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Challenging the Search Warrant in Texas: Illegal Search and Seizure

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Different Defenses to Search Warrants and Illegal Searches by the Police

Evidence is everything for the prosecution’s case in any criminal proceeding, federal or state.  Without evidence, the case has no legal foundation and cannot be filed.  Once filed, insufficient evidence means the state’s case must be dismissed.

Therefore, from a criminal defense perspective, one of the first tasks in defending against criminal charges is to inspect each piece of evidence, as well as questioning how it was obtained.

Often, this means scrutinizing one or more search warrants that allowed law enforcement to seize the items now being submitted as evidence by the state.  Comprehensive examination of the search warrant itself must be done.  If the search warrant fails to pass legal muster, then the evidence obtained through the execution of that search warrant can be challenged by the defense and excluded from use by the prosecution.

Defending against a search warrant may mean weakening the case against the defendant, which can result in lesser charges or an enhanced plea bargaining position.  Sometimes, it can mean the entire case must be thrown out for insufficiency once the tainted evidence is excluded.


What is a Search Warrant?

Constitutional protections in both the state and federal constitutions mandate that every citizen’s privacy must be respected and the police cannot violate that privacy unless certain legal protocols are followed.  From a constitutional perspective, searches and seizures are considered to be both unreasonable and illegal until the government demonstrates otherwise.  U.S. CONST. amend. IV; TEX. CONST. art. I, § 9.

This is why the local police, state troopers, and federal law enforcement agents use “search warrants.”  An effective search warrant is the means used to show the police had a right to invade the citizen’s privacy.

A search warrant is document signed by a judge.  It gives law enforcement the right (1) to search a specific place and once there, (2) to seize specific items.  Legally, before issuing the warrant, a judge must find there is “probable cause” that a crime was committed and that things connected to that crime are likely to be discovered in the place described in the warrant.

Article 18.01 of the Texas Code of Criminal Procedure provides the following definition of “search warrant” for state prosecutions:

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.

Forms are provided to help law enforcement prepare a search warrant for presentation to the judge (or magistrate).  The image below is an example of the search and seizure warrant used in the federal system.

Probable Cause for a Search Warrant

The Supreme Court of the United States (SCOTUS) provides the definition for “probable cause” in both state and federal warrants.  As long ago as 1925, SCOTUS explained that there is probable cause for the police to seek a search warrant when:

“… the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that [a crime has happened or is about to happen].”

Carroll v. United States, 267 U.S. 132, 162 45 S. Ct. 280, 69 L. Ed. 543 (1925).

SCOTUS also explains:

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll, 267 U.S. at 149.

The judge must be presented with confirmation that “probable cause” exists before the judge can sign the search warrant and allow the search (and seizure) to proceed.  No probable cause, no search.

Affidavits Supporting the Search Warrant Request

How is this done?  The police cannot simply sit down with the judge in chambers and tell their side of the story, or give a wish list of what they hope to find.  The judge must be provided with evidence that establishes “probable cause” to support invasion of the citizen’s privacy.

This is accomplished by the police providing their own signed and sworn affidavit, which includes evidence justifying their application to the judge for the warrant.

Judges may be given witness statements, for instance, or documentary evidence that shows the “facts and circumstances” within the government’s knowledge that allows the search to happen.  See, Carroll.

Requirements of the Search Warrant Affidavit

Under Article 18.01(b) of the Texas Code of Criminal Procedure, specific requirements in state prosecutions are given:

  • No Warrant Without Presentation of Probable Cause
    • 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.
  • No Warrant Without Sworn Affidavit Establishing Probable Cause
    • A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.

The Search Warrant Affidavit must be attested to by the police officer who provides his or her sworn signature affirming its truth and veracity.  A law enforcement officer must swear to it under oath.

The Search Warrant Affidavit must set forth sufficient facts to establish probable cause that:

(1) a specific offense has been committed,

(2) 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) 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.

See Article 18.01(c) of the Texas Code of Criminal Procedure.

What if the Police Lie in the Search Warrant Affidavit?

If the police officer is dishonest, exaggerates, or optimistically assumes things in the sworn affidavit, then the search is illegal even if the judge signs the warrant.

A judge’s signature cannot obliterate the need for the affiant police officer to be truthful and accurate in all the statements made in the Search Warrant Affidavit.


Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truthFranks v. Delaware, 438 U. S. 154 (1978).

(For more on Franks Hearings, see below.)

Challenging the Search Warrant Affidavit: Lack of Probable Cause

Reviewing the Affidavit that supported the application for a search warrant to be issued requires the defense lawyer to consider every single statement within it.  One focus: was there really probable cause to allow for the search?

Probable cause can be found not just in one sentence or two of the Search Warrant Affidavit, but in a consideration of the “totality of the circumstances” shown in it. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Hennessy v. State, 660 S.W.2d 87, 90 (Tex.Crim.App.1983);

However, the Search Warrant Affidavit must have substance.  Its contents have to be more than a “mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause.” Gates, 462 U.S. at 238-239.  The judge has to have “sufficient information” to allow him or her to find probable cause exists.

Above all, the judge’s decision to grant the request for a search because of a showing of probable cause in the Affidavit must have an independent determination; it “…cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 238-239.

The defense must find solid issues with the statements found in the Affidavit as supporting probable cause, with a recognition that the judge is allowed to interpret the Affidavit’s contents in “a common sense and realistic manner” and that the judge can also make reasonable inferences from the Affidavit’s language in order to find probable cause to grant the request for the warrant. Hespeth v. State, 249 S.W.3d 732, 737 (Tex. App.-Austin 2008, pet. ref’d).

