Intermediate
ARREST, SEARCH & SEIZURE
TEXAS COMMISSION ON LAW ENFORCEMENT
Course Number 2108
Participant Handout
Hosted by
Bexar County Constable Office PCT#4
Deputy Chief George D. Little
Updated May 20, 2014
Intermediate Arrest, Search, and Seizure 2108
Special TCOLE Notes:
This course may be taught in conjunction with Asset Forfeiture and/or Racial
Profiling because of the overlapping subject matter and applicability of the
three courses. Please see the corresponding course instructor guides for the
minimum objectives for those courses. They must be reported separately at
this time because of requirements from the 77th Legislature in SB 563 and SB
1074 for FY 2002 and FY 2003.
All officers are required to have training in Asset Forfeiture prior to
September 1, 2002.
All officers are required to have training in Racial Profiling prior to September
1, 2003.
ACKNOWLEDGEMENTS:
Important feedback and additions to all sections were provided
by Warren Spencer, City of Plano Police Department, Deputy Chief George D.
Little, Captain Arthur Neal Burford and Deputy Constable Roland Berg, Bexar
County Constable’s Office PCT#4.
Please take the time to read these listed cases they will be of imeasurable
value to you in performing your duties and responsibilities at the highest
professional levels; as well as reducing agancy and individual liabilities.
Hopefully this can be used as a ready reference for you in the future.
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George D. Little, C.C.P.S. – TCOLE Advanced Certified Instructor
George D. Little has 43-years of diverse law enforcement experience, in which he has
worked a myriad of assignments working literally in every aspect of law enforcement. He
holds an Associate of Science Degree in Criminal Justice from Central Texas College, a
Bachelor of Science in Occupational Education Criminology/Sociology from Wayland Baptist
College and Associates of Science in Criminal Justice, a Bachelor of Science in Criminal
Justice & Criminology and Master’s degree in Criminology and Human Services and CounterTerrorism from the University of the State of New York. In addition George received his
Basic, Intermediate, Advanced and Masters (Peace Officer) Law Enforcement certifications
from the Texas Commission On Law Enforcement (TCOLE). George is a retired U.S. Army
Military Police (ABN) First Sergeant/E-8 who served his country from Vietnam through
Desert Storm for 21-years of honorable service. During his active duty service George served
as a Military Policeman (95BV5MXH3 MOS) Patrol, Traffic and Tactical operations. He is a
former U.S. Army Criminal Investigations Division (CID) Special Agent and Section Chief
Military Police Investigations (MPI). George worked as an under-cover Drug and Narcotics
investigator with the U.S. Drug Enforcement Administration (D.E.A.) overseas European
operations. He is an experienced veteran Physical Security and Crime Prevention specialist
with expertise in Force Protection, and Counter-Terrorism, in addition to being a MP Special
Operations Operator (Counter-Terrorism for 1988 Olympics in Seoul South Korea) and a
former Military Police School Drill Sergeant and Master Instructor. George served as a
Deputy Provost Marshal USFK Area II, South Korea and as a First Sergeant for several MP
units ending his military career as the Operations Sergeant (NCOIC) for the U.S. Army Joint
Counter Drug Operations Element (JCOE) providing federal, state and local military
assistance for an 8-state area of responsibility. He retired from the Bexar County Sheriff’s
Office San Antonio, Texas (2008) where he was a Deputy Sheriff, School Resource Officer
and the Drug Abuse Resistance Education (D.A.R.E.) Coordinator for Bexar County and was
the 2004 National D.A.R.E. Officer-Of-The-Year (and former D.A.R.E. America- Texas
D.A.R.E. State Coordinator). George has over 20 years veteran experience working in a
school district environment. He has authored and co-authored numerous articles on Counter
Terrorism and Law Enforcement serving as a college adjunct professor teaching criminal
justice and counter-terrorism undergraduate courses. He has a passion for teaching; in
addition to being a Texas Certified Crime Prevention Specialist (C.C.P.S.). George is the
former Director of Institute for Criminal Justice Studies (ICJS) – Texas State University
where he developed the first comprehensive School-Based Law Enforcement Officer (SBLE)
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holistic certified training program, a state-wide TCOLE certified Crime Prevention
certification curriculum; as well as authored, researched and developed numerous state-ofthe art, scientific and researched-based, “Best Practices” specialized law enforcement
curriculums. He is currently the Deputy Chief for INTEL, Homeland Security and Training for
the Bexar County Constable Office, PCT#4. George was the 2011 TCOLE Professional
Achievement Award recipient, and has received numerous U.S. Drug Enforcement
Administration Awards and recognitions; recipient of the Federal Bureau of Investigation Directors Community Leadership Award; and American Society for Industrial Security –
Business Crime Council Award. George is an appointed member of the U.S. Department of
Justice – National Institute of Justice Technical Working Group for School Safety in addition
to being a certified Honorary Tennessee and Kentucky Colonel.
Contact information
Cell: (210)379-4919
E-mail: gdl1453@gvec.net
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TEXAS COMMISSION ON LAW ENFORCEMENT
OFFICER STANDARDS AND EDUCATION
LEARNING OBJECTIVES
UNIT I
1.0
PROBABLE CAUSE, DETENTION, AND ARREST
FUNCTIONAL AREA: This section will cover probable cause, detention, and arrest. The
student will be able to choose a proper course of action when presented with fact
situations on a test to determine reasonable suspicion for detention or probable cause
for arrest. The student will be able to write an acceptable complaint for issuance of an
arrest warrant. The student will be able to demonstrate on a written examination an
understanding of this area to a specified percentage.
1.1
LEARNING OBJECTIVE:
The student will be able to summarize the Fourth
Amendment to the U.S. Constitution.
1.2
LEARNING OBJECTIVE:
The student will be able to identify where the
requirements for probable cause to arrest and search are contained.
1.3
LEARNING OBJECTIVE:
to arrest.
1.4
LEARNING OBJECTIVE:
The student will be able to identify valid indicators
that serve as building blocks of probable cause.
1.5
LEARNING OBJECTIVE:
The student will be able to define suspicion,
identify examples of suspicious circumstances, and identify appropriate
responses.
1.6
LEARNING OBJECTIVE:
The student will be able to define temporary
detention and the elements required for lawful temporary detention.
1.7
LEARNING OBJECTIVE:
The student will be able to identify circumstances
when an officer has the authority to conduct a frisk.
1.8
LEARNING OBJECTIVE:
to constitute a lawful arrest.
1.9
LEARNING OBJECTIVE:
The student will be able to define when a person
is under arrest, in constructive custody, and under restraint.
The student will be able to define probable cause
The student will be able to list elements necessary
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1.10
LEARNING OBJECTIVE:
The student will recognize that once an arrest,
search, or detention has been made, the information being gathered to establish
probable cause or the articulable reasonable suspicion to justify the officer's
initial action cannot be added to.
