The Basics Of Search And Seizure In Texas

With the continued popularity of television cop shows, many people understand their Miranda rights: you have a right to remain silent, anything you say can be used against you and you have the right to an attorney.

However, few people fully understand their rights under the Fourth Amendment of the United States Constitution. The freedom from an unreasonable search and seizure guaranteed by the Constitution governs when the police may lawfully stop and search you. As such, this article will briefly describe the protections granted by the Fourth Amendment, when the police may conduct a search, and provide some tips for dealing with searches.


The Fourth Amendment of the United States Constitution reads in pertinent part:

"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."

Essentially, the Fourth Amendment protects you from an unreasonable search and seizure by the police.

It also sets forth specific requirements for law enforcement to satisfy in order to conduct searches. In order to enter a home or other privately owned dwelling, the police must obtain a warrant signed by a judge that clearly explains the reasons for the search (including the possible crime that has been committed) and the specific location(s) and items to be searched. Except in limited circumstances, police may not conduct a search or seize private property without first having a warrant.


There are several instances where law enforcement may conduct a search without a warrant. A warrantless search may be legal if you do not have a reasonable expectation of privacy in the item or place being searched or if the search is reasonable under the circumstances.

Warrantless searches commonly occur when a suspect is first detained or arrested. This search is usually conducted in public or when contact is first initiated. If an officer has a reasonable suspicion of criminal activity, he or she can stop a person and initiate a limited, "stop and frisk" search to check for contraband and weapons. This type of search is common referred to as a "Terry pat down" based on the Supreme Court caseU.S. v. Terry.

After an arrest is made, officers may conduct a wider, protective sweep to search for weapons, illegal drugs or other evidence.

No warrant is necessary if you consent to having your person or premises searched. If you allow the police into your home, or allow them to search other private areas (such as a car or locker), you may forfeit any reasonable expectation of privacy. Moreover, the police do not have a duty to advise you of your right to decline such searches or that any incriminating evidence that is found during a consent search may be used against you.

Another exception to the warrant requirement is that officers may seize and inspect items that are in plain view. Property that is not hidden or can be seen without moving other items is considered to be in plain view and potentially subject to seizure by police.


Before a criminal trial is held, your El Paso criminal defense attorney may ask the court to review the evidence against you to determine whether it survives Fourth Amendment scrutiny. Under the Exclusionary Rule, evidence obtained in violation of the Fourth Amendment can be suppressed, meaning that it will be excluded from trial and the prosecution will be unable to present it to the jury.

The Exclusionary Rule requires the suppression of evidence directly linked to an illegal search, as well as any evidence derived from the search, better known as "fruit of the poisonous tree." In essence, incriminating evidence, even a confession (should you choose to make one prior to speaking with a Texas criminal defense lawyer) that was obtained in an unconstitutional manner may be suppressed and the prosecution will be unable to use it against you.

Before a court may exclude evidence obtained by the police, it must determine whether there was a reasonable expectation of privacy in the area or items searched. As the Supreme Court in U.S. v. Katzexplained, "what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection...but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

There has been considerable debate over what constitutes a search and the limits of privacy with regard to government intrusion. Traditionally, the Supreme Court has viewed the act of extracting personal items from private spaces (so it is in the government's view) as a search. A Fourth Amendment seizure occurs when government conduct meaningfully interferes with an individual's possessory interest in property.


A search may be particularly invasive and unfair, but depending on the circumstances, it may be against your best interests to resist such a search. If the police ask to enter your home or request to look inside the trunk of your car, you have the right to decline these searches. However, if you are being detained or are engaged in a physical confrontation with the police, you run a significant risk of being injured by fighting the search or facing additional criminal charges even though you may have grounds for to exclude the evidence later.

While the preceding is not intended to be legal advice, you do have rights against unreasonable searches. If the police have searched you, or you believe you are under investigation for a crime, contact an experienced Texas criminal defense attorney.