All guides ยท Texas Peace Officer Prep
Search warrants and warrantless searches
Summary of the topic
Texas builds its search warrant rules on the Fourth Amendment and adds detail the federal rule does not carry. Texas requires a sworn affidavit in every case, a closed list of grounds for a warrant, a named class of judge for an evidentiary warrant and a count of whole days for execution. Most of the topic is lists and numbers, so the useful skill is knowing which number or list applies to a given warrant.
Article 18.01(a) defines a search warrant as a written order, issued by a magistrate and directed to a peace officer, that commands the officer to search for property or a thing and to seize it. Under article 18.01(b), the magistrate must be satisfied that probable cause exists, and a sworn affidavit setting out substantial facts establishing probable cause must be filed in every instance. Once the warrant has been executed, the affidavit is public information.
For a warrant to search for evidence of an offense, article 18.01(c) requires the affidavit to establish three things. A specific offense has been committed, the specifically described property or items are evidence of that offense or of who committed it, and the property or items are at or on the particular person, place or thing to be searched. An evidentiary warrant may be issued only by certain judges, including a district court judge, a statutory county court judge, and a municipal court of record or county court judge who is a licensed attorney. Article 18.01(i) is a narrow fallback for counties that have none of the qualifying municipal, county or statutory county court judges.
Article 18.02(a) lists the grounds on which a warrant may issue. They include stolen property, controlled substances and drug paraphernalia, property the possession of which is unlawful, implements used in committing a crime, contraband subject to forfeiture and a cellular telephone or other wireless communications device. Property that is evidence of an offense is also a ground, except the personal writings of the accused.
Article 18.07 counts whole days, leaving out the day the warrant was issued and the day it was executed. The default is three whole days. A warrant issued solely to take a DNA specimen from a named person runs for 15 whole days, and a warrant under article 18B.354 or Subchapter G-1 of Chapter 18B runs for 10 whole days. The magistrate must endorse the date and hour of issuance and may direct a shorter period.
Article 18.06 sets out execution: the officer acts without delay, gives a copy of the warrant to the owner or the person in possession, and prepares a written inventory before taking property. Article 38.23(a) is the Texas exclusionary rule. It bars evidence obtained in violation of the law of Texas or the United States, and it reaches conduct by any person. The only exception in article 38.23(b) is objective good faith reliance on a warrant issued by a neutral magistrate on probable cause.
Provisions this topic covers
- Tex. Code Crim. Proc. arts. 18.01, 18.02, 18.06 and 18.07
- United States Constitution, Amendment 4
Study this topic
Four topics can be studied in full for free. Open the free topics or get access to all 44 topics for $19 a month.