1.11
LEARNING OBJECTIVE:
The student will be able to identify the amount of
information necessary to make an arrest based upon information communicated
from another officer.
1.12
LEARNING OBJECTIVE: The student will recognize that obtaining an arrest
warrant is the best course of action except when an emergency exists.
1.13
LEARNING OBJECTIVE: The student will observe a scenario in the classroom, on
film, and/or on video tape or read a scenario in the class and write a complaint
that is sufficiently complete to allow a magistrate to issue an arrest warrant.
UNIT II
2.0
EXCEPTIONS TO SEARCH WARRANT REQUIREMENTS
FUNCTIONAL AREA: This section will cover exceptions to search warrant requirements.
The student when given a fact situation on a test will be able to determine if a search
may be conducted without a warrant and what limitations may apply. The student will
be able to write a report that adequately documents and justifies a warrantless search.
The student will be able to demonstrate on a written examination an understanding of
this area to a specified percentage.
2.1
2.2
LEARNING OBJECTIVE:
The student will be able to identify situations in
which exceptions to obtaining a search warrant exist for conducting limited
searches.
LEARNING OBJECTIVE: The student will be able to identify situations in which a
search warrant is not necessary to obtain evidence because there is no
expectation of privacy.
2.3
LEARNING OBJECTIVE: The student will be able to identify when evidence may
be seized during an inventory.
2.4
LEARNING OBJECTIVE: Given a scenario in the classroom, on film, and/or
videotape concerning a search and seizure case without warrant, the student will
be able to write a report that documents the officer's actions in a way that
justifies the warrantless search and seizure.
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UNIT III
3.0
SEARCH WARRANTS
FUNCTIONAL AREAS: This section will cover the principles of preparing valid search
warrants. The students will be able to identify advantages of search warrants,
preparation of proper cause affidavit. The student will be able to write an acceptable
probable cause affidavit. The student will be able to demonstrate on a written
examination an understanding of this area to a specified percentage.
3.1
LEARNING OBJECTIVE:
obtaining a search warrant.
3.2
LEARNING OBJECTIVE: The student will be able to identify three major
components of search warrant documentation.
3.3
LEARNING OBJECTIVE:
The student will be able to identify
essential
components of an affidavit for the issuance of a search warrant.
LEARNING OBJECTIVE: Given a scenario in the classroom, on film and/or
videotape which may include written material and reports, the student will be
able to write an acceptable probable cause affidavit for a search warrant.
3.4
The student will be able to identify advantages of
UNIT IV
4.0
4.0
SUPPRESSION HEARINGS AND CIVIL LIABILITY
SUPPRESSION HEARINGS AND CIVIL LIABILITY
FUNCTIONAL AREA: This section will cover the uniqueness of the pretrial suppression
hearing and possible civil liability for improper arrests, searches, and seizures. The
student will be able to demonstrate on a written examination an understanding of this
area to a specified percentage.
4.1
LEARNING OBJECTIVE:
The student will be able to identify the unique
elements of a pretrial suppression of evidence hearing as it relates to officer
testimony.
4.2
LEARNING OBJECTIVE:
The student will be able to identify the possibility of
personal and/or agency liability for improper arrest, search and seizure actions.
UNIT V
5.0
JUVENILE JUSTICE PROCEDURES
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FUNCTIONAL AREA: This section will cover juvenile justice procedures. The
student will be able to demonstrate on a written examination an understanding
of this area to a specified percentage.
5.1
LEARNING OBJECTIVE:
The student will be able to identify the kinds of
juvenile offenses and how to deal with offenders.
5.2
LEARNING OBJECTIVE:
The student will be able to identify the issues in
making law enforcement contacts at a school.
5.3
LEARNING OBJECTIVE:
The student will be able to identify the issues in
identifying and making law enforcement contacts with juveniles engaged in
organized crime activity. (See Chapter 71, Penal Code, and Chapter 61, Code
of Criminal Procedure.)
FINAL TEST (Comprehensive)
REFERENCE MATERIALS:
Black's Law Dictionary
J. Shane Creamer, The Law of Arrest, Search and Seizure, 3rd Edition, Philadelphia:
W.B. Saunders Co., 1980.
James A. Worrell, Stop and Frisk, Oklahoma City: Jackson Press, 1986.
Larry E. Holtz and Warren J. Spencer, Texas Law Enforcement Handbook.
Publications of Texas, 2001.
Gould
Paul J. McClung, Lawyer's Handbook for Texas Criminal Practice. Ft. Worth: McClung
Law Books, Inc., P.O. Box 12542, Ft. Worth, Texas 76121, Revised Ed., 1986.
Model Rules for Peace Officers: A Resource Manual for Police Discretion and
Rulemaking. Austin: Texas Advisory Commission on Intergovernmental Relations,
1980 (Supplement 1982).
Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 2nd Edition.
St. Paul, Minnesota: West Publishing Compnay, 1987. 4 Volumes.
John Wesley Hall, Jr., Search and Seizure, Lawyers Co-operative Publishing Co.:
Rochester, N.Y., 1982. Cumulative Supplement, 1986.
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Rolando V. del Carmen, Criminal Procedure for Law Enforcement Personnel, 5th Edition.
Belmont, California: Wadsworth Publishing Company, 2000.
Michele G. Hermann, Search and Seizure Checklists, 2000 Edition. St. Paul, Minnesota:
West Publishing Company, 2000.
Jade Meeker, Elements of a Crime, 2001 Edition. Austin, Texas: CLEAR, 2001.
Jade Meeker, Arrest and Search Without a Warrant, 3rd Edition. Austin, Texas: CLEAR,
2001.
Jade Meeker, Search Warrant Manual, 4th Edition. Austin, Texas: CLEAR, 2001.
Case Reporters
Vernon's Annotated Texas Code of Criminal Procedure
Gerald S. Reamey, A Peace Officer's Guide to Texas Law,
Association, 1987.
Austin:
Texas Police
DeVallis Rutlege. The Search and Seizure Handbook for Law Officers, 2nd Ed. Costa
Mesa, CA: Custom Publishing Co., 1986.
Title 42 Section 1983 United State Code Annotated
Isidore Silver. Police Civil Liability. New York: Mathew Bender & Co.: 1986.
Vernon's Annotated Texas Code of Criminal Procedure
DeVallis Rutlege. The Search and Seizure Handbook for Law Officers, 2nd Ed. Costa
Mesa, CA: Custom Publishing Co., 1986.
