It can be both frightening and confusing when police come to search your vehicle and seize your property. It can also spell legal trouble for anyone caught in this unfortunate but common position.
Thankfully, both the State of Texas and the United States Constitution have safeguards against unreasonable searches and seizures. It’s important to understand your rights and to get the legal help you need so that you can protect yourself against illegal search and seizures.
- 1 Laws of Vehicle Search and Seizure in Texas
- 2 When Is a Search in Texas Considered Lawful?
- 3 Exceptions: When You Can Be Searched Without a Warrant
- 4 When Is a Search and Seizure Considered Unreasonable in Texas?
- 5 Specific Examples of Reasonable and Unreasonable Search and Seizure
- 6 Terry Stop-and-Frisk Rule
- 7 What is the Exclusionary Rule?
- 8 What Is a Motion to Suppress?
- 9 In Closing
Laws of Vehicle Search and Seizure in Texas
Search and seizure laws began with the Fourth Amendment of the US Constitution. Texas law declares the following:
Sec. 9. SEARCHES AND SEIZURES. 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.
(Feb. 15, 1876.)
When Is a Search in Texas Considered Lawful?
Both Texas and US legal code require that law enforcement officials have a valid search warrant. The search must also not fall within a recognized exception, something we will expand upon shortly.
A search warrant is a written order issued by a magistrate (a type of judge), directing police officers to search a particular place for specific types of evidence. A judge may only issue a warrant if there exists probable cause to believe a crime has been committed.
Exceptions: When You Can Be Searched Without a Warrant
An officer may not enter or search your home, search your vehicle or seize property without a valid search warrant unless there exists one or more of the six exceptions to this rule. These exceptions include:
1. Evidence Seized in Plain View
This applies when officers are lawfully in a position to view an item first-hand.
2. Evidence Seized After the Person Consents to a Search
Officers are permitted to search freely and seize potential evidence if the owner gives personal consent for the search. This should serve as a potent reminder to anyone in this position to take special care when considering giving law enforcement officers permission to search their person or property. We advise our clients to ALWAYS REFUSE to give consent for an officer to search you, your home, your car, or your property. NEVER CONSENT TO ANY SEARCH!!!!
3. Evidence Seized On a Person Due to Reasonable Suspicion that a Crime has Occurred or Will Occur
Reasonable suspicion means that any reasonable person, given the same or similar evidence and circumstances, would suspect that a crime was in the process of being committed, had been committed or was going to be committed very soon.
4. Evidence Seized in an Automobile Due to Reasonable Suspicion
SImilar to the above exception, but applicable instead to a crime involving an automobile.
5. Evidence Seized During a Hot Pursuit
Officers can search individuals (or their automobiles) who are suspected of fleeing after committing a felony. Minor crimes and misdemeanors do not apply.
Additional Considerations: Exigent Circumstances
These are circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) is necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.
Examples of this include occasions where law enforcement officials need to gain entry to avoid the destruction of property or evidence, save a human life, witness and avert a crime in progress or one about to occur, provide emergency assistance to an occupant, engage in hot pursuit or enter a burning building to put out a fire and investigate its cause.
When Is a Search and Seizure Considered Unreasonable in Texas?
A search and seizure not preceded by a signed, court-issued warrant or one that does not fall into the above categories of exception, is considered unreasonable and unlawful. In such cases, the subject should pursue legal counsel from a qualified attorney.
Every day, US citizens fall victim to unreasonable searches and fail to understand their rights in the process. This leaves them open to the consequences of these searches, including time in court, legal fees, criminal charges, a permanent felony record, fines, jail time, loss of licenses, and much more.
Specific Examples of Reasonable and Unreasonable Search and Seizure
Several examples of each exist, too many, in fact, to explore here. But to better familiarize ourselves with the concept, let’s take a look at a handful of reasonable and unreasonable searches and seizures.
Reasonable Searches and Seizures
- While performing a routine traffic stop, an officer sees in plain sight a container of drugs, drug paraphernalia, a weapon or other illicit material
- An officer performs a search of one’s person, car or home when they have a clear, reasonable suspicion or eyewitness testimony of the individual committing a crime
- Seizing property from an individual’s person or automobile when a legal arrest of the individual is already in progress
- Searching certain parts of an individual’s car where a weapon could be hidden if they have a reasonable and explicable cause for concern
- If an officer asks an individual if they have drugs, a weapon or other possibly illicit materials in their car or home and the person answers “yes,” the officer may enter the home or search the vehicle. The answer gives them probable cause.
- Any time an individual agrees to an officer’s request to search their vehicle.
