Illegal Search and Seizure

The 4th Amendment 

The Fourth Amendment of the United States Constitution provides that:

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.


The Fourth Amendment is an important protection against illegal search and seizure by the government. It requires that law enforcement officers obtain a warrant before conducting a search, except in certain limited circumstances, and that the warrant be based on probable cause. This is known as the “warrant requirement.”

The Fourth Amendment also requires that the warrant be specific about the place to be searched and the items to be seized. This means that law enforcement officers cannot conduct a general search of a person or property without a specific warrant. A warrant may fail in some circumstances where the Judge finds that it is ambiguous.

In recent years, there have been several cases where the Fourth Amendment has been at issue in modern day. For example, the use of technology, such as cell phones and GPS tracking, has raised questions about whether law enforcement officers need a warrant to access this information. The Supreme Court has held that, in most cases, a warrant is required to access this type of information.

Similarly, the use of surveillance cameras and other surveillance technologies has raised questions about the scope of the Fourth Amendment’s protections. Courts have generally held that individuals have a reasonable expectation of privacy in certain places, such as their homes, and that warrantless searches of these places are generally prohibited.

Whether you are charged with Driving While Intoxicated, a Drug Crime, Theft offense (or many others) whether the government followed the 4th amendment in how they obtained the evidence in your case has significant consequences. If the 4th Amendment to the Constituion of the United States or the State of Texas is violated in how the evidence is obtained, that evidence may not be able to be used against you. 


Federal Law

Under the Fourth Amendment of the United States Constitution, individuals are protected against unreasonable searches and seizures by the government. This protection extends to both federal and state authorities. An illegal search and seizure occurs when law enforcement officers conduct a search without a valid warrant or probable cause.

A warrant is a legal document issued by a judge or magistrate that authorizes law enforcement officers to search a specific place or person for evidence of a crime. The Fourth Amendment requires that the warrant be based on probable cause, which means that the officer must have a reasonable belief that a crime has been committed or is about to be committed.

There are exceptions to the warrant requirement, which have been established by the Federal courts. These include:

  • Consent: If an individual consents to a search, a warrant is not required. However, the consent must be voluntary and not coerced.
  • Incident to arrest: Law enforcement officers may conduct a warrantless search of an individual who has been lawfully arrested. This search is limited to the area within the arrestee’s immediate control.
  • Plain view: If an officer sees evidence of a crime in plain view, he or she may seize it without a warrant.
  • Exigent circumstances: If there is an emergency situation that requires immediate action, such as a threat to public safety or the imminent destruction of evidence, law enforcement officers may conduct a warrantless search.

It’s important to note that these exceptions are narrowly construed and subject to judicial review. If a court determines that the exception does not apply, the evidence obtained through the illegal search and seizure may be excluded from trial. This is known as the “Exclusionary rule.


Texas Law: Greater Protection than Federal Law 

Some might be surprised to hear that in Texas, criminal defendants have greater protections than Federal law against illegal search and siezure. Texas has specific statutes which require warrants for certain evidence, where Federal law does not. Texas also has statutes which specifically exclude evidence if it is acquired in violation of the law.

Under the Texas Constitution, individuals are also protected against unreasonable searches and seizures. Article I, Section 9 of the Texas Constitution provides that:

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.

Suppression of Evidence

In addition to the Texas Constitution, the Texas Penal Code and the Texas Code of Criminal Procedure provide additional protections against illegal search and seizure. Specifically, the Texas Penal Code prohibits the use of evidence obtained through an illegal search or seizure. Section 38.23 of the Penal Code provides that evidence obtained in violation of the Texas Constitution or the U.S. Constitution cannot be used against a defendant in a criminal trial.

The Texas Code of Criminal Procedure sets forth the rules governing search warrants and provides additional protections for criminal defendants. For example, Article 18.01 of the Code requires that a search warrant must be supported by an affidavit that contains sufficient information to establish probable cause. Article 18.02 of the Code requires that the warrant be executed within a specified period of time and limits the scope of the search to the specific areas and items described in the warrant.

Texas law also provides additional protections for criminal defendants that differ from federal law. For example, Texas law requires that before a judge can issue a search warrant, the applicant must be a peace officer or a prosecuting attorney, and must provide an oath or affirmation that the information in the application is true. In contrast, under federal law, the warrant application can be made by any law enforcement officer.

Furthermore, Texas law requires that the executing officer give notice of the search and the warrant to the person being searched, unless the warrant specifically authorizes a “no-knock” entry. This requirement is not present under federal law, which allows for “no-knock” warrants in certain situations.


Cell Phone Searches

The status of police search of cell phones without a warrant has been the subject of several court cases in recent years. Generally, the courts have held that law enforcement officers need a warrant to search the contents of a cell phone.

In 2014, the United States Supreme Court issued a landmark decision in Riley v. California, which held that law enforcement officers generally need a warrant to search the contents of a cell phone seized during an arrest. In the Riley case, the police arrested the defendant for a traffic violation and seized his cell phone. The police then searched the contents of the cell phone without a warrant and found evidence of gang-related activity. The Supreme Court held that the search was unconstitutional and that a warrant is generally required to search the contents of a cell phone.

Since the Riley decision, several lower courts have applied its holding to other types of cases. For example, in 2016, the Supreme Court issued a decision in United States v. Carpenter, which held that law enforcement officers generally need a warrant to access cell phone location data. In the Carpenter case, the police obtained the defendant’s cell phone location data without a warrant and used it to place him near several robbery locations. The Supreme Court held that the search was unconstitutional and that a warrant is generally required to access cell phone location data.

Overall, the trend in recent years has been towards requiring law enforcement officers to obtain a warrant before searching the contents of a cell phone. However, there are still some exceptions to this general rule, such as when there is a threat to public safety or when the search is incident to a lawful arrest.


Prolonged Detention

The concept of prolonged detention in relation to illegal search and seizure refers to the detention of an individual by law enforcement officers beyond the time reasonably necessary to complete a lawful traffic stop, without reasonable suspicion of further criminal activity.

In 2015, the U.S. Supreme Court issued a decision in Rodriguez v. United States, which held that law enforcement officers cannot prolong a traffic stop to conduct a search of a vehicle or a person without reasonable suspicion of criminal activity beyond the initial purpose of the stop. The Supreme Court reasoned that the Fourth Amendment’s protection against unreasonable searches and seizures includes a presumption that a traffic stop lasts only as long as necessary to complete its purpose, which is to address the traffic violation that led to the stop.

The Rodriguez decision was significant because it limited the ability of law enforcement officers to conduct searches during traffic stops, without a reasonable suspicion of criminal activity. It also emphasized the importance of the Fourth Amendment’s protections against prolonged detention, which can lead to an unjustified invasion of privacy and a violation of individual rights.

Since the Rodriguez decision, there have been several subsequent Supreme Court cases that have modified its holding. For example, in 2016, the Supreme Court issued a decision in Utah v. Strieff, which held that evidence obtained during an unlawful stop may still be admissible in court if the discovery of the evidence was sufficiently attenuated from the unconstitutional stop.

Similarly, in 2021, the Supreme Court issued a decision in Caniglia v. Strom, which held that the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home, and that law enforcement officers generally need a warrant to conduct a search of a home, even if the search is for the purpose of community caretaking.


Make sure that if you are being accused of something that was discovered during a search that your lawyer knows the law related to search and seizure. This can mean the difference in charges being dismissed or going to prison. LeGrande Law has a track record of winning cases for his clients by having evidence suppressed where it was illegally obtained.

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