What is a Search Warrant? Article 18.01 of The Texas Code of Criminal Procedure defines a search warrant as: (a) A "search warrant" is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order.
When is a Warrant Required?
Property that is within your house or on your property is generally considered to be private, and thus the 4th Amendment guarantees you a reasonable expectation of privacy. If the police have to enter onto your property in order to get a look at the evidence or other property that they wish to use in court, they generally have to obtain a search warrant based on probable cause prior to entering your residence. Probable cause is defined as specific and articulable facts that would lead a reasonable person to believe that a crime has been committed, or is about to be committed. However, there are certain circumstances, like stopping suspects from destroying evidence, in which police can search and seize your property in your home without a warrant (i.e flushing drugs down the toilet.) This is because the situation itself demands prompt action by the police. This type of scenario is called “exigent circumstances” and this topic will be discussed later in this article.
So, now that you know the general rule, what are the gray areas? In most situations, law enforcement officers are allowed to observe, take photographs, including from the air above your home, in order to get enough information to get a warrant. The Supreme Court has rules that visible light photography is not considered a search. However, when listening to conversations, police cannot use hi-tech equipment without rendering the eavesdropping an illegal search and seizure. Listening devices and infrared cameras and other eavesdropping devices are considered searches under the 4th amendment. For example: the police can sit in the street and watch your house for days at a time without a warrant, but they cannot use thermal imagining without a warrant.
Generally speaking, the more sophisticated the listening or photography equipment is, the more likely it will be considered a search and the police will be required to obtain a warrant.
When a Warrant Isn't Needed
Despite the general rule, the police may enter and search your home, and or seize evidence of a crime or contraband, like drugs, without a warrant under certain circumstances:
• Consent: This is the most common, and I will NEVER understand why so many citizens give the police consent to search their person, vehicles, and homes. Just say NO! If you're the homeowner and the police ask if they can search the house and you give them consent to search, they can search the home without a warrant. Generally, children, minors, and temporary guests can’t give consent to search. Also, if you have a roommate, he or she may give the police permission to search the common areas of your house, like the kitchen, but he or she can't give consent for the police to search your private living space, such as your bedroom. Once consent is given, anything they find in your home can be used against you and you can't challenge the legality of the search and seizure.
• Search Incident to a Lawful Arrest: If you are being arrested, the police have the right search you and the immediate surrounding area for weapons, contraband, and even make a "protective sweep" of the house. This serves two purposes: 1) to protect the arresting officer by allowing the discovery of weapons within the reach of the arrestee, and 2) to preserve evidence by allowing its seizure before it can be destroyed or concealed by the person arrested.
• Exigent circumstances: These are circumstances where there's no time to get a warrant because there's an immediate threat or danger of someone getting hurt or the destruction of evidence. For example, if the police make arrest in the front yard and the homeowner is alerted to their presence, the police may enter the home if they have a reasonable belief that the homeowner is destroying evidence or poses a threat to the officers safety or the safety of others.
* Plain View if an officer is on your property acting in the lawful course of their duties (perhaps pursuing a felon), officer may seize any contraband that is in plain view of the officer without a search warrant. In Texas, police officers love to use a technique they call “knock and talk.” In short, the officers knock on your door, inform you that they are getting to know the people in the neighborhood. Then they politely ask you for permission to enter. Once inside, anything that the officers observe in plain view is fair game without a warrant.
Pay Attention and Don’t Argue With the Officers
If the police show up at your door with a search warrant, let them in. Stay calm. If the police have a warrant, they are legally entitled to search the areas authorized by the warrant. If you interfere with the search, you will be arrested. Ask the officers to provide you with a copy of the warrant and read it carefully. Watch them as they search your home and make sure they restrict the search to the area(s) specified in the warrant. Try to keep written notes about where the officers searched and what items they seized. Don't argue with them. If they search in an area where they're not supposed to or seize something not listed in the warrant, you can always challenge the search and seizure later if you're charged with a crime.
If you have any questions about search and seizure, a drug case, or any criminal law matter please contact the Law Office of G. Thayer Williamson.