You Can't Search! This Is Not My House!

Question:

Can Police search a house that is occupied by one person, but owned by someone else?

Answer:

Search and Seizure law and the exclusionary rule are very fact intensive. Therefore, without having all the facts it is difficult to give a complete answer to the question. There are many grey areas and part of the determination as to whether or not a piece of evidence is going to be admitted at trial is dependent upon the Judge.

The law regarding this issue starts with the Fourth Amendment to the United States Constitution and section 38.23 of the Texas Code of Criminal Procedure.

The Fourth Amendment 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.

Texas Code of Criminal Procedure 38.23 states: (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

The code section that discusses search warrants and whether or not officers can do certain things is Texas Code of Criminal Procedure 18.06, which states in part: On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.

The tool used to question whether or not the officers can do certain things is called a Motion to Suppress. Although I have provided the basic law on this issue, Judge's interpret the law differently. The issue has to be put in front of the Judge and can be done pre-trial if allowed by the particular Court that the case is in. Some courts run the Motion to Suppress with the trial.

Please note that there are volumes and volumes of case law, articles, treatises etc. regarding search and seizure, the fourth amendment and the exclusionary rule. I could write for days and still only cover a fraction of the complexities of this issue. Although it is always prudent to educate yourself regarding these issues, if you have a case pending in which this is an issue an experienced attorney should be consulted to assist you.