Written by attorney Graham Thayer Williamson II

Texas Search and Seizure

The Texas law of search and seizure is governed only in part by the Fourth Amendment of the United States Constitution. Texas courts of law have held that Article 1, Section 9 of the Texas Constitution may provide greater or less protection than the Fourth Amendment, and the Texas legislature has enacted many statutory provisions dictating the practices and procedures that must be followed in making arrests and conducting searches. These statutes have been the subject of interpretation and application by Texas courts. As a result, the Texas law of search and seizure is distinctive. A SEARCH is by definition an invasion of privacy. Prior to Katz v. U.S. (1967), privacy was defined in terms of the trespass doctrine, but since then, a "reasonable expectation of privacy" doctrine has prevailed. Only what people themselves deem "private" and what society recognizes as private are protected. The Fourth Amendment does NOT protect against all invasions of privacy; it only forbids unreasonable invasions of privacy; and in the almost 40 years since Katz, the Supreme Court has held steadfast to a presumption of unreasonableness whenever privacy expectations are violated in a warrant-less search or surveillance situation. It is important to note that the issue of concern is privacy expectation, and not the actual intrusion (trespass), be it physical or electronic. In terms of Supreme Court jurisprudence, this means that a very strict interpretation of the Fourth Amendment is followed: "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 Warrant 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." In Katz, the government argued that it could police itself and that good intentions should outweigh any constitutional precondition for always getting a warrant, but the Supreme Court rejected those arguments. However, there clearly are exceptions, such as consent, emergency, search incident to arrest, motor vehicle, and inventory, as well as special circumstances in fires and disasters. This lecture explores some of those exceptions. Technically, the Fourth Amendment says that all searches are to be conducted under authority of a warrant (the warrant rule). Warrants can be issued to search premises (dwellings), vehicles, or persons. The Fourth Amendment also states that probable cause (the probable cause requirement) should form the basis of warrants, supported by oath or affirmation (see affidavits). There are different definitions of probable cause, from what a person of reasonable caution or prudence would believe in connection with a crime or criminal offender to what would make a reasonable person to more probably than not believe a guilty rather than innocent interpretation of facts, hearsay, or a combination of the two. The trend is toward the "more probable than not" test. For example, in informant law, the Aguilar test (1964) was established approving anonymous informant tips if (a) it could be shown the informant was reliable, and (b) some underlying information could be provided to show how the informant reached the information in their tip. This two-pronged test was replaced by a "totality of circumstances" test in Illinois v. Gates (1983) in which a reviewing magistrate uses practical common-sense, given all the circumstances set forth in the affidavit, to decide if there is a fair probability that contraband or evidence of a crime will be found in a particular place. Warrants must be executed promptly (within 48 hours in some states; at least within 10 days in other states) and not usually at night or on Sundays unless otherwise stated. They also become "stale" or too old to use after about 90 days (federal procedures may or may not be similar in some states). So-called "no-knock warrants" can be issued if the "exigent circumstances" test is met; i.e., evidence can be easily destroyed or flushed, a hostage situation exists, and the case involves explosives, emergencies, danger to officers, or unusual circumstances. All warrants, not just no-knock warrants, authorize the use of force to enter a dwelling if police are denied entrance or no one is there to admit them. The "demand and refusal" element of the "knock and announce" rule has been eliminated, however. A warrant must include a street address and description of the location; e.g., 110 S. Main, a two-story white house. A warrant for one side of a duplex does not authorize search of the other side, and the same is true of apartments. A warrant must describe as fully as possible all the things to be looked for in connection with a crime that has been committed or is about to be committed. The descriptions must be specific; e.g., one black 21' Panasonic TV, serial number 63412X. The described item(s) are usually provided in boilerplate fashion on the warrant form itself (with an indication to strike inapplicable paragraphs). Finally, a valid warrant must be signed by a judge. The most important thing about searches is that their scope must be narrow. General, exploratory searches are unconstitutional, and no warrant should be used for anything having the appearance of a "fishing expedition." A SEIZURE is by definition the deprivation of liberty, or the enjoyment in exercising dominion or control over a thing, be it property or person (see Stop and Frisk). Police can temporarily seize private property for about 14 days (this varies from jurisdiction to jurisdiction), and usually hold it indefinitely if it is material evidence in a criminal case. Temporary seizure or detention of a person is allowed for shorter periods of time, usually 72 hours. Asset forfeiture laws apply to criminal cases, and among other things are intended to show that crime does not pay. While these are technically civil law procedures that exist on both federal and state levels, seized property can be auctioned off for money to fund the criminal justice system, or in some cases, used by the police departments themselves in operations; e.g., as an undercover vehicle. With asset forfeiture, the crime must fall under some version of a R.I.C.O. (Racketeer Influenced Corrupt Organization) Act, or be part of on ongoing criminal enterprise designed to be profitable, such as drug trafficking. In most cases, a person who has had their assets seized under forfeiture laws must make a showing of good cause why the property should be returned in civil court within 90 days. The EXCLUSIONARY RULE and common law time frames provide protection against unreasonable seizures. The purpose of the exclusionary rule (briefly, evidence illegally obtained cannot be legally admitted), first created by Weeks v. U.S. (1914) and made applicable to the states via Mapp v. Ohio (1961) is often misunderstood. It is NOT designed to protect the constitutional rights of suspects, but to penalize police and deter police misconduct. The exclusionary rule is a judicial mandate designed to help professionalize the police; it's a social experiment, not a guarantee of constitutional safeguards. It's a rather harsh rule, the reasoning being that it is better to let some of the guilty go free so that the majority of people would benefit from more thorough and professional police work. The Court appears to be waiting for social science to answer when this goal is reached, but it represents an under-researched topic in in justice studies, if indeed, it is researchable at all. The exclusionary rule also subsumes the FRUIT OF THE POISONOUS TREE DOCTRINE, first established in Silverthorne Lumber Co. v. U.S. (1920). According to this doctrine, not only is evidence illegally seized inadmissible, but any evidence or testimony obtained later as a result of the illegally seized evidence is inadmissible. This has been somewhat weakened by the good faith exception (explained below), but it basically means that any secondary, incriminating facts or leads discovered later in a case from an earlier, illegal seizure are inadmissible. If the "tree" is tainted, the "fruits" are also tainted. This usually results in not enough evidence to go to trial. As you can see, what may look simple to you gets pretty complex. As your criminal defense attorney I will insist that all information be provided and that you and I walk through all this information as we discuss and proceed on your case.

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