances, a reasonable person in that situation would believe they were not free to leave or terminate the encounter.
WHAT ARE TWO SITUATIONS WHEN A SEARCH WARRANT IS NOT NECESSARY?
A search warrant is not necessary when a person consents to the search. A search warrant is also not necessary to enter a vehicle when an officer observes obvious contraband in plain view, like a bag of marijuana and a weapon on the seat or even the obvious odor of marijuana emanating from the vehicle. These are two of the most common exceptions to the requirements for a search warrant.
- Is a traffic stop a seizure under the 4th Amendment? Yes, a traffic stop is a seizure under the Fourth Amendment to the United States Constitution as it is a restraint of a person’s freedom to leave the encounter. A police officer must usually have reasonable suspicion or probable cause of some criminal offense or it is an illegal seizure subject to suppression of evidence by application of the Exclusionary Rule.
- What is the Exclusionary Rule for unreasonable searches and seizures?he Federal Exclusionary Rule is a court remedy that excludes evidence obtained in violation of the US Constitution from a criminal trial. The Texas Exclusionary Rule is codified by statute in Texas Code of Criminal Procedure Article 38.23 and prohibits the introduction of evidence obtained by police or OTHER person in violation of any law. The Texas Exclusionary rule is broader than its federal counterpart and applies to illegally-obtained evidence by private actors.
WHAT IS AN EXAMPLE OF A PROBABLE CAUSE?
A common example of probable cause is when an officer smells the obvious odor of marijuana emanating from inside a vehicle. This gives an officer probable cause to search the interior of a vehicle and reasonable suspicion to detain the motorist for investigation.
- What searches are illegal? Searches conducted without a warrant or valid warrant exception, without probable cause, or that exceed their authorized scope are illegal. Illegal searches are subject to exclusion by a Motion to Suppress Evidence.
- What are the 3 exceptions to the exclusionary rule? Three exceptions to the exclusionary rule are:
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- Attenuation of the Taint, which applies when there are intervening factors to the initial illegality, like discovering the suspect had a valid arrest warrant, or a long passage of time that attenuates the taint of the Fruit of the Poisonous Tree.
- Inevitable Discovery, which excuses the initial illegality if the evidence would have been eventually discovered lawfully, like during a vehicle inventory. Inevitable Discovery is a valid exception to the Federal Exclusionary Rule but not the Texas Exclusionary Rules.
- Independent Source, which allows the introduction of illegally obtained evidence if it was also contemporaneously obtained by other lawful means.
WHO CAN ISSUE A SEARCH WARRANT IN TEXAS?
A neutral and detached magistrate can issue a search warrant in Texas. Texas Code of Criminal Procedure Chapter 2 Article 2.09 defines who is considered a magistrate for this purpose in Texas, including Justices of the Texas Supreme Court, Judges of the Texas Court of Criminal Appeals, district court judges, and certain appointed judges in several large counties.
- Can police search your car without a warrant in Texas? Yes, police can search a car without a warrant if there is probable cause to believe the car contains contraband such as a controlled substance, drugs, and an illegal weapon, or evidence of criminal activity. Police can also search a vehicle incident to the motorist’s arrest if the vehicle compartment is within the motorist’s reach or there is reason to believe the vehicle contains evidence of the crime of the arrest. Police can also search a car as part of the routine inventory of a lawfully impounded vehicle or during asset forfeiture proceedings.
- What is probable cause to search a vehicle in Texas? Probable cause exists when the totality of the circumstances within the officer’s knowledge would lead a reasonable and prudent person to believe they will find the fruits, evidence, or instrumentalities of a crime, including a misdemeanor or a felony, such as Robbery, domestic violence Assault, or Theft. Probable cause is based on objective facts and an officer can use his own senses, a narcotic dog, or corroborated evidence of a reliable informant to substantiate a search of a vehicle in Texas.
WHAT TO SAY WHEN A COP ASKS TO SEARCH YOUR CAR?
A person should politely yet firmly say “no” if an officer asks to search their vehicle and then ask if they are free to leave. Refusing a search will preserve potentially crucial legal defenses while consent waives these grounds for Defendants in Texas.
- Can Texas Game Warden search without warrant? A Texas Game Warden is bound to the same rules as any law enforcement officer when it comes to warrantless searches. A game warden cannot search a home without a warrant or exigent circumstances and can similarly not detain an individual without reasonable suspicion. A game warden may be able to, however, conduct a warrantless motor vehicle search if supported by probable cause.
- Texas CCP warrantless search and seizure? The Texas Code of Criminal Procedure generally prefers searches and seizures by warrant but allows for several exceptions to this requirement. For example, an officer can seize contraband discovered in plain view, or search an individual incident to a lawful custodial arrest. The prosecutor has the burden of proving a warrantless search meets a warrant exception and is otherwise valid. Illegal searches and seizures can be challenged by a Motion to Suppress Evidence in Texas.
CAN COPS SEARCH YOUR PHONE IN TEXAS?
Police cannot search a person’s phone in Texas without a warrant or the owner’s consent. Police must obtain a search warrant before searching a person’s phone if the owner refuses to allow the search.
- What are Exigent Circumstances in Texas? Exigent Circumstances are an exception to the warrant requirement that allows police to enter a home or conduct a warrantless search in certain volatile, emergency situations. This exception is similar to the Hot Pursuit exception allowing officers to enter a house when they are in hot pursuit of a felon for public safety purposes. In these scenarios, the prosecutor must prove Exigent Circumstances or the search is presumed unlawful and subject to suppression of evidence.
- What are Exigent Circumstances examples? An Exigent Circumstances example is when an officer enters a house to rescue a helpless infant from a house fire. Another Exigent Circumstances example is when an officer enters a house to provide emergency aid to a shooting victim or to prevent a murder. Texas courts would probably recognize these as valid exceptions allowing for the introduction of any evidence obtained pursuant to these episodes.
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