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Sysnopsis of Arizona v Gant retrieved from FLETC website on June 8, 2009:
http://www.fletc.gov/training/programs/legal-division/the-informer/arizona-vsgant.pdf/view?searchterm=
Arizona v. Gant 129 S.Ct. 1710 (U.S. Ariz., 2009)
On Tuesday, April 21, 2009, the Supreme Court decided the case of Arizona v. Gant
dealing with the circumstances permitting the search of a vehicle incident to the arrest
of an occupant. Below is the FLETC LGD review of the decision and its practical impact
on law enforcement, authored by Jenna Solari, Senior Instructor.
Case Note – Police may search the passenger compartment of a vehicle
incident to arrest of an occupant or recent occupant only if it is reasonable to
believe that the arrestee might access the vehicle at the time of the search or
that the vehicle contains evidence of the offense of arrest.
FACTS: Gant was arrested for driving on a suspended license. Gant was handcuffed
and locked
in a patrol car before officers searched the passenger compartment of his car and
found a firearm and cocaine. In his motion to suppress the evidence, Gant argued that
it was not possible for him to access the vehicle to gain control of a weapon or
evidence, and therefore the search of his vehicle was not a reasonable “search incident
to arrest.”
HELD: Police are authorized to search the passenger compartment of a vehicle incident
to arrest of an occupant or recent occupant only when the arrestee is unsecured and
within reaching distance of the passenger compartment at the time of the search.
Additionally, officers may search the passenger compartment following the arrest of a
recent occupant when it is reasonable to believe that evidence relevant to the crime of
arrest might be found in the vehicle.
DISCUSSION:
Prior case law: Chimel, Belton, and Thornton. The Supreme Court first established
the search incident to arrest (“SIA”) exception to the Fourth Amendment’s warrant
requirement in Chimel v. California, 395 U.S. 752 (1969). Chimel held that police
may, incident to arrest, search the arrestee’s “lunging area,” which is defined as the
area from within which the arrestee might gain possession of a weapon or destructible
evidence. The purposes of this exception are to protect arresting officers and safeguard
evidence of the offense that an arrestee might conceal or destroy. The Court was asked
to define the scope of a vehicle SIA in New York v. Belton, 453 U.S. 454 (1981). In
Belton, the Court held that when an SIA of a vehicle is justified, the entire compartment
and any containers therein may be searched. In Thornton v. U.S., 541 U.S. 615
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(2004), the Court added that an SIA of a vehicle may be justified even if an occupant
has gotten out of the vehicle, closed the door, and walked a short distance away before
being arrested. The question remaining, however, was whether the Belton and
Thornton rules authorized an SIA of the vehicle regardless of the arrestee’s ability to
access the passenger compartment following the arrest.
Clarification: arrestee within reaching distance. The majority opinion in Arizona
v. Gant has answered that question, holding that prior case law authorizes police to
search a vehicle incident to arrest when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search. The Court noted that
“it will be the rare case in which an officer is unable to fully effectuate an arrest so that
a real possibility of access to the arrestee’s
vehicle remains.” In such a rare case, however, an SIA of the passenger compartment
would be reasonable under the Fourth Amendment.
An additional justification: offense-related evidence. Even if the arrestee can no
longer access the vehicle’s passenger compartment, the Court held that an SIA will also
be permitted “when it is reasonable to believe evidence relevant to the crime of arrest
might be found in the vehicle.” In many cases, such as arrests for traffic violations,
there will be no reasonable basis to believe that the vehicle contains relevant evidence.
In other cases, however, such as arrests for possession of controlled substances, the
basis of the arrest will supply an acceptable rationale for searching the arrestee’s
passenger compartment and any containers inside.
Other vehicle search exceptions remain available. The Court noted that other
established exceptions to the search warrant requirement remain available to safeguard
evidence and protect the safety of officers. If an officer has a reasonable suspicion that
a passenger or recent occupant of a vehicle – whether arrested or not – is dangerous
and may gain access to a weapon, he may frisk the passenger compartment for
weapons. (This exception is known as a Terry frisk of the vehicle.) If the officer has
probable cause that the vehicle contains evidence of criminal activity, the officer may
conduct a thorough search of any area of the vehicle in which the evidence might be
found. (This exception is called the “mobile conveyance exception” or the Carroll
Doctrine.) Finally, if an officer conducting an arrest reasonably suspects that a
dangerous person is hiding in a nearby vehicle, he may conduct a protective sweep of
the vehicle by looking in places where such a person might be concealed. Although not
specifically mentioned by the Court, and not a criminal search tool, an inventory of a
vehicle’s contents following a lawful impound is another exception to the search warrant
requirement. This administrative exception, however, may not be used as a pretext for
a criminal search. Consent remains a viable option as well.
The bottom line. To justify a search incident to arrest of a vehicle’s passenger
compartment, an officer must articulate that either (1) the officer was unable to
sufficiently restrain the arrestee during the search, so that it was reasonable to believe
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the arrestee might have been able to access the vehicle, or (2) there was a reasonable
basis to believe that evidence of the crime for which the occupant of the vehicle was
arrested might be found in the passenger compartment at the time of the search.
APPLICATION TO FIELD OFFICERS AND AGENTS:
Prepare to articulate! The Court noted that “[w]hen asked at the suppression
hearing why the search was conducted, [the officer in this case] responded, ‘Because
the law says we can do it.’” That answer did not – and will not – meet the government’s
burden. While searches of vehicles incident to arrest have been considered “automatic”
for 28 years, the holding of Gant states that more is required. Officers must be
prepared to articulate facts establishing one of the permitted justifications.
Don’t look for the loophole; it’s already closed. Some may suggest the holding in
Gant encourages an unsafe practice of leaving arrestees unsecured in a nearby area to
justify a search incident to arrest. Justice Scalia, however, in his concurring opinion in
Thornton v. U.S., has already anticipated and answered that argument. He wrote, “if an
officer leaves a suspect unrestrained nearby just to manufacture authority to search,
one could argue that the search is unreasonable precisely because the dangerous
conditions justifying it existed only by virtue of the officer’s failure to follow sensible
procedures.”
Unanswered questions:
The Court held that an SIA will also be permitted “when it is reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.” Is this a lower
standard than probable cause applicable only to evidence of the crime of arrest?
Can an officer SIA a vehicle when persons other than the already secured arrestee are
in the area who might gain access to the vehicle?
Does this ruling, reemphasizing the original Chimel basis for SIA, extend beyond the
context of SIA of a vehicle to apply to all SIA of “lunging areas?”
CASE LAWS:
Probable Cause
Brown v. State 481 S.W. 2d 106: "Probable cause for an arrest exists where, at the
moment, the facts and circumstances within the knowledge of the arresting officer and
of which he has reasonably trustworthy information would warrant a reasonable and
prudent man in believing that a particular person has committed or is committing a
crime."
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Henry v. U.S., 361 U.S. 98: "Probable cause exists if the facts and circumstances
known to the officer would warrant a prudent man in believing that the offense has
been committed."
Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223
McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056
Coffman v. State #14-88-890 (TX. App-Houston Searching Student)
[unpublished opinion: 1998 WL 724013]
See Section 1.2 of Texas Law Enforcement Handbook (specifically, Amores v. State 816
S. W. 2d 407 (1991)for the test for determining probable cause in Texas) for cases that
develop situational responses and how various courts have responded concerning
probable cause.
See Section 2.3(b) of Texas Law Enforcement Handbook. Illinois v. Gates, 462 U.S. 23,
103 S.Ct. 2317 (1983) Development of “totality of the circumstances” test for probable
cause. More specifically, see also Bower v. State, 769 S.W.2d 887 (1989) for Texas
application of “totality of the circumstances, also in section 2.3(b).
Cases on Suspicion
Cortez v. U.S., 101 S.Ct. 690 (1981)
Moses v. State, 464 S.W.2d 116 (____)
Hernandez v. State, 523 S.W.2d 410
Florida v. Royer, 103 S.Ct 1319 (1983)
Eisenhauer v. State, 678 S.W.2d 947 (Tex. Cr. App. 1984)
Meeks v. State, 653 S.W.2d 6 (Tex. Cr. App. 1983)
Brown v. Texas, 99 S.Ct 2637 (1979)
Brown v. State, 617 S.W.2d 196 (Tex. Cr. App. 1981), reversed 103 S.Ct. 1535, on
remand 657 S.W.2d 797 (Tex. Cr. App. 1983)
Temporary Detention Cases
Baity v. State, 455 S.W.2d 305, U.S. cert. denied 400 U.S. 918
Armstrong v. State, 550 S.W.2d 25
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Johnson v. State, 658 S.W.2d 623 (Tex. Cr. App.)
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868
Shaffer v. State, 562 S.W.2d 853
Petty v. State, 696 S.W.2d 635 (Tex. App. 5 Dist. 1985)
Brown v. Texas, 443 U.S. 357, 99 S.Ct. 2637
Howard v. State, 617 S.W.2d 191 (Tex. Cr. App. 1979)
Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (1983)
U.S. v. Hensley, 469 U.S., 105 S.Ct., 36 Cr.L 3085 (1-8-85)
Ramirez v. State, 672 S.W.2d 480 (Tex. Cr. App. 1984)
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921
McDougald v. State, 547 S.W.2d 40
Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338
U.S. v. Place, 462 U.S. 696, 103 S.Ct 2637 (1983)
U.S. v. Sharpe, 105 S.Ct. 1568 (1985)
Eisenhauer v. State, 678 S.W.2d 947 (Tex. Cr. App. 1984)
Hayes v. Florida, 105 S.Ct 1643 (1985)
Meeks v. State, 653 S.W.2d 6 (Tex. Cr. App. 1983)
Schwartz v. State, 635 S.W.2d 545 (Tex. Cr. App. 1982)
See section 1.1 of Texas Law Enforcement Handbook. Hilla v. State, 832 S.W.2d 773
(Houston [1st Dist.] 1992 pet. ref’d)
See Chapter 8 of Texas Law Enforcement Handbook. Specifically, sections 8.1.
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Frisk Cases
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868
U.S. v. Sink, 586 F.2d 1041 (5th Cir. 1978), cert. denied, 443 U.S. 912
U.S. v. Ullrich, 580 F.2d 765 (5th Cir. 1978)
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983)
U.S. v. Tharpe, 536 F.2d 1098 (5th Cir. 1976)
Arrest Cases
U.S. v. Maldonado, 735 F.2d 809
Eisenhauer v. State, 678 S.W.2d 947 (Tex. Cr. App. 1984)
Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 1979, (1989)
Custody Cases
Berkemer v. McCarty, 104 S.Ct. 697 (1984)
Eisenhauer v. State, 678 S.W.2d 947 (Tex. Cr. App. 1984)
Officer Communication to establish Probable Cause Cases
Green v. State, 470 S.W.2d 901
Weeks v. State, 417 S.W.2d 716, U.S. cert. denied 389 U.S. 996 (1967)
McDuff v. State, 431 S.W.2d 547
Piper v. State, 484 S.W.2d 776
Williams v. State, 621 S.W.2d 609 (Tex. Cr. App. 1981)
Fugitt v. State, 623 S.W.2d 471 (Tex. App. 1981)
Volanty v. State, CCApp, 663 S.W.2d 897, (Tex. App. 13 Dist. 1983) U.S. cert. denied
105 S.Ct. 790
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Woodward v. State, 668 S.W.2d 337, (Tex. Cr. App. 1982) U.S. cert. denied 105 S.Ct
939
Whiteley v. Warden, 401 U.S. 560, 91 S.Ct 1031
Astran v. State, 799 S. W. 2d 761 (1990)
Emergency Search Cases
Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942
Tijuina v. State, 578 S.W.2d 415
Perez v. State, 514 S.W.2d 748
Corbett v. State, 493 S.W.2d 940, U.S. cert. denied 414 U.S. 1131
e.
Broadnax v. State, 666 S.W.2d 83 (Tex. App. 14 Dist. 1984)
Green v. State, 666 S.W.2d 291 (Tex. App. 14 Dist. 1984)
Bray v. State, 597 S.W.2d 763 (Tex. App. 1980)
U.S. v. Jeffers, 342 U.S. 48
Schmerber v. Calif., 384 U.S. 757
Janicek v. State, 634 S.W.2d 687 (Tex. Cr. App. 1982)
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408
Arizona v. Hicks, 40 Cr.L 3320 (3-3-87)
Officer Protection (Safety) Stop & Frisk cases
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868
Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889
Ramirez v. State, 672 S.W.2d 480 (Tex. Cr. App. 1984)
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921
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Peters v. U.S., 88 S.Ct. 1889
U.S. v. Tharpe, 536 F.2d 1098 (5th Cir. 1976)
Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469
Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330
Britton v. State, 578 S.W.2d 685, U.S. cert. denied 444
U.S. 955
Crawford v. State, 544 S.W.2d 163
Hull v. State, 613 S.W.2d 735 (Tex. Cr. App. 1981)
Lippert v. State, 664 S.W.2d 712 (Tex. Cr. App. 1984)
Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979)
Lawson v. Kolender, 103 S.Ct. 1855 (1983)
Vehicle Search Cases
Brinegar v. U.S., 338 U.S. 160
Brown v. State, 481 S.W.2d 106
Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216
California v. Carney, 37 Cr.L.303333 (5-13-85)
Glass v. State, 681 S.W.2d 599 (Tex. Cr. App. 1984)
Texas v. White, 423 U.S. 67, 96 S.Ct. 304
Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975 (1969)
Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079 (1982)
U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476
New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860 (1981)
Osban v. State, 726 S.W.2d 107 (Tex. Cr. App. 1986)
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Barber v. State, 611 S.W.2d 67 (Tex. Cr. App. 1981)
Stoddard v. State, 475 S.W.2d 744
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022
Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586
Pace v. Beto, 469 F.2d 1389 (5th Cir.)
