In Texas, a search warrant is a written order issued by a magistrate allowing police to search a particular place, for specific types of evidence. It will only be issued if police can show there is probable cause to believe a crime has been committed.
Searches done with a valid warrant do not violate the suspect's civil rights. Searches done without a warrant do not always violate a suspect's civil rights. If the search falls in an exception to the warrant requirement, it is still a lawful search.
When a search violates the suspect's rights, it can be an illegal search. Those rights come from the Fourth Amendment to the U.S. Constitution and Texas search and seizure laws. Any evidence found can be excluded from trial.
1. What is a search warrant?
A search warrant is a court order issued by a magistrate. The warrant directs police officers to search for specific evidence in a specific place. A copy of the warrant has to be presented to anyone at the place to be searched.1 If the evidence is found, the search warrant gives police the power to seize it.2
The warrant has to include the following information:
- a statement that it comes from “The State of Texas,”
- where police are allowed to search,
- what police are looking for and are allowed to seize,
- the date and hour the warrant was issued, and
- the name and signature of the magistrate who granted the warrant.3
2. How do police get one?
Police request search warrants from magistrates. They apply for a search warrant and attach an affidavit to the request.
The affidavit has to show the magistrate that there is probable cause to believe a crime was committed. The warrant should not be issued if the magistrate is not convinced there is probable cause.
Police have to include the facts and circumstances that support probable cause in the affidavit. The document is signed and submitted by the police under oath. The request has to include:
- the specific crime believed to have been committed,
- why the place and property to be searched is evidence of that crime, and
- a statement that the evidence is likely to be found at the place to be searched.4
3. How are they executed?
Police with a warrant execute it by conducting the search.
They have to bring the warrant and present it to the suspect on the scene.
Generally, police executing a search warrant in Texas have to knock on the door and announce their presence. This is the “knock and announce rule.” However, there are exceptions to this rule. Not complying with it does not make the search illegal.5
Police have to comply with the scope of the warrant. They cannot search areas that are not listed in the warrant or that cannot house the evidence sought. However, police can go anywhere that is reasonable necessary to find what is listed in the warrant.6
Police have to execute most warrants within 3 days of their issuance.7
4. What if the warrant is invalid?
If the search warrant is invalid, the search can be an illegal one. It can violate the suspect's Fourth Amendment rights.
Search warrants are invalid if:
- the affidavit does not adequately establish that there was probable cause for the search,8 or
- the police were not truthful in their sworn affidavit.9
Evidence found with an invalid warrant can be subjected to the exclusionary rule.
5. What is the exclusionary rule?
The exclusionary rule is the penalty that police face when they perform illegal searches.
The rule prevents any evidence that was illegally obtained from being used in trial. It also covers any evidence that was found later on, thanks to the earlier illegal search.10
Defendants can ask the court to apply the exclusionary rule by filing a motion to suppress evidence.
6. What is a motion to suppress?
A motion to suppress evidence is a request that the court exclude evidence that was illegally obtained.
The motion can be filed anytime before trial. A suppression hearing will be scheduled to decide whether to exclude the evidence.
If the motion is successful, the illegally obtained evidence will be excluded. The prosecutor will not be allowed to use it at trial.
7. Do police always need a warrant?
Police can search for evidence without a warrant in limited circumstances. The exceptions to the warrant requirement include:
- exigent circumstances required police to take action, often to prevent evidence from being destroyed,11
- the evidence was in plain view,12
- the evidence was found in a place where the suspect had no reasonable expectation of privacy,13
- the suspect consented to the search,14
- the evidence was found during a search that was incident to a lawful arrest,15 and
- police searched a vehicle and there was probable cause.16
Texas Code of Criminal Procedure 18.06(b).
Texas Code of Criminal Procedure 18.04 and 18.07(b).
Texas Code of Criminal Procedure 18.01(c).
Texas Code of Criminal Procedure 18.07 (exceptions are 15 days for DNA evidence and 10 days for customer data held in electronic storage).