If the prosecution can defend the granting of the search warrant by demonstrating that the judge had a substantial basis for concluding probable cause existed, then the defense challenge will fail.   Gates, 462 U.S. at 236-37, 103 S.Ct. 2317Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004).

Challenging the Search Warrant Affidavit:  Errors in Time or Place

Sometimes, the defense will argue that the Affidavit supporting the application for a search warrant was “stale” by the time it was presented to the judge, or it failed to properly identify the place to be searched.  Was the Search Warrant timely? Was the place to be searched identified with particularity?

Time Errors

Time is very important when considering the validity of a search warrant.  The police must show that the things they seek to seize – the object of the search – is likely to be on the premises or property at the very moment that they are asking for the warrant allowing them to do a search.

The facts submitted in the affidavit must be enough to justify the judge’s conclusion that the property that is the object of the search is probably on the premises to be searched at the time the search warrant is issued by the judge. Peltier v. State, 626 S.W.2d 30 (Tex.Cr.App.1981).

One example of where time must be carefully considered in a search warrant is when an anonymous tip has spurred the police into action.  If the search warrant application’s affidavit fails to state when the affiant police officer got the tip; when the informer obtained the information; or when the conduct described in the affidavit took place, then the search is illegal because the affidavit was stale and legally insufficient to support the issuance of a search warrant. Schmidt v. State,659 S.W.2d 420, 421 (Tex.Crim.App.1983)Peltier v. State, 626 S.W.2d 30, 32 (Tex.Crim.App.1981)Heredia v. State, 468 S.W.2d 833, 835 (Tex.Crim.App.1971).

Why?  The argument is that the affidavit is untimely because it cannot justify the conclusion that the property that is the object of the search will be on the property at the time the warrant is signed by the judge.

Place Errors

Another defense argument against the search can be based upon how the premises are referenced in the documentation supporting the search.  The language of the Fourth Amendment demands that the search warrant be specific as to the place being searched (emphasis added):

“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.”

If the Search Warrant Affidavit fails to include statements defining the place to be searched, then it is invalid on its face.  However, this is not the usual objection to a Search Warrant Affidavit based on place.  More often, defense attorneys find errors in how the premises or property to be searched is delineated in the affidavit’s language.

A search warrant affidavit must be able to provide the location of the property to be searched and to distinguish it from other places in the community.  If the search warrant fails to properly describe the place to be searched, then it can be found insufficient and the search deemed illegal.  Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Crim.App.1978)see Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925) (“It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.”).

If the affidavit gives the wrong address, or the right address but the wrong apartment number, then the defense may successfully challenge the search and suppress the evidence that was seized.

 Challenging the Search Warrant: The 4 Corners Rule

When challenging the validity of a search warrant, the defense must also consider whether or not there has been a violation of the “Four Corners Rule.”

The judge must confine his determination regarding probable cause to the Search Warrant Affidavit itself, looking only to its “four corners.”  He can make reasonable inferences from the stated facts within the affidavit, but he cannot consider anything outside the statements found in the affidavit itself.

Moreover, he must consider those statements within the Search Warrant Affidavit in a commonsense and realistic manner.  An unreasonable reading of the statements contained within the search warrant application’s affidavit may be a basis for a motion to suppress evidence seized in the execution of that warrant.

“A search warrant affidavit must be read in a commonsense and realistic manner, and reasonable inferences may be drawn from the facts and circumstances contained within its four corners.”   Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim.App.1986).

When the defense challenges a Search Warrant Affidavit, the issue will be whether or not probable cause can be found to exist from looking at only its four corners, including any reasonable inferences that can be made from the facts and circumstances described within it.

If the defense can show that the judge went outside the “four corners,” then the search was illegal and the evidence can be suppressed.

False Statements in the Search Warrant Affidavit: What is a Franks Hearing?

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) SCOTUS explained how the defense successfully challenges a search warrant based upon falsehoods.  Today, when the defense lawyer files a request for the court to consider arguments challenging a dishonest Search Warrant Affidavit, the hearing is called a “Franks Hearing.”  It is an evidentiary hearing.

In Franks, SCOTUS recognizes the defense’s right to challenge all aspects of the search warrant affidavit which has been used to seize property now being used as evidence against the accused.  At a Franks hearing, the defendant first presents a preliminary demonstration that the Search Warrant Affidavit contains a false statement:

(1) made knowingly and intentionally by the affiant, or

(2) with reckless disregard for the truth.

The defense has to do this with specific evidence of its own, to counter what was stated in the affidavit.  The burden of proof is by a preponderance of the evidence.

The defense must then demonstrate these false statements are necessary to the finding of probable cause that justified the search.  This is done by showing once these falsehoods are excluded there is not enough left in the Affidavit to support a search warrant being issued.

Unless the prosecution can demonstrate the Search Warrant Affidavit, on its four corners, can still establish probable cause for a search without consideration of the falsehoods, the defense will prevail and the search will be found illegal with the seized evidence suppressed and excluded.

Defending Against a Search Warrant in State or Federal Court

Search warrants must be scrutinized in all their facets as part of any aggressive criminal defense strategy.  It can be shocking to find how often errors are made by police in obtaining a search warrant, and exasperating to discover how many times falsehoods pop up in affidavits seeking to search someone’s home, car, or computer.

For more information, see:


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”


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