U.S. v. Edwards, 441 F.2d 749 (5th Cir.)
U.S. v. Polk, 433 F.2d 644 (5th Cir.)
Hudson v. State, 588 S.W.2d 348
Araj v. State, 592 S.W.2d 603 (Tex. Cr. App. 1979)
Robbins v. California, 101 S.Ct. 2841
Soto v. State 4-88-660 (TX App. -San Antonio 12-13-89)
Search Incidental to Law Arrest (After Arrest)
U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467
Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488
U.S. v. Edwards, 415 U.S. 800, 94 S.Ct. 1234
Harding v. State, 500 S.W.2d 870
Snyder v. State, 629 S.W.2d 930 (Tex. Cr. App. 1982)
Linett v. State, 647 S.W.2d 672 (Tex. Cr. App. 1983)
U.S. v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476
U.S. v. Johnson, 588 F.2d 147 (5th Cir.)
Stewart v. State, 611 S.W.2d 434 (Tex. Cr. App. 1981)
Mincey v. Arizona, 437 U.S. 385
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Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642
Chimel v. Calif., 395 U.S. 752 (1969)
New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860 (1981)
Arizona v. Gant 129 S.Ct. 1710 (U.S. Ariz., 2009)
Haynes v. State, 475 S.W.2d 739
Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642
Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969
Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812 (1982)
Christian v. State, 592 S.W.2d 625, (Tex. Cr. App. 1980), 731 F.2d 1196, U.S. cert.
denied 446 U.S. 984
Patterson v. State, 598 S.W.2d 265 (Tex. Cr. App. 1980)
Brent v. White, 398 F.2d 503 (5th Cir. 1968) U.S. cert. denied 393 U.S. 1123)
Escamilla v. State, 556 S.W.2d 796 (Tex. Cr. App. 1977)
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (1966)
Smith v. State, 557 S.W.2d 299 (Tex. Cr. App. (1977)
HOT PURSUIT CASES
Chapman v. U.S., 365 U.S. 610, 81 S.Ct. 776
Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642
U.S. v. Santana, 427 U.S. 38
Payton v. New York, 445 U.S. 573 (1980)
Welsh v. Wisconsin, 104 S.Ct. 2091 (1984)
Parker v. State, 372 S.W.2d 320 (Tex. Cr. App. 1963)
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Exigent Circumstances – Prevent Destruction of Evidence
U.S. v. Jeffers, 342 U.S. 48
Chapman v. U.S., 365 U.S. 610
Vale v. Louisiana, 399 U.S. 30
Cupp v. Murphy, 93 S.Ct. 2000 (1973)
U.S. v. Shima, 545 F.2d 1026 (5th Cir. 1977)
Gonzalez v. State, 588 S.W.2d 582 (Tex. Cr. App. 1979)
Nesloney v. State, 653 S.W.2d 582 (Tex. App. 14 Dist. 1983), affirmed 711 S.W.2d 636
(Tex. Cr. App. 1986)
Consent to Search Cases
Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788
Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973)
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971)
U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988
U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870
Papskar v. State, 484 S.W.2d 731
Zeoeda v. State, 638 S.W.2d 542
Clemons v. State, 605 S.W.2d 567 (Tex. Cr. App. 1980)
Kolb v. State, 532 S.W.2d 87
Gurleski v. U.S., 405 F.2d 253 (5th Cir.), U.S. cert. denied 395 U.S. 977
Beaupre v. State, 526 S.W.2d 811, U.S. cert. denied 423 U.S. 1037
Swinney v. State, 529 S.W.2d 70
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Gonzalez v. State, 588 S.W.2d 355 (Tex. Cr. App. 1979)
DeVoyle v. State, 471 S.W.2d 77
Sorenson v. State, 478 S.W.2d 532
Stoner v. California, 376 U.S. 483, 84 S.Ct. 889
Powers v. State, 459 S.W.2d 847
Martin v. State, 610 S.W.2d 491 (Tex. Cr. App. 1981)
U.S. v. White, 401 U.S. 745, 91 S.Ct. 1122
Stephenson v. State, 494 S.W.2d 900
Jefferson v. State, 452 S.W.2d 462
Johnson v. U.S., 358 F.2d 139 (1966)
Swift v. State, 509 S.W.2d 586
Frazier v. Cupp, 394 U.S. 731 (1969)
Moffett v. Wainwright, 512 F.2d 496 (5th Cir. 1975)
Eisenhauer v. State, 678 S.W.2d 947 (Tex. Cr. App. 1984), 684 S.W.2d 782 (Tex. App.
1 Dist. 1984)
Plain View Cases
Coolidge v. New Hampshire, 403 U.S. 433, 915 S.Ct. 2022
Warden v. Hayden, 387 U.S. 294
Chimel v. California, 395 U.S. 752
Harris v. U.S., 390 U.S. 234
Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371
Bailey v. State, 629 S.W.2d 189 (Tex. App. 1982)
Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535 (1983) on remand 657 S.W.2d 797 (Tex.
Cr. App. 1983)
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Howard v. State, 599 S.W.2d 597 (see Curren v. State, 656 S.W.2d 124, 128 & Texas v.
Brown, supra)
Sullivan v. State, 626 S.W.2d 58 (Tex. Cr. App. 1982)
Miller v. State, 667 S.W.2d 773 (Tex. Cr. App. 1984)
Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812
Boyd v. State, 621 S.W.2d 616 (Tex. Cr. App. 1981)
Gonzales v. State, 388 F.2d 145 (5th Cir.)
Katz v. State, 389 U.S. 34, 88 S.Ct. 507
Abandoned Property Cases
Hawkins v. State, FWApp, 644 S.W.2d 764 (Tex. App. 1982)
U.S. v. Williams, 569 F.2d 823 (5th Cir. 1978)
U.S. v. Colbert, 474 F.2d 174 (5th Cir. 1973)
Abel v. U.S., 362 U.S. 217, 80 S.Ct. 683
U.S. v. Beck, 602 F.2d 726 (5th Cir.)
Sullivan v. State, 564 S.W.2d 698
No Standing Complaint Cases
Sullivan v. State, 564 S.W.2d 698
Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421
U.S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547
Wilson v. State, 692 S.W.2d 661 (Tex. Cr. App. 1984)
Open Fields Cases
Oliver v. U.S., 466 U.S. 170, 35 Cr.L. 3011 (4-17-84)
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U.S. v. Dunn, 674 F.2d 1093, on remand 766 F.2d 880, recalled 781, F.2d 52,
reinstated 782 F.2d 1226, reversed S.Ct. 40 Cr.L. 3313 (3-3-87)
Atwell v. U.S., 414 F.2d 136 (5th Cir. 1969)
Wheeler v. State, 659 S.W.2d 381 (Tex. Cr. App. 1982)
Hurwitz v. State, 673 S.W.2d 347, U.S. cert. denied 106 S.Ct. 884
U.S. v. Holmes, 521 F.2d 859, 869-70, See rehearing 537 F.2d 227, 233-34 (5th Cir.)
