CAN POLICE SEARCH A PERSON ANY TIME THEY WANT?

I received a question from one of my twitter followers asking the question "Can a Dallas police officer search a person anytime they want?"

The answer to that is No.

The law of search and seizure in the state of Texas is very complicated.  The laws have been interpreted and re-interpreted a million times.

Searches are covered by the Fourth Amendment of the United States Constitution, and Article 1, Section 9 of the Texas Constitution.

The Fourth Amendment of the United States Constitution states:

  

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.

Article 1, Section 9 of the Texas Constitution states:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. 

There are generally two types of searches: 1. Warrant and 2. Warrantless.

Warrant

A search warrant is an order signed by a judge, based on probable cause, that authorizes the police to search in a specific area for certain things or items.

The Constitution doesn’t really define what probable cause is, so the courts have created their own definitions. Probable Cause exists when there is a likelihood that a crime is either being committed or is likely to occur;. But, has to be based on more than just a hunch.

The police can only search when or wherever the search warrant states and only in those places where the items to be searched for could be reasonably located. However, it doesn’t necessarily mean that the police can only seize the items described in the search warrant. If the police come across other contraband during a legal search, then those items can be seized as well.

Warrantless

There are several exceptions to the requirement of a search warrant that allows officers to search without a warrant.  The following list are just a few:

• Consent to search by the person to be searched to search their person, that persons immediate area or belongings;
• During a lawful arrest;
• During a brief investigatory detention;
• Contraband in plain view;
• Under exigent circumstances such as: officer safety, belief that evidence will be destroyed, or belief that a suspect will flee before a search warrant is obtained.

The issue of search and seizure is very fact specific and has to be analyzed based upon the totality of the circumstances.  If a person feels that a search was done illegally their attorney can file a motion to suppress to contest the search and get the evidence thrown out.