A search warrant can be extremely overwhelming and confusing to those not familiar with the process. Search and seizures are conducted by law enforcement following strict legal procedures. If a search and seizure is improperly handled, it violates the Fourth Amendment to the United States Constitution.
For police officers to be able to obtain a search warrant, there must be probable cause. The elements of probable cause are outlined in the law, and cannot be as simple as a “hunch.” If you or someone you know has been subject to a search and seizure, it is in your best interest to obtain trusted legal representation.
Attorneys for Search and Seizure in San Antonio, Texas
Has your home or business been subject to a police search? If so, it is important that you seek an experienced criminal defense attorney. An attorney can assess the search and seizure, and spot any unlawful activity to suppress incriminating evidence. Do not be idle in this process. Call the attorneys at Flanary Law Firm, PLLC today.
The attorneys at Flanary Law Firm, PLLC have years of experience in criminal defense. We are well informed on the rules and procedures surrounding search warrants. Flanary Law Firm, PLLC wants to do all we can to obtain the best possible results for your case. Do what is best for your future. Get in contact with an attorney at Flanary Law Firm, PLLC.
Flanary Law Firm, PLLC defends those accused of crimes throughout the greater Bexar County area including adjoining counties such as Wilson County, Kendall County, Comal County, and Guadalupe County.
Call us today at (210) 738-8383, or simply submit a free consultation for your case.
Overview for Search Warrants in Texas
- Elements to a Search Warrant
- Requirements of a Search Warrant
- Purpose of a Search Warrant
- Exceptions to Warrantless Searches
- Additional Resources
Elements to a Search Warrant in San Antonio, Texas
A search warrant is a written order that is issued by a magistrate to direct law enforcement to search any property or device linked to criminal activity. Law enforcement must prove probable cause for a search warrant to be deemed viable.
According to the Texas Criminal Procedure Code § 18.01(f), a search warrant must set forth an affidavit that states sufficient facts to establish probable cause. These facts must prove the following:
- That a specific offense has been committed;
- That a specifically described person has been a victim of the offense;
- That evidence of the offense or evidence that a particular person committed the offense can be detected by photographic means; and
- That the person to be searched for and photographed is located at the particular place to be searched.
If a warrant is issued, the executing officer is required to present a copy of the warrant to the property owner. In addition, anything that is seized from the warrant must be written in an inventory and given to the owner. If the property owner is not home or present during the procedure, then a copy of the warrant and inventory will be left inside the residence.
Required Contents for a Search Warrant in Texas
A search warrant must contain the following requirements to be considered valid in Texas.
- That it runs in the name of “The State of Texas”
- That it identify, as near as may be, what is to be seized and name or describe, as near as may be, the person, place or thing to be searched;
- That it command any peace officer of the proper county to search the person, place, or thing named;
- That it’s dated and signed by the magistrate; and
- That the magistrate’s name appears in clearly legible handwriting or typewritten form with the magistrate’s signature.
Purpose of a Search Warrants under Texas Law
Law enforcement is trained to search only relevant items for their investigation. Texas Code of Criminal Procedure § 18.02 states that a search warrant can be issued to search and seize the following items or property:
- Property acquired by theft or in any other illegal manner;
- Arms and ammunitions kept or prepared for the purposes of insurrection or riot;
- Gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;
- A drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property including an illegally kept, prepared for, or manufactured apparatus or paraphernalia;
- Implements or instruments used in the commission of a crime;
- Any illegally possessed property;
- Property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;
- Property specially designed, made, or adapted for or commonly used in the commission of a criminal offense;
- Prohibited weapons;
- Obscene materials kept or prepared for commercial distribution or exhibition;
- Electronic customer data held in electronic storage, including the contents of and records and other information related to a wire or electronic communication held in electronic storage; or
- Contraband subject to forfeiture.
Texas Code of Criminal Procedure § 18.20 defines the following terms. The term “wire communication” is defined as an aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connections.
The term “electronic communication” refers to a transfer of signals, signal writing, images, sound, data, or intelligence of any nature transmitted through wire, radio, electromagnetic, photoelectronic, or photo-optical systems.
Texas Penal Code § 47.01 defines a “gambling instrument” as any electronic, electromechanical, or mechanical contrivance that helps a player have an opportunity to obtain anything of value. The item of value or compensation must be determined solely or partially by chance.
Exceptions to Search Warrants in San Antonio, Texas
Not every scenario requires the issuance of a search warrant. Certain circumstances can be considered exceptions to the Fourth Amendment requirements. If these scenarios occur, then the search is justified since there is not enough time to obtain a warrant.
Some situations that can be considered an exception to the Fourth Amendment, and can justify a warrantless search include:
- To prevent the destruction of evidence;
- To prevent the escape of an alleged offender;
- To search for additional alleged offenders;
- To pursue a fleeing felon (or “hot pursuit”);
- Protection of life and liberty; or
- When an alleged offender is armed.
A few other instances also can lead to a warrantless search without violation of the Fourth Amendment. These circumstances include:
- Plain View Doctrine – If the evidence of a crime or contraband is in plain view of a police officer, then he or she does not need a warrant to seize it.
- Consent Searches – If a person consents to search and seizure, then law enforcement does not require a search warrant.
- Stop and Frisk - If there is reasonable suspicion that a person is armed and dangerous or has committed a criminal act, a police officer is allowed to stop and frisk him or her.
- Searches Incident to Arrest - If the alleged offender is lawfully arrested, law enforcement does not require a search warrant to examine the property or devices.
Invalid Search Warrants under Texas Law
In some cases, a search warrant is considered invalid. An experienced criminal defense attorney can spot any unlawful practices or oversights with the issuance of a search warrant. In addition, a skilled defense lawyer can file a motion that the search and seizure was illegal, suppressing the use of that evidence in court.
Some reasons why a search warrant is considered a violation of the Fourth Amendment include:
- Lack of probable cause;
- Application not made under oath;
- False statements or questionable motives of information source or confidential informant;
- Property searched or seized was not specified in the warrant;
- Failure to provide a copy of the warrant to the property owner;
- Failure to provide written inventory.
Search and Seizure | ACLU – Visit the official website for the American Civil Liberties Union. Find more information about the Fourth Amendment, and what is considered a violation of that constitutional right. Gain access to ACLU’s “Know Your Rights” section, which gives tips to citizens on how to handle police confrontations.
Texas Search Warrant Laws – Visit the official website for the Texas Code of Criminal Procedure. Find more information on search warrants, how they are issued, and what is required in a search warrant. Learn about how search warrants with cell towers work, and how body cavities are searched in a traffic stop.
Lawyers for Search Warrants in Bexar County, Texas
Invalid search warrants may have their evidence suppressed for violating the Fourth Amendment. If you or someone you know has been the subject of a search warrant, it is important that you seek a practiced criminal defense attorney.
Flanary Law Firm, PLLC is a group of attorneys who focus on criminal defense and Texas search warrant laws. We are passionate about preserving our client’s constitutional rights. We understand that the criminal procedures can be overwhelming. It can be hard to spot an issue while in a state of stress and high tension. Do not face this alone. Call the attorneys at Flanary Law Firm, PLLC today.
Our attorneys represent those arrested throughout the greater San Antonio area including Terrell Hills, Universal City, Leon Valley, and Kirby.
Call us at (210) 738-8383, or simply submit an online contact form for a free consultation.
This article was last updated on September 27, 2018.