Ochs v. State, 543 S.W.2d 355, U.S. cert. denied 429 U.S. 1062
Ebarb v. State, 598 S.W.2d 842 (Tex. Cr. App. 1980)
Dow Chemical Co. v. U.S., 106 S.Ct. 1819 (1986)
California v. Ciraolo, 106 S.Ct. 1809 (1986)
Katz v. U.S., 389 U.s. 347 (1967)
U.S. v. Cuevas - Sanchez, 41 Cr.L. 2311 (5th Cir. 6-29-87).
Inventory Cases
Backer v. State, 656 S.W.2d 463 (Tex. Cr. App. 1983)
Stephen v. State, 677 S.W.2d 42 (Tex. Cr. App. 1984)
Kelley v. State, 677 S.W.2d 34 (Tex. Cr. App. 1984)
Benavides v. State, 600 S.W.2d 809 (Tex. Cr. App. 1980)
South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092
Cooper v. California, 386 U.S. 58
Cady v. Dombrowski, 413 U.S. 433
Harris v. U.S., 390 U.S. 234
Gilmore v. State, 666 S.W.2d 136
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Guillett v. State, 677 S.W.2d 46 (Tex. Cr. App. 1984)
Duncan v. State, 680 S.W.2d 555
U.S. v. Piatt, 576 F.2d 659 (5th Cir. 1978)
Collin v. State, 630 S.W.2d 890
Wallis v. State, 636 S.W.2d 1
Daniels v. State, 600 S.W.2d 813
Smyth v. State, 634 S.W.2d 721 (Tex. Cr. App. 1982)
U.S. v. Adams, 424 F.2d 175 (5th Cir. 1970)
U.S. v. Pennington, 441 F.2d 249 (5th Cir. 1971), U.S. cert. denied 404 U.S. 854)
Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605 (1983)
Case Decisions dealing with Search Warrants
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509
Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317
U.S. v. Ventresca, 380 U.S. 102
Jones v. State, 579 S.W.2d 240
Sherlock v. State, 632 S.W.2d 604 (Tex. Cr. App. 1982)
Spencer v. State, 672 S.W.2d 451 (Tex. Cr. App. 1984)
Olivas v. State, 631 S.W.2d 553 (Tex. Cr. App. 1982)
Haynes v. State, 475 S.W.2d 739
Cantu v. State, 557 S.W.2d 1207
Gurleski v. U.S., 405 F.2d 253 (5th Cir.)
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Phenix, v. State, 488 S.W. 2d 767
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506
James v. State, 139 S.W.2d 587
White v. State, 45 S.W.2d 225
Bentley v. State, 178 S.W.2d 521
Hernandez v. State, 255 S.W.2d 219
Heredia v. State, 468 S.W.2d 833
Massachusetts v. Sheppard, 104 S.Ct. 3424 (1984)
U.S. v. Leon, 104 S.Ct. 3405 (1984)
Acosta v. Beto, 425 F.2d 963 (5th Cir.); Acosta v. State, 403 S.W.2d 434, U.S. cert.
denied 400 U.S. 928.
U.S. v. Bell, 457 F.2d 1231 (5th Cir.)
U.S. v. Rajewich, 470 F.2d 666 (5th Cir.)
Wetherby v. State, 482 S.W.2d 852
Abercrombie v. State, 528 S.W.2d 578
Wright v. State, 646 S.W.2d 460 (Tex. Cr. App. 1983)
Kemp v. State, 464 S.W.2d 141
Peltier v. State, 626 S.W.2d 30 (Tex. Cr. App. 1981)
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674
Ramsey v. State, 579 S.W.2d 920
Longoria v. State, 636 S.W.2d 521 (Tex. App.)
Gentry v. State, 629 S.W.2d 77 (Tex. App.)
Jones v. U.S., 362 U.S. 257, 80 S.Ct. 725
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U.S. v. Plemmons, 336 F.2d 731
Garcia v. State, 459 S.W.2d 839
Stoddard v. State, 475 S.W.2d 744 (1972)
U.S. v. Jackson, 41 Cr.L. 2215 (5th Cir. 5-20-87).
Heitman v. State, 815 S.W. 2d 681, 682 (Tex. Crim. App. 1991)
Exclusionary Rule “Fruits of Posion Tree Doctrine”
Article 38.23 CCP (State exclusionary rule)
Mapp v. Ohio, 367 U.S. 643 (1961) (Federal exclusionary rule)
Civil Rights & Liability Cases
Diamond v. Maryland, 395 F.Supp 432
Mapp v. Ohio, 367 U.S. 643 (1961)
Monell v. New York City Department of Social Services, 436 U.S. 658
Malley v. Briggs, 106 S.Ct. 1092 (1986)
Harlow v. Fitzgerald, 457 U.S. 800 (1982)
Pierson v. Ray, 386 U.S. 547 (1967)
Owen v. City of Independence, Missouri, 445 U.S. 622 (1980)
Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388, 91 S.Ct. 1999
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473
Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689
Durison v. Kmart, 559 F.2d 1274 (1977)
Lamb v. Cartwright, 393 F.Supp 1081 (1975), affirmed 524 F.2d 238
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Sexton v. Gibbs, 327 F.Supp 134 (1970), affirmed 446 F.2d 904, U.S. cert. denied 404
U.S. 1062
Hampton v. U.S., 96 S.Ct. 1648, 425 U.S. 484
Hunter v. Clardy, 558 F.2d 290 (1977)
Mundy v. State of Ga., 586 F.2d 507 (1978)
Reeves v. City of Jackson Miss., 608 F.2d 644 (1979)
Vela v. White, 703 F.2d 147 (1983)
Vasquez v. Snow, 616 F.2d 217 (1980)
Duncan v. Barnes, 592 F.2d 1336 (1979)
Creamer v. Porter, 754 F.2d 1311 (1985)
Bodzin v. City of Dallas, 768 F.2d 722 (1985)
Reimer v. Short, 578 F.2d 621 cert. denied 99 S.Ct. 1425, 440 U.S. 947 (1978)
Taylor v. Gibson, 529 F.2d 709 (1978)
Burton v. Waller, 502 F.2d 1261 (1974), cert. denied 95 S.Ct. 1356, 420 U.S. 964
Cronen v. Nix, 611 S.W.2d 651 (App. 1 Dist. 1980) RNRE, U.S. cert. denied 454 U.S.
