Anyone being accused of committing a crime in the state of Texas has the right to a fair investigation process. Part of this fair process includes protection against illegal search and seizure. These rights are protected by the U.S. Constitution, and determine when police are able to search and obtain evidence. Understanding what constitutes illegal search and seizure is vital to protecting your rights when being accused of a crime.

What Is Illegal Search and Seizure?

The terms of an illegal search and seizure are defined in the Fourth Amendment to the U.S. Constitution. The Amendment states that you have the right to be secure against “unreasonable searches and seizures.” It further declares that all warrants must only be issued for “probable cause.”

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What Counts as “Probable Cause?”

The problem with illegal search and seizure arguments often focuses on what counts as “probable cause.” In general, the idea of probable cause means that a law enforcement officer must have a reason to suspect a crime has taken place.

One way to establish probable cause is through the issuing of search warrants. In most situations, a police officer will need a search warrant to conduct a legal search and seizure. A police warrant establishes probable cause because the warrant has to be signed by a judge, who will first listen to the evidence presented to the bench to determine if there is reason to search the person’s premises.

How Warrants Protect Your Rights

The Fourth Amendment guarantees that you have a reasonable expectation of privacy and the right not to be searched unless there is a good reason to violate that privacy. When a search warrant is issued, it clearly states that a judge has found probable cause to violate your privacy with a search warrant.

But just because a police officer has a search warrant does not mean they can search and seize anything they want. 

In order for a police officer to legally comply with a search order, they must follow these rules: 

  • They must only search the place specified in the search warrant.
  • They may only seize items specified in the warrant.

If a police officer has a search warrant for your home but does not have one for your place of business, yet your place of business is searched anyway, this may constitute an illegal search and seizure under Texas law.

Evidence Needed For a Search Warrant

Before a search warrant is signed by a judge, the police must demonstrate that there is some reason to suspect that you have been engaged in a criminal activity. This proof that the police must supply will make up the “probable cause” to justify signing the warrant.

The proof provided by the police must go beyond their belief that you are guilty of a crime. It is not enough for the police to state that they need to search your premises in order to prove that a crime happened. They must have evidence ready to back up their claims.

Some examples of proof that may be offered to obtain a search warrant include:

  • Someone claims to have heard you talking about committing the crime
  • Witnesses stating they saw you commit a crime
  • Officers seeing you engage in behavior that makes you suspicious, such as talking with other criminals
  • Other types of tangible evidence that may have been visible to the officers

When Do Police Officers Not Need a Warrant?

Although a search warrant is a great way to demonstrate that the expectation of probable cause has been met, there are legal circumstances in which a search and seizure can be conducted without a search warrant.

Checkpoints for sobriety and border searches do not need a search warrant. Many vehicle searches may also not need a search warrant. If you have had evidence of the crime out where an officer can clearly see it, the seizure of that evidence may be legal and not require a warrant.

Additional common situations that you can be searched without a warrant include:

  • The officers have the consent of the property owner to search the property.
  • A lawful arrest is being made and the search is linked to the arrest.
  • An emergency situation has threatened the safety of the public.

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What Is Considered a Legal Search During an Arrest in Texas?

If an officer arrests you in Texas and searches you as part of that arrest, your criminal defense attorney may be able to call into question whether you were subjected to a legal search and seizure during the arrest.

The first question that your defense attorney will likely try to establish is whether the police officer had a “probable reason” to arrest you. If they had an arrest warrant, the answer may be yes. But if you were arrested without a warrant out for your arrest, the area can be much more complex.

During an arrest, the police may be able to legally search you in the following circumstances:

  • The officers fear for their safety.
  • There is a reasonable suspicion that you could be carrying a weapon.
  • The arresting officer has requested backup but is currently alone
  • Your behavior seems threatening.
  • Multiple physically intimidating suspects are present.
  • Your surrounding seems suspicious.

As you can tell by looking at this list, much of the circumstances are left up to interpretation by the arresting police officer. For example, your criminal defense attorney may be able to argue that the “suspicious surroundings” were not suspicious enough to justify a search or that your behavior was not actually threatening.

What To Do if You Are a Victim of Illegal Search and Seizure in Texas

The laws regarding illegal search and seizure in Texas can be very complex, especially when you believe that the standard for probable cause was not met. If you believe that your Constitutional protection against illegal search and seizure was violated, contact our office today. At the Law Office of Brett Podolsky, we can help you examine the facts of the case and help you navigate the complex area of the law dealing with searches and seizures.