Texas search and seizure law: What is reasonable search?

You're at home when the doorbell rings. Standing there is a police officer and during the course of the discussion, he asks if he can search your home. You promptly tell him no. Can he detain you and then conduct a search without any kind of authorization?

According to the Fourth Amendment, the officer does not have the right to search your home unless there is probable cause and the search is a reasonable one. However, many people in Travis County may not have a full understanding of what a reasonable search is, raising the question of when you, your car or your property can be subject to a search.

Probable cause

As you are aware, usually a law enforcement officer should present you with a signed warrant before they search you at home. In order to get a warrant, law enforcement must prove to a judge, or magistrate, authorizing the search warrant that there is a good reason to conduct the search.

Generally, an officer needs to have some tangible proof that indicates you are involved in criminal activity. This can include any one of the following:

  • Surveillance - the officer observes suspicious behavior on your part - such as speaking with known drug dealers or hanging out in an area known for drug activity.
  • Signed affidavit - a person swears that they saw you taking drugs, saw drugs in your home or purchased drugs from you.
  • Hearsay - someone overheard you talking about a drug deal. While hearsay is generally not admissible in court, it can be used for a warrant.
  • Visible evidence - items related to criminal activity can be seen.

If an officer merely suspects that you are involved in a crime, a judge or magistrate is not likely to sign a warrant and will ask for more substantial proof of your personal involvement.

Reasonable search

Recently, The U.S. Supreme Court ruled that a warrantless dog sniff outside of a home constituted an unreasonable search according to Reuters. The case involved a drug dog that detected the presence of marijuana in a private residence; the officer used the dog's sniff to obtain the search warrant. According to the written opinion, the dog's sniff was an invasion of the property owner's privacy and that law enforcement needed to obtain a warrant to bring a trained police dog on private property.

There are times when law enforcement is allowed to conduct a search. For example, if you are stopped for speeding and an officer sees evidence of drugs in the car, then that officer can conduct a search of your vehicle without a warrant. Law enforcement is also allowed to conduct a personal search of your clothing and body if you have been placed in custody.

Evidence obtained from an illegal search can generally be excluded by a judge. Therefore, if you are facing drug possession charges and you feel that you were subjected to an illegal search, it is important to speak with a criminal defense attorney to protect your rights.