833 (1981)
Wanger v. Bonner, 621 F.2d 675
Roberts v. Bohac, 574 F.2d 1232 (5th Cir. 1978)
Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979)
Anderson v. Creighton, 41 Cr.L. 3396
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Texas Code of Criminal Procedure
Art. 18.01. [304] SEARCH WARRANT. (a) A "search warrant" is a written order, issued
by a magistrate and directed to a peace officer, commanding him to search for any
property or thing and to seize the same and bring it before such magistrate or
commanding him to search for and photograph a child and to deliver to the magistrate
any of the film exposed pursuant to the order.
(b) No search warrant shall issue for any purpose in this state unless sufficient
facts are first presented to satisfy the
issuing magistrate that probable cause does in fact exist for its issuance. A sworn
affidavit setting forth substantial facts
establishing probable cause shall be filed in every instance in which a search warrant is
requested. The affidavit is public
information if executed, and the magistrate's clerk shall make a copy of the affidavit
available for public inspection in the
clerk's office during normal business hours.
(c) A search warrant may not be issued pursuant to Subdivision (10) of Article
18.02 of this code unless the sworn affidavit required by Subsection (b) of this article
sets forth sufficient facts to establish probable cause:
(1) that a specific offense has been committed,
(2) that the specifically described property or items that are to be searched for or
seized constitute evidence of that offense or evidence that a particular person
committed that offense, and
(3) that the property or items constituting evidence to be searched for or seized are
located at or on the particular person, place, or thing to be searched. Except as
provided by Subsections (d) and (i) of this article, only a judge of a municipal court or
county court who is an attorney licensed by the State of Texas, statutory county court,
district court, the Court of Criminal Appeals, or the Supreme Court may issue warrants
pursuant to Subdivision (10), Article 18.02 of this code.
(d) Only the specifically described property or items set forth in a search
warrant issued under Subdivision (10) of Article 18.02 of this code or property, items or
contraband enumerated in Subdivisions (1) through (9) or in Subdivision (12) of Article
18.02 of this code may be seized. A subsequent search warrant may be issued
pursuant to Subdivision (10) of Article 18.02 of this code to search the same person,
place, or thing subjected to a prior search under Subdivision (10) of Article 18.02 of this
code only if the subsequent search warrant is issued by a judge of a district court, a
court of appeals, the court of criminal appeals, or the supreme court.
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(e) A search warrant may not be issued under Subdivision (10) of Article 18.02
of this code to search for and seize property or items that are not described in
Subdivisions (1) through (9) of that article and that are located in an office of a
newspaper, news magazine, television station, or radio station, and in no event may
property or items not described in Subdivisions (1) through (9) of that article be legally
seized in any search pursuant to a search warrant of an office of a newspaper, news
magazine, television station, or radio station.
(f) A search warrant may not be issued pursuant to Article 18.021 of this code
ss the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts
to establish probable cause:
(1) that a specific offense has been committed;
(2) that a specifically described person has been a victim of the offense;
(3) that evidence of the offense or evidence that a particular person
committed the offense can be detected by photographic means; and
(4) that the person to be searched for and photographed is located at the
particular place to be searched.
(g) A search warrant may not be issued under Subdivision (12), Article 18.02,
of this code unless the sworn affidavit required by Subsection (b) of this article sets
forth sufficient facts to establish probable cause that a specific felony offense has been
committed and that the specifically described property or items that are to be searched
for or seized constitute contraband as defined in Article 59.01 of this code and are
located at or on the particular person, place, or thing to be searched.
(h) Except as provided by Subsection (i) of this article, a warrant under
Subdivision (12), Article 18.02 of this code may only be issued by:
(1) a judge of a municipal court of record who is an attorney licensed by the
state;
(2) a judge of a county court who is an attorney licensed by the state; or
(3) a judge of a statutory county court, district court, the court of criminal
appeals, or the supreme court.
(i) In a county in which the only judge serving the county who is a licensed
attorney is a district judge whose district includes more than one county or in which
the only judges serving the county who are licensed attorneys are two or more district
judges each of whose district includes more than one county, any magistrate may issue
a search warrant under Subdivision (10) or Subdivision (12) of Article 18.02 of this
code. This section is not applicable to a subsequent search warrant under Subdivision
(10) of Article 18.02 of this code.
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Intermediate Arrest, Search, and Seizure 2108
Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff.
Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff.
May 25, 1977; Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 1, eff.
June 11, 1979; Acts 1979, 66th Leg., p. 1076, ch. 505, Sec. 1, eff.
Sept. 1, 1979; Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, 4,
eff. Sept. 1, 1981; Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 1,
eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 686, Sec. 1, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 2, eff.
Oct. 18, 1989; Acts 1991, 72nd Leg., ch. 73, Sec. 1, eff. May 9,
1991; Acts 1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 604, Sec. 1, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 167, Sec. 1, eff. Aug. 30, 1999; Acts 1999,
76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Acts 2001, 77th
Leg., ch. 1395, Sec. 1, eff. June 16, 2001.
Art. 18.02 GROUNDS FOR ISSUANCE. A search warrant may be issued to search for
and seize:
(1) property acquired by theft or in any other manner which makes its
acquisition a penal offense;
(2) property specially designed, made, or adapted for or commonly used in the
commission of an offense;
(3) arms and munitions kept or prepared for the purposes of insurrection or
riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling equipment, or gambling
paraphernalia;
(6) obscene materials kept or prepared for commercial distribution or
exhibition, subject to the additional rules set forth by law;
(7) a drug, controlled substance, immediate precursor, chemical precursor, or
other controlled substance property, including an apparatus or paraphernalia kept,
prepared, or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited by law;
(9) implements or instruments used in the commission of a crime;
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(10) property or items, except the personal writings by the accused,
constituting evidence of an offense or constituting evidence tending to show that a
particular person committed an offense;
(11) persons; or
(12) contraband subject to forfeiture under Chapter 59 of this code.
Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff.
Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 2, eff.
May 25, 1977; Amended by Acts 1981, 67th Leg., p. 2790, ch. 755,
Sec. 5, eff. Sept. 1, 1981; Acts 1989, 71st Leg., 1st C.S., ch. 12,
Sec. 3, eff. Oct. 18, 1989; Acts 2003, 78th Leg., ch. 1099, Sec. 16,
eff. Sept. 1, 2003.
Art 18.021: ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED CHILD.
(a) A search warrant may be issued to search for and photograph a child who is alleged
to be the victim of the offenses of injury to a child as prohibited by Section 22.04, Penal
Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code;
aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or
continuous sexual abuse of young child or children as prohibited by Section 21.02,
Penal Code.
(b) The officer executing the warrant may be accompanied by a photographer
who is employed by a law enforcement agency and who acts under the direction of the
officer executing the warrant. The photographer is entitled to access to the child in the
same manner as the officer executing the warrant.
