Texas Defense: SEARCHES WITHOUT A WARRANT

Standard

Just as a person may consent to a conversation with a police officer, a person may similarly consent – or fail to adequately object – to a request to search their pockets, belongings, handbags, car, home, cellphone, computer, or office. Absent consent, the police still have the power in certain circumstances to search a person’s clothing, car, and home.

SEARCH A PERSON’S BODY

Frisk for Weapons (before arrest): When a reasonable person in the officer’s circumstances would have believed there was a danger to the officer’s safety or the safety of others (objective standard). Terry v. Ohio, 392 U.S. 1 (1968).

Plain Feel (during frisk): If in the course of a lawful frisk of a defendant’s clothing a police officer feels an object whose contour or mass make it immediately apparent that it is contraband, it may be seized.  Minnesota v. Dickerson, 508 U.S. 366 (1993); Griffin v. State, 215 S.W. 3d 403 (Tex. Crim. App. 2006).

Search Incident to Arrest (after arrest): Once a person is arrested the police may perform a thorough search of the person before they are booked into jail. Arizona v. Gant, 129 S.Ct. 1710 (2009).

SEARCH OF A VEHICLE

Search Incident to Arrest: In Gant, the Supreme Court narrowed the search incident to arrest exception as it pertains to vehicle searches. A search incident to arrest is permissible in two contexts:

  • A search for weapons based on concerns about officer safety. An officer may search the car for weapons if the defendant is within reaching distance of the passenger compartment.

A search for evidence of the offense that the defendant was arrested for. Where an officer has probable cause to believe that a driver is committing or has committed a crime, and also has probable cause to believe that the car contains contraband or evidence of that crime, he may search the entire car, and any container inside that could reasonably hold the evidence or contraband. US v. Ross, 456 US 798 (1982); Carroll v. US, 267 US 132 (1925).  However, Where the defendant was arrested for a traffic offense, there is no reasonable basis to believe that the car contains evidence of that offense. Gant, 129 S.Ct. 1710.

Inventory Search: to protect defendant’s interest in property, to protect police from unmeritorious claims, and to protect against dangerous objects that might be inside the car. The burden is on the state to show that:

  1. standardized inventory procedures are in place, and
  2. those procedures were followed. Benavides State, 600 S.W.2d 809 (Tex. Crim. App 1980); State v. Stauder, 264 S.W.3d 360 (1984).

An inventory search cannot include a search of the defendant’s cellular phone. The police must obtain a warrant to search the contents of a cellphone. Riley v. California, 134 S.Ct. 2473 (2014).

SEARCH OF A RESIDENCE

Exigent Circumstances:  Circumstances present urgency that would prevent officers from getting a warrant;

  1. Officers have probable cause to believe that items relating to the crime will be found or that thesuspect will be found; and the search is limited in scope by the nature of the emergency.

Example: The odor of marijuana standing alone isn’t enough to give officers the right to enter a residence and search without a warrant. Steelman v. State, 93 S.W.3d 102 (Tex. Crim. App. 2002); Moulden v. State, 576 S.W.2d 817 (Tex. Crim. App. 1978).

  1. Emergency Exception: Where an officer reasonably believes someone inside is seriously injured or is in immediate danger of being seriously injured. The reason for entry must be divorced from detection, investigation, or acquisition of evidence. Gonzalez v. State, 148 S.W.3d 702 (Tex. App.—Austin 2004); Laney v. State, 117 S.W.3d 854 (Tex. Crim. App. 2003).

Search incident to arrest: Police may search area of house where Defendant could reasonably reach toretrieve a weapon or dispose of drugs. Chimel v. California, 395 U.S. 752 (1969).

Protective sweep: Police may conduct a protective sweep of the house to make sure no one is hiding. Thisis a very cursory, visual sweep. Maryland v. Buie, 494 U.S. 325 (1990).

The Morris Firm, info@themorrisfirm.net, (214)357-1782

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