Originally posted on the website of our contributors, Law Office of Bryan Fagan.
Whether you have been accused of a crime or know someone who has been accused of a crime, most people are interested in knowing what constitutes an illegal search in Texas. The 4th amendment of the United States constitution requires the existence of a warrant before being able to search someone’s property or person. This means that law enforcement cannot search your home or vehicle, or any other property you own, including your body, without the existence of a warrant signed by a judge. However, there are always exceptions to the rule, like with anything else.
This one is simple; if you give consent to a law enforcement officer to search your home or other property, including your vehicle, then no warrant is required.
It is also important to note that in most cases, your spouse and/or roommate may also give the consent in the absence of your presence or consent. In the scenario that your spouse or roommate gives consent to the search, you may potentially have an argument if it was clear that they did not have authority to give consent to the specific area searched. For example, if your roommate does not have authority to enter your room, then he/she does not have the authority to consent to the search of your room. However, apparent authority is allowed. For example, if your roommate believes he/she has consent to enter your room, or if he/she does not believe to have consent but does not provide this information to the police, the consequent search may still be considered legal if the police had a good faith and reasonable belief that your roommate had apparent authority to give consent to search your room.
This exception applies where the police are in hot pursuit of a suspect, a crime is in the process of being committed and someone’s life may be in danger, or if the officers believe that a person may be attempting to hide evidence of a crime during the time it takes to obtain a warrant.
Plain view and impound exception
If something is in plain view, for example laying on the seat of your vehicle, or underneath the seat, and can be seen from outside the vehicle, no warrant for the search is required. In addition, a police officer may search your vehicle for inventory purposes if your vehicle is impounded.
Police may search you or your vehicle at border checkpoints without a warrant.
Sobriety checkpoints are another area where a search without a warrant may be conducted for a limited purpose. There has been plenty of debate and cases about this constitutionality of this one.
Safety of officer or other people
The police may search you or your property if there is reasonable belief that the safety of either the officer or another person is in danger.
A vehicle search has lower standards than the search of your home. For example, if there is probable cause that there are drugs in your vehicle (for example when the officer smells the odor of drugs as he/she stands by your vehicle), the officer may search the vehicle without a warrant to find contraband.
Fruit of the poisonous tree
What happens if police gather evidence of a crime as a result of an unlawful search? The evidence will be suppressed and will not be used against you in court; this is known in the legal community as fruit of the poisonous tree. If the tree was poisonous (i.e. the search that obtained the evidence to charge you with the crime was illegal) then the fruit of it (the evidence gathered) is also poisonous.
Although, it is important to have a good criminal defense attorney to raise the proper motions and arguments before a judge, if there has been evidence gathered by an illegal search. Any legal arguments an accused may have are generally waived if they are not properly raised at the right time.
If you are looking for a criminal defense attorney and want to know what to know more about illegal searched, what strategy to take in fighting your allegations, or if you simply want to call to discuss your legal issue, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Firm. Our phone number is 832-800-5590 and the email is email@example.com. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria. Contact the A.T. Law Firm by calling (832) 800-5590 for a free consultation.