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What Counts As Illegal Search and Seizure In Texas?

July 21, 2017 By Jeff King

Texas search and seizure laws are far from clear. Back when the U.S. Constitution was first written, it was determined that law enforcement officials should demonstrate probable cause to collect evidence related to a criminal investigation. At the time, “personal effects” consisted of materials kept on their person and in their residence. Today, evidence can be collected from a person’s bloodstream, body cavities, motor vehicle, smartphone, or computer.


Speaking with a knowledgeable Texas criminal defense attorney like Jeff King can help you determine if your rights have been violated and whether you are eligible to reduced penalties due to the way evidence was collected.


What rights do you have under the Fourth Amendment?


The Fourth Amendment to the U.S. Constitution provides “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.”


In general, a police officer needs a warrant to search the body or property of a suspect. This document must be reviewed and signed by a judge to verify that there is “just cause” to invade a person’s privacy. If a search is conducted without the proper warrant, any evidence recovered can be deemed inadmissible in court.


What is ‘just’ or ‘probable’ cause for search?


Officers must have some type of tangible proof that you have been involved in criminal activity in order to invade your privacy and search for evidence to support their claims. Probable cause may come from:


  • Surveillance footage where the officer observes suspicious behavior on your part, such as you speaking with known criminals or hanging out in areas known for criminal activity.
  • Signed affidavit of a person swearing they saw you engaged in criminal activity.
  • Hearsay, where someone overheard you talking about criminal activity.
  • Visible evidence, where items related to criminal activity can be seen.

Fourth Amendment exceptions


The Courts recognize that there are times when it may not be prudent to stop and get a warrant. Exceptions to the Fourth Amendment include “exigent circumstances” where police officers are in hot pursuit of a suspect, when officers witness suspects attempting to conceal evidence immediately after committing a crime, when a suspect needs to be checked for weapons or contraband while being placed under arrest, or when the life of another person is in immediate jeopardy.


Exceptions may also include:


  • Consent searches
  • Motor vehicle searches
  • Sobriety checkpoints
  • Border searches
  • Evidence in plain view

What is considered legal vs. illegal search in Texas?


If you are placed under arrest, the officer has the legal right to pat you down or ask you to empty your pockets. If there is no “probable” reason to suspect that you have committed a crime, officers may not force you to reveal your identity or turn over what is in your pockets.


Police may search you if:


  • There is concern for the officers’ safety.
  • There is suspicion you are armed and dangerous.
  • There is suspicion you are about to commit a crime involving a weapon.
  • The officer is alone and has requested backup.
  • There are a number of physically large suspects present.
  • Your behavior or emotional state poses a threat.
  • Your answers were evasive during the initial stop.
  • The time of day and geographical surroundings indicate suspicious activity.

Searches of your vehicle


Property searches are held to a higher standard than vehicle searches. Any individual who has been arrested may have their vehicle searched. If an officer pulls over a vehicle and smells marijuana or sees beer bottles lying on the seat, there is probable cause to detain or arrest the driver and conduct a search. An officer may NOT search your vehicle simply because you blew through a stop sign or were speeding.


Police may only conduct a warrantless search of your vehicle if:


  • You have given consent.
  • There is specific evidence the vehicle was used in a crime.
  • The officer believes a search is necessary for protection.
  • The search is related to an arrest for drugs or alcohol.
  • The car has been towed and impounded.

Searches of your electronic devices


The most common way law enforcement gains access to electronic records is by simply asking for permission. In that case, they don’t need a warrant. If law enforcement shows up at your door asking to see a laptop or cell phone, they must have a valid warrant to search these items. If you are arrested, officers may search the physical elements of your phone, but cannot look at data inside the phone unless they have a warrant.


However, they may confiscate electronic devices without a warrant if:


  • They have probable cause to believe there is incriminating evidence in the home under immediate threat of destruction.
  • A roommate/guest/spouse/partner shares access and provides consent.
  • You are at an international border

What to do if you believe you’re a victim of illegal search and seizure in Texas


If your computer or phone was illegally taken, you can file a motion with the court to have it returned. If your property was taken legally, it may be held for a period of time as evidence or even seized permanently – although you may challenge the right to forfeiture in court.


Remember, you have a right to remain silent and do not have to give up encryption keys or password information to authorities, whether they have a warrant or not. You may simply “Plead the Fifth.” If you are detained by police and do not wish to search, you can verbally state, “Officer, I am not resisting. I do not consent to this search.” If they ask to have a look around, you can refuse by saying, “Officer, I know you’re just doing your job, but I do not consent to searches.” Refusing a search is not an admission of guilt and does not give the officer the right to detain you. If you have not been arrested, you may ask, “Officer, am I free to go?”


If you are not free to go and an officer is detaining you based on a suspicion, you have the right to say, “I choose to remain silent. I would like to speak with a lawyer.” These words are your best protection if you’re placed under arrest. Dallas, Texas Criminal Defense Attorney Jeff King has decades of experience fighting for the rights of suspects in police custody and for innocent individuals whose personal effects were illegally searched and/or seized. Contact Jeff King for a free exploration of your legal rights.


Additional “Illegal Search & Seizure” Resources:


  1. Texas Law – Code of Criminal Procedure,
  2. Texas District & County Attorney Association – Warrantless Search & Seizure,
  3. Electronic Frontier Foundation – Know Your Rights,
  4. Flex Your Rights – When Can Police Search Your Car,
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