Search and Seizure in Texas—The Basics

Search and Seizure

Understanding Your Rights under the Fourth Amendment

If you are under investigation for a criminal offense, or if you have been pulled over by police officers for any type of infraction, there may come a point where the officers want to conduct a search of your home or vehicle. It’s a longstanding principle and one of the essential components of our democracy that citizens shall be free from unreasonable searches and seizures. It’s right there in the 4th Amendment to the U.S. Constitution, ratified in December, 1791.

But exactly what protections the 4th Amendment provides can often be the subject of much uncertainty and confusion. What does a law enforcement officer need to initiate a search or seizure? Are there exceptions to the rules? This blog outlines the law and rules of search and seizure in Texas.

Your Protections under the Fourth Amendment

The Fourth Amendment reads as follows:

“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.”

As initially written and construed until 1961, the Fourth Amendment only applied to actions by the federal government. In Mapp v. Ohio (1961), the U.S. Supreme Court held that the Fourth Amendment also applied to state and local government actions.

The language of the Fourth Amendment specifically prohibits “unreasonable” searches and seizures, but the courts have more often focused on those factors that make a search “reasonable.”

Those include:

  • The existence of probable cause and a warrant based on that probable cause
  • The specific circumstances that may justify a search without the need for a warrant

One of the first issues a judge will address when considering whether to issue a search warrant is whether or not the subject of the search had a “legitimate expectation of privacy” in the place or thing to be searched or seized. For example, a person who operates a business open to the public would not have a reasonable expectation of privacy in those areas open to the public. A police officer could conduct a search of those parts of the property without a warrant. However, there would be reasonable expectation of privacy in any private offices at the business. The search could not extend to those rooms without a warrant.


When a Warrant is Not Necessary

There are six specific exceptions to the requirement that law enforcement officers have a valid warrant to conduct a search:

  • If the evidence seized was “within plain view”
  • If the evidence was obtained as part of a lawful arrest
  • If the suspect consents to the search
  • If the officer has a reasonable suspicion that a criminal act is underway or has been committed—the officer must, however, be able to articulate specific facts that reasonably lead to that conclusion. Even so, the officer may only stop and frisk a person.
  • If the evidence is obtained after “hot pursuit” of a suspect—the fear here is that the suspect may destroy evidence if the police officer has to wait for a warrant to conduct a search
  • If the evidence is in a motor vehicle and the police officer had probable cause to believe that the vehicle contained contraband, evidence, instruments or proceeds of a criminal act


Contact the Experienced Criminal Defense Attorneys at Bailey & Galyen

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