- Officers recently witnessed the individual committing a crime
- Any time the police have a signed court-issued search warrant
Unreasonable Searches and Seizures [H3]
- Arresting an individual without probable cause
- Stopping a driver without a reasonable suspicion of a traffic violation
- Establishing a highway checkpoint with the primary purpose of discovering illegal drugs during random searches
- Searching a vehicle without probable cause, no matter the location
- Detaining someone without the ability to reasonably articulate a suspicion of criminal activity
- Entering and searching a home or automobile without permission or a warrant, and without there being a crime or emergency situation in progress
- Seizure of one’s personal property without a warrant, an exception, and no reasonable articulable suspicion and probable cause
- A search of premises or seizure of property done simply to intimidate or coerce a subject into admitting guilt or wrongdoing
- Seizure of property that an individual has a legal right to possess, such as a licensed, safely stored firearm or hunting rifle, or other materials otherwise not considered dangerous unless directly related to a crime either recently committed or in progress
Terry Stop-and-Frisk Rule
One of the most important and often controversial rules surrounding search and seizure is the Terry Stop-and-Frisk Rule. An officer of the law may conduct a brief investigative detention, or “Terry stop (aka “pat down”) when he or she has a reasonable suspicion to believe that an individual is involved in criminal activity.
This must be interpreted in light of the total circumstances involved. The officer must be able to state clearly, the details of the circumstance that justify a reasonable suspicion for the detention, and not merely a hunch.
What is the Exclusionary Rule?
The Exclusionary Rule prevents the government from using most evidence gathered during an unreasonable search or seizure. This means that even if evidence would otherwise be considered vital to the prosecution and to the circumstances of the case, it cannot be used because it was obtained by unlawful means.
For instance, if equipment for the manufacture of drugs were found in someone’s home during an unwarranted and unreasonable search, the judicial system may exclude this evidence from court proceedings.
Directly connected with this rule is something often called the fruit of the poisonous tree. This refers to otherwise valid evidence discovered through unreasonable means. For example, if an officer performs an illegal search of a man and while talking with him, the man declares that someone else has illegal materials in their possession, this would also be inadmissible.
What Is a Motion to Suppress?
Brother to the Exclusionary Rule, a motion to suppress evidence is a motion filed on behalf of a client by a defense attorney, in which the judge is asked to throw out evidence because it was obtained in violation of either the US Constitution or a Texas law.
Interestingly, in most US states, a defendant can only have evidence suppressed if police seized it in violation of the constitution. However, Texas has a more expansive law allowing defense attorneys to suppress not merely evidence taken by the police, but evidence obtained by anyone. This applies not only to violations of the constitution, but also in instances where any other state law has been violated.
The defending attorney may file a motion to suppress during the pretrial stages of the criminal proceedings. This means it can be filed before trial begins and even as late as the day of the trial. Whether the motion is accepted will depend on the specific circumstances surrounding the case itself and the ability of the defense team to prove the evidence was obtained wrongfully.
Your right to both avoid and defend yourself against unreasonable searches and seizures is an integral part of your liberty and protection as both a United States and Texas citizen. Explore your rights and the current laws surrounding search and seizure. Always hire an experienced attorney to fight for your rights if you believe you’ve been the victim of an unreasonable search or seizure.
State of Texas
Title 1. Code of Criminal Procedure, Chapter 18. Search Warrants
Diane Burch Beckham
Getting Evidence from Cars: September – October 2018
Texas District and County Attorneys Association
Diane Burch Beckham
Warrantless Search and Seizure
Distinguishing Exigent Circumstances from Community Caretaking: January – February 2011
University of Texas at Austin
Tarlton Law Library: Jamail Center for Legal Research
The Papers of Justice Tom C. Clark: Civil Liberties and Civil Rights Cases of the US Supreme Court
Mapp v. Ohio 1961
Cornell Law School
LII: Legal Information Institute
Unreasonable Search and Seizure
Cornell Law School
LII: Legal Information Institute
Court of Criminal Appeals of Texas
Keasler, J. filed this dissenting opinion, joined by Hervey, J.
NOS. 1022-00 and 1023-00
The State of Texas v. LEO STEELMAN and IAN STEELMAN, Appellees ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS TAYLOR COUNTY
Court of Criminal Appeals of Texas
JOHN LEZELL BALENTINE, Appellant v. The State of Texas ON DIRECT APPEAL FROM POTTER COUNTY
Washington on the Brazos
CONSTITUTION OF THE REPUBLIC OF TEXAS, 1836
The Texas Constitution
Article 1. Bill of Rights
Ben has vast experience in defending criminal cases ranging from DWIs to assault, drug possession, and many more. He has countless criminal charges dismissed and pled down. Among many other awards, one of the Top 10 Criminal Defense Attorneys in Texas and winner of Top 40 under 40.