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Executing a warrant and handling seized property

Summary of the topic

Chapter 18 of the Code of Criminal Procedure covers more than issuing a search warrant. It also tells the officer what to do from the moment the warrant is in hand until the magistrate decides what happens to the property. The topic reads best as a sequence: execute, document, return, keep and decide.

Article 18.06(a) requires an officer who receives a search warrant to execute it without delay and to return it to the proper magistrate. The two duties go together, so execution is not complete until the return is made. Under article 18.06(b), the officer presents a copy of the warrant to the owner of the place if the owner is present, or otherwise to a person present who is in possession of the place.

The inventory comes before the taking. Before the officer takes any property from the place, article 18.06(b) requires a written inventory of the property to be taken, with the officer's own name legibly endorsed on it and a copy presented to the owner or other person in possession. If neither the owner nor a person in possession is present, the officer leaves a copy of the warrant and a copy of the inventory at the place.

Article 18.09 deals with what is found. The officer takes possession of the property the warrant directs the officer to seize and carries it before the magistrate, and arrests any person the warrant directs the officer to arrest and takes that person immediately before the magistrate. For Chapter 18, seizure means restraining property by physical force or by a display of an officer's authority, and it includes collecting the property or taking possession of it.

Article 18.10(a) fixes the return. Not later than three whole days after executing the warrant, the officer states on the back of the warrant, or on an attached paper, the manner in which it was executed, and delivers a copy of the inventory to the magistrate. A failure to make a timely return, or to submit the inventory, does not bar the admission of evidence under article 38.23.

Article 18.10(a) also covers custody. The officer who seized the property keeps it until the magistrate orders how it is to be kept, and the property may not leave the county where it was seized without an order from a magistrate in the county where the warrant was issued. Forwarding an item to a laboratory for scientific analysis is allowed. Under articles 18.12 and 18.13, the magistrate tries the questions arising on the return, and if the magistrate is not satisfied there was good ground for issuing the warrant, the magistrate discharges the defendant and orders restitution of the property, except for criminal instruments.

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