(c) In addition to the requirements of Subdivisions (1) and (4) of Article 18.04
of this code, a warrant issued under this article shall identify, as near as may be, the
child to be located and photographed, shall name or describe, as near as may be, the
place or thing to be searched, and shall command any peace officer of the proper
county to search for and cause the child to be photographed.
(d) After having located and photographed the child, the peace officer executing
the warrant shall take possession of the exposed film and deliver it forthwith to the
magistrate. The child may not be removed from the premises on which he or she is
located except under Subchapters A and B, Chapter 262, Family Code.
(e) A search warrant under this section shall be executed by a peace officer of
the same sex as the alleged victim or, if the officer is not of the same sex as the alleged
victim, the peace officer must be assisted by a person of the same sex as the alleged
victim. The person assisting an officer under this subsection must be acting under the
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Intermediate Arrest, Search, and Seizure 2108
direction of the officer and must be with the alleged victim during the taking of the
photographs.
Added by Acts 1981, 67th Leg., p. 758, ch. 289, Sec. 2, eff. Sept. 1, 1981. Subsec. (a)
amended by Acts 1983, 68th Leg., p. 5319, ch. 977, Sec. 8, eff. Sept. 1, 1983; Subsec.
(d) amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.01, eff. Sept. 1, 1997.
Amended by: Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.11, eff. September 1,
2007.
Art. 18.03 SEARCH WARRANT MAY ORDER ARREST. If the facts presented to the
magistrate under Article 18.02 of this chapter also establish the existence of probable
cause that a person has committed some offense under the laws of this state, the
search warrant may, in addition, order the arrest of such person.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p.
983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
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CRIMINAL LAW - CONSTITUTIONAL LAW - EVIDENCE - FOURTH
AMENDMENT - SEARCH AND SEIZURE - SEARCH WARRANT - STRIP
SEARCH - BODY CAVITY SEARCH
People v. More, 2002 N.Y. Int. 0020 (Feb. 19, 2002).
< http://www.law.cornell.edu/ny/ctap/I02_0020.htm >
ISSUE & DISPOSITION
Issue(s)
Whether, during a warrantless strip search conducted incident to an arrest, a police
officer may ordinarily conduct a body cavity search or seize potential evidence
protruding from a body cavity.
Disposition
No. Absent certain exigent circumstances, a search warrant is required in order to
conduct a body cavity search incident to an arrest, and, accordingly, evidence
discovered in a body cavity without such a warrant is inadmissible under the Fourth
Amendment of the United States Constitution.
SUMMARY
Police officers arrested Defendant in an apartment upon suspicion of drug possession.
Police performed a "quick pat-down" search of Defendant and discovered no weapons.
Police then performed a strip search of Defendant in a bedroom of the apartment.
Police saw part of a plastic bag protruding from Defendant's rectum and removed the
bag, which was filled with cocaine. Defendant submitted a motion for suppression of the
drugs seized from his person on the grounds that the police officers had no probable
cause for the arrest or the body cavity search and no warrant or emergency to justify
the body cavity search. The County Court denied the motion. The Appellate Division
affirmed. The Court of Appeals reversed.
Following the U.S. Supreme Court's analysis in Schmerber v. California, 384 U.S. 757
(1966), the Court held that the police were not justified in requiring Defendant to
submit to a body cavity search incident to his arrest. Absent a search warrant or an
emergency, the search was unreasonable under the Fourth Amendment of the United
States Constitution. The Court noted that the considerations of disarming a suspect or
preserving evidence, which justify a "full search" incident to an arrest, have little
applicability to searches which intrude beyond the body's surface.
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To perform a more invasive search, the Court found that there must be a "clear
indication and not just a chance, that the desired evidence will be found. Moreover,
even with such a "clear indication," a search warrant will ordinarily be required to
perform a body cavity search absent an emergency. An emergency in this context
consists of a reasonable belief by a police officer that the delay of obtaining a search
warrant would pose a threat to the officer's personal safety or cause the destruction of
evidence. The Court held that in the instant case, given the ability to fully restrain and
place Defendant under surveillance while obtaining a search warrant, no exigent
circumstances existed to justify dispensing with such a warrant.
--------------------------------------------------------------Decisions of the New York Court of Appeals are archived in full text at
http://www.law.cornell.edu/ny/ctap/
Summary of Aguilar v. Texas
Citation: 378 U.S. 108 (1964)
Relevant Facts: Houston police officers applied for a search warrant to look for
narcotics in the home of Nick Alford Aguilar. In support of their search warrant
application, officers submitted affidavits explaining that they had received information
from a confidential informant, not named in the application, which they believed to be
reliable. According to the confidential source, Aguilar possessed heroin, marijuana, and
barbiturates in his home for personal use and to sell. The officers submitting affidavits
did not have any personal knowledge regarding the claims in their application, relying
instead on their trust in the information they were provided. The warrant was issued
and police went to Aguilar’s residence to conduct the search. After announcing their
presence and their status, officers heard a commotion inside the home. Forcing their
way inside, officers found Aguilar attempting to dispose of narcotics. Aguilar was
arrested and indicted for drug possession by the State of Texas. At trial, Aguilar moved
to suppress the drugs seized during the search, arguing that the affidavits in support of
the warrant application were insufficient. His suppression motion was denied, Aguilar
was convicted, and his conviction was affirmed on appeal. The Supreme Court granted
certiorari.
Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower
court. Cert. Denied. The abbreviation used in legal citations to indicate that the
Supreme Court denied a Petition for Writ of Certiorari in the case being cited.
Reasonable man theory refers to a test whereby a hypothetical person is used as
a legal standard, especially to determine if someone acted with negligence. This
hypothetical person referred to as the reasonable/prudent man exercises average care,
skill, and judgment in conduct that society requires of its members for the protection of
their own and of others' interests. This serves as a comparative standard for
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Intermediate Arrest, Search, and Seizure 2108
determining liability. For example, the decision whether an accused is guilty of a given
offense might involve the application of an objective test in which the conduct of the
accused is compared to that of a reasonable person under similar circumstances AND
where "a reasonable amount of suspicion, supported by circumstances sufficiently
strong to justify a prudent and cautious person's belief that certain facts are probably
true
Probable cause (also referred to as reasonable cause) is the standard by which an
officer or agent of the law has the grounds to obtain a warrant for, or as an exception
to the warrant requirements for, making an arrest or conducting a personal or property
search, etc. when criminal charges are being considered. It is also used to refer to the
standard to which a grand jury believes that a crime has been committed. This term
comes from the Fourth Amendment of the United States Constitution:
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. "Probable" in this case may relate to actual statistical probability, or to a
general standard of common behavior and customs. The context of the word "probable"
here is not exclusive to community standards and does not predate statistics, as some
have suggested
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