Search and Seizure in Texas: What You Need to Know
The founding fathers of the United States Constitution made clear in the 4th Amendment that Americans have the right to be free of unreasonable government searches and seizures. This is an important and powerful piece of criminal law, yet not enough people understand what this actually means.
Say, for instance, you’re taking a lovely hill country drive outside of Austin and a police officer pulls you over for speeding. If the cop then asks to search your car, do you have the right to refuse? Or if a cop knocks on your front door, are you required by law to let them in?
In this article, we’ll break down everything you need to know about search and seizure in Texas. Hopefully after reading this, you’ll have a clear understanding of your legal rights when it comes to this highly critical area of law.
Reasonable vs. Unreasonable Searches
As previously stated, federal and Texas state law protect people against “unreasonable” legal searches. But what is reasonable? Where is the distinction?
Yes, even in the law, there is some subjectivity involved in determining reasonableness, but typically a police officer’s search of your property will be deemed legally reasonable if:
1. You consent to the search. Remember, if a cop asks if they can search your house, bag, car, etc., you do not have to say yes. You can say no to any search. But if you do grant the police’s request, you cannot later argue that the search was unfair or illegal.
2. The police officer has obtained a court-issued search warrant. A warrant is a sworn document signed by a judge that explains why a police officer needs to search a specific area. Usually, the police argue in their warrant that they need to search a certain place to prove a crime has been committed. If the judge finds the request reasonable and agrees that the police officer has proven “probable cause,” then the police can search the area with or without your consent.
3. The search, though warrantless, falls into one of the legally recognized exceptions, which we will discuss below.
Legal Warrantless Searches
Police officers do not always need a search warrant to search a person’s property. However, for a search to be legal without a warrant or the consent of the owner of the property, one of the following must be true:
You are actively being arrested for another crime. In that case, a police officer can search your person.
The evidence is in plain view, such as on the passenger’s seat of your car.
The evidence is in a place where the defendant has no reasonable expectation of privacy. For instance, when you pull your trash out to the curb, it is now in a public space, and, legally, you no longer have a reasonable expectation of privacy regarding the contents of your trash. Yes, a cop can search your trash can without a warrant once it is in the street.
The police have good reason to believe that evidence will be destroyed imminently.
The police have probable cause to search a car. In this case, unlike with a house, they do not need a warrant. Probable cause is the standard at which there is enough evidence to believe that a person has committed a crime. So, if an officer claims to smell marijuana while giving you a parking ticket, then they can search your vehicle legally, even without a warrant.
If you’re arrested for DWI in Austin or any other offense where you would need to leave your car at the scene, and the police then need to have your car towed, the police are required to take inventory of the contents of your vehicle. If they find illegal items during this inventory, they can seize them. If you can find someone else to quickly collect your car to avoid towing, then they will not do a vehicle inventory.
If the police believe someone needs medical attention or is in serious danger, then the police may enter a property without a warrant. However, the search must be limited to addressing the perceived emergency.
The Exclusionary Rule
Sadly, the police sometimes seize evidence illegally—without consent, a warrant, or one of the warrantless exceptions. A proven criminal defense attorney in Austin with a keen understanding of the law, such as Chris Perri, can help assess if your search was fair. If your defense lawyer can prove that the search was unlawful, then they can argue in a Motion to Suppress Hearing that any evidence gathered during the illegal search should be excluded from the record. This is called the exclusionary rule.
Remember, all evidence obtained against a person must be obtained legally, or else it cannot be used in the court of law. This can be crucial for your defense.
Case Example
Let’s say you and your friends are camping at Bastrop State Park. A police officer approaches you and asks you to put out your campfire. You oblige. Next, the cop asks to search your tent. You have the right to say no.
Let’s say you do refuse the police officer, but they search anyway, without a warrant. They discover marijuana and mushrooms and arrest you for a felony drug crime.
This can of course be terrifying, but remember the fight is not over. Your first step should be to hire an attorney with extensive experience handling search and seizure issues. Your Austin defense lawyer may be able to argue that the search was illegal, and that all evidence gathered, such as the drugs, should be suppressed.
Even if the search is proven reasonable, a skilled criminal defense attorney can help you negotiate a favorable plea deal or fight for your freedom at trial.
How Chris Perri Law Can Help
Whether your car, house, body, or personal property was searched and seized, our firm can help. An award-winning Austin criminal defense lawyer with over fifteen years in practice across the Central Texas region, Chris Perri has helped countless clients protect their constitutional rights against unreasonable searches and seizures. If you want an attorney with a meticulous understanding of the law and a track record of success—call us at (512) 269-0260 or visit www.chrisperrilaw.com to schedule a free case consultation today.