Search and Seizure Laws in Texas

Texas search and seizure laws limit the power of police to search and seize people and their property. The laws are largely are based on the Fourth Amendment to the U.S. Constitution. State law applies well.

If police exceed their lawful authority, defendants can file a motion to suppress the evidence. The court can apply the exclusionary rule. Evidence found from the violation is barred from court.

The Fourth Amendment forbids searches and seizures that are “unreasonable.” It applies to both federal and state law enforcement.1

Texas state law also protects people from unreasonable searches or seizures. Texas has its own version of the Fourth Amendment.2 It also has its own exclusionary rule.3 It prohibits illegal searches done by private citizens, in addition to those done by law enforcement.4

illegal search and seizure
Texas state law prohibits illegal searches done by private citizens, in addition to those done by law enforcement.

1. When is a police search unreasonable?

Under the Fourth Amendment, a search done by law enforcement is unreasonable if:

  • there was no valid search warrant, and
  • the search does not fall in a recognized exception to the warrant requirement.5

2. When is a search warrant valid?

Searches are reasonable if there is a valid search warrant.

A search warrant is a written order issued by a magistrate. A warrant directs police officers to search a particular place for certain types of evidence. Judges can only issue a warrant if they think there is probable cause to believe a crime was committed.6

When police request a search warrant, they attach an affidavit. The affidavit details the facts and circumstances that, according to the police, create probable cause. It is signed and submitted under oath to the magistrate. Those facts and circumstances have to include:

  • the specific crime believed to have been committed,
  • an explanation of why the place and property to be searched is evidence of the crime, and
  • a statement that the evidence is to be found at the place to be searched.7

A search warrant is invalid if:

  • it does not establish probable cause,8 or
  • the police are not truthful in the sworn affidavit.9
judge handing out a warrant
There are some exceptions to the warrant requirement

3. What are the exceptions to the warrant requirement?

Police do not always need a search warrant to look for evidence of a crime. There are several exceptions to the warrant requirement. If their search falls into one of them, it will not violate the Fourth Amendment. The exceptions include:

  • the suspect consented to the search,
  • the search was incident to a lawful arrest,
  • the evidence was in plain view,
  • the evidence was in a place where the defendant had no reasonable expectation of privacy,
  • there were exigent circumstances that required police action to prevent evidence being destroyed, and
  • police had probable cause and the search is of a vehicle.

4. What is the exclusionary rule?

If police found evidence without a valid search warrant or a warrant exception, it can be an illegal search. The exclusionary rule is the penalty for illegal searches. It excludes the evidence that was found. Defendants can ask the court to exclude evidence by filing a motion to suppress evidence.

The exclusionary rule does not just apply to the evidence found during the illegal search. It also applies to evidence indirectly produced by the illegal search. This is the fruit of the poisonous tree doctrine.

Example: Police conduct an illegal search of Mark's business while investigating a drug crime. While they do not find narcotics, Mark tells them that Jonny has them. The police then arrest Jonny and find the drugs. He is charged with drug possession with intent to sell. The drugs found on Jonny can be excluded. They are the fruit of the poisonous tree.10

5. What is a motion to suppress?

A motion to suppress evidence is a pretrial motion that defendants can file. It is also known as a suppression motion.

Defendants file the motion to request the judge to exclude evidence because it was obtained illegally.

The motion can be filed any time before trial. The judge will schedule a suppression hearing. At the hearing, the defense can argue why the evidence should be excluded. The prosecutor will argue that it should be admitted.

person walking her dog
Evidence found during a normal person’s illegal search can also be excluded from court.

6. What if a private citizen found the evidence?

In Texas, private citizens can also conduct illegal searches. Evidence found during a normal person's illegal search can also be excluded from court.11

A private citizen's illegal search is different than a police officer's. Police officers can conduct an illegal search when they violate the Fourth Amendment. The Fourth Amendment does not apply to private citizens, though. Regular people have to break the law while gathering evidence for the search to be illegal.

Example: A school principal searches a teacher's phone and finds up-skirt photos of students. The principal had no warrant and no warrant exception applied. However, the search was not a crime. The evidence was admitted in court on a charge of attempted sexual performance by a child.12


Legal References:

  1. Mapp v. Ohio, 367 U.S. 643 (1961).

  2. Texas Constitution, Article 1, Section 9.

  3. Texas Code of Criminal Procedure 38.23.

  4. State v. Johnson, 939 S.W.2d 586 (Tex. Crim. App. 1996).

  5. Riley v. California, 134 S.Ct. 2473 (2014).

  6. Texas Code of Criminal Procedure 18.01.

  7. Texas Code of Criminal Procedure 18.01(c).

  8. Illinois v. Gates, 103 S.Ct. 2317 (1983).

  9. Franks v. Delaware, 438 U.S. 154 (1978).

  10. Wong Sun v. United States, 371 U.S. 471 (1963).

  11. Texas Code of Criminal Procedure 38.23 (“No evidence obtained by an officer or other person… shall be admitted in evidence..”)

  12. Ruiz v. State, 577 S.W.3d 543 (Tex. Crim. App. 2019).

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