Written by attorney Nicholas Ryan Poehl

The Difference Between Search and Seizure

What’s the Difference between Search and Seizure?

The Texas law of search and seizure is governed 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 sometimes provides 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, and may affect your case. As a result, the Texas law of search and seizure is important for every criminal defendant to know.

A “search" is, by definition, an invasion of privacy. Texas law uses a "reasonable expectation of privacy" doctrine to govern what is private and what is not, and thus, what is protected, and what is not. Only what people themselves deem "private" and what society recognizes as private are protected. The Fourth Amendment (U.S.) does NOT protect against all invasions of privacy; it only forbids “unreasonable" invasions of privacy; and in the time since adoption of the reasonable expectation of privacy standard, 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 various cases, the government has always argued that it could police itself and that good intentions should outweigh any constitutional precondition for always getting a warrant, but the Supreme Court has roundly rejected those arguments, with certain clearly defined exceptions. Today we’ll discuss these exceptions.

The Fourth Amendment says that all searches are to be conducted under authority of a warrant, but in actuality, the courts have carved out many exceptions we'll cover at a later time. For now though, we'll concentrate on the basics of how warrants work. Warrants can be issued to search premises (dwellings), vehicles, or persons. The Fourth Amendment also states that probable cause should form the basis of warrants, supported by oath or affidavit. There are different definitions of probable cause, but the trend is toward a "more probable than not" test; that is, the facts known make it more probable than not that a crime has occurred or evidence will be discovered.

Warrants must be executed promptly (usually within 48 hours, but check your local statutes to be sure) and usually not at night or on Sundays, except under certain circumstances. They also become stale or too old to use after a certain period. So-called "no-knock warrants" can be issued if the "exigent circumstances" test is met; if evidence can be easily destroyed or flushed, a hostage situation exists, or the case involves explosives, emergencies, danger to officers, or other 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 for premises must include a street address and description of the location; e.g., 110 S. Main, a two-story white house. 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. 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. Police can temporarily seize private property for a brief period (depending on the 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. 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 provides protection against unreasonable seizures. The purpose of the rule (briefly, evidence illegally obtained cannot be legally admitted), is often misunderstood. Its primary focus is not 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; thus, it’s a penalty on law enforcement, not a guarantee of constitutional safeguards. Its application can have far-ranging consequences, the reasoning being a long held maxim of U.S. common law, 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 exclusionary rule also subsumes the “fruit of the poisonous tree" doctrine, which states that not only is evidence illegally seized inadmissible, but any evidence or testimony obtained later because of the illegally seized evidence is also inadmissible. It basically means that any secondary, incriminating facts or leads discovered later in a case from an earlier, illegal seizure are inadmissible. In other words, if the search was bad, anything that results from the search (with a few exceptions), is also bad.

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