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.
Showing posts with label Search and Seizure. Show all posts
Showing posts with label Search and Seizure. Show all posts
Fighting Drug Charges
When a person is arrested for possession of a controlled substance, possession of marijuana, illegal possession of prescription drugs etc. the person feels completely helpless. The person many times feels like there is no way to fight the charge. Fortunately, there are many options for fighting drug possession charges and for minimizing the damages.
One of the options is a suppression hearing. This is a hearing that allows the Judge to determine whether or not there was probable cause for arrest or whether there was a constitutional violation.
Even if a person thinks that they have been caught red handed, there may have been mistakes made during the investigation or arrest. The officer may have opened a locked container that he did not have probable cause to open. If a search warrant was involved, the officer may not have followed the proper procedures for obtaining and executing that warrant. A questionable informant could have been used. The police may have violated the 4th amendment's search and seizure laws.
If the Judge doesn't make the right decision on your motions, the appeal court can take a look at it. But, if you do not file the motions the appeals court doesn't have anything to work with.
No matter what the situation, the best thing for a person charged with a drug crime to do is to take a deep breath, gather their thoughts, and find skilled legal counsel. The police has a whole team of lawyer's working for them and they are called District Attorney's.
One of the options is a suppression hearing. This is a hearing that allows the Judge to determine whether or not there was probable cause for arrest or whether there was a constitutional violation.
Even if a person thinks that they have been caught red handed, there may have been mistakes made during the investigation or arrest. The officer may have opened a locked container that he did not have probable cause to open. If a search warrant was involved, the officer may not have followed the proper procedures for obtaining and executing that warrant. A questionable informant could have been used. The police may have violated the 4th amendment's search and seizure laws.
If the Judge doesn't make the right decision on your motions, the appeal court can take a look at it. But, if you do not file the motions the appeals court doesn't have anything to work with.
No matter what the situation, the best thing for a person charged with a drug crime to do is to take a deep breath, gather their thoughts, and find skilled legal counsel. The police has a whole team of lawyer's working for them and they are called District Attorney's.
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.
Article 1, Section 9 of the Texas Constitution states:
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:
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.
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