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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.06 Texas’ 4th Amendment

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.06 Texas’ 4th Amendment – Brian Foley Board Certified in Criminal Law in Houston, Texas.

Article 1.06 of the Texas Code of Criminal Procedure is a mirror of the 4th amendment to the United States Constitution. Where the 4th amendment holds that the people shall be secure in their persons, houses, papers, and effects, the Texas Code of Criminal Procedure reads “persons, houses, papers and possessions.” I suppose the term effects seemed dated to the drafters in 1965.

The article goes on to state that no warrant to search any place or seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation. This is the Texas Warrant requirement law.

Article 1.06 is a foundational provision in the Texas Code of Criminal Procedure. It is applied to cases every day from DWIs where blood search warrants may be challenged as lacking probable cause, or cell phone warrants on murder cases.

The first thing to know about search and seizure law is that not everything the police look through constitutes a search. For example, if the police look through your car window during a traffic stop and see drug paraphernalia in plain view then that is not considered a search at all and the protections of a warrant are abandoned according to the Supreme Court of the United States and Texas Courts interpreting Article 1.06. Here are some notable exceptions to the warrant requirement.

  • Plain View

  • Exigent Circumstances

  • Hot Pursuit

  • Good Faith Exception (Does not apply to Texas State Cases)

  • Consent

Plain view as we covered above, refers to when an officer sees something that is potentially evidence of criminal conduct and the officer observes it from a place where the officer has lawfully entered. In the car example the officer may look through a window in a parking lot or on the side of the road. If the officer is invited into a house with the consent of the owner and then observes contraband it is considered to be in plain view. The Supreme Court of the United States has drawn the line stating in one case that the police may not use infrared scanning equipment even if it is used from a lawful place. This is not considered plain view.

Exigent Circumstances means some type of emergency. For example if someone calls 911 and gives their address stating that they are locked in the bathroom and their husband is trying to beat her up then the police are going to have “exigent circumstances” to enter into the home without a warrant to address the situation. The same was held true in a recent Texas case for police entering a building that was on fire to make sure it was safe for firefighters to enter. If while the police are inside they observe evidence of some other crime, (typically drugs) then the entry to the house is justified under exigent circumstances and then plain view. If the drugs were inside of some other object like a safe and there was no indication that the safe had anything to do with the exigent circumstances then it is less likely that the court would allow a search of that type of container.

Hot Pursuit is an exception to the warrant requirement to enter a home or building because the police are actively chasing a suspect from a public area into a private one. There may be a reasonable expectation of privacy in ones home, but if the police have probable cause to arrest for some conduct which occurred in public or in a place where the officers had the legal right to be present and you run into a private home the police can follow you in if they are in hot pursuit. So how hot does it have to be? REAL HOT! The police need to be right behind you as you enter the door. If 10-15 minutes have passed then its less likely the court would approve of the police actions. There is a strong preference for the police to get a warrant. Modern Technology, email, video conferencing and Houston’s 24 hour judicial facility called the Joint Processing Center make getting a warrant easier than ever before. Is most instances the safer route for everyone involved is to get a warrant.

Federal law as developed by the Supreme Court of the United States holds that officer who rely on a warrant in good faith may use evidence that they collect from that warrant search even if it is later determined that the warrant lacked probable cause. The reasoning is that the exclusionary rule which requires evidence to be suppressed when it is obtained illegally, is supposed to be a discouragement to improper police conduct. But when an officer reasonably relies on the opinion of a magistrate or judge that there is a legal right to search in a particular location then the officer has fulfilled what we asked him to do. Essentially the courts are saying that it was the judge’s mistake and not the police. Texas doesn’t have this exception due to the presence of Article 38.23 of the Texas Code of Criminal Procedure which we will cover later in this series. For now, it will suffice to say that 38.23 disallows the use of evidence obtained in violation of the law regardless of who obtained the evidence.

Art. 1.06. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches. No warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

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