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Illegal Search Warrants: Challenging the Underlying Affidavit

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Texas Defense Attorney Strategies against Illegal Search Warrants

Under Texas law, a “search warrant” is defined as “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.”  Tex. Code Crim. Proc. art. 18.01 (2018).

The Tarrant County Criminal Warrant web page states it another way.  To Dallas area law enforcement, a “warrant” is “an official document signed by a judge or other person in authority which gives the police permission to search someone’s home, arrest a person or take some other action as authorized by the warrant.”

Reading the county’s definition, you might get the idea that police searches are almost limitless as long as there is some kind of permission given to the police officer.  That’s not accurate.

Different Kinds of Warrants: Search Warrant Used to Find Evidence for Arrest

There are different kinds of warrants: e.g., arrest warrants, bench warrants, and search warrants.  The first two deal with arresting someone.  The third, the search warrant, may lead to an arrest but allows for the search and seizure of property to be used as evidence in a possible arrest.

Obviously, lots of search warrants are sought as investigations proceed into potential crimes; search warrants are issued on a daily, even hourly, basis here in Texas.  This does not mean all these searches are legitimate.

Today, we are delving into the abuse of search warrants by police and law enforcement agencies (state and federal) and criminal defense strategies to protect against these abuses. 

Constitutional Protections for Search Warrants

The power of governmental authorities to enter someone’s home, car, phone, or other personal space flies in the face of personal freedoms and our right to privacy in this country.  There is no debate that searches must be carefully monitored and limited in use.  See, Rosenbaum, Dennis P. “Civil liberties and aggressive enforcement: Balancing the rights of individuals and society in the Drug War.” Community justice: an emerging field 203 (1998).

Federal and State Constitutional Provisions

Governmental search is so ripe for abuse that both the United States and Texas Constitutions address the power to do so.  See U.S. Const. amend. IV; Tex. Const. art. I, § 9.

The Fourth Amendment states:

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.

The Texas Constitution provides:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and 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.

Constitutional Protections

There are longstanding, key protections provided under both constitutional provisions that apply to searches done in the State of Texas.  First, each constitution states any search needs to be on condition that a search warrant has been obtained.

  • Law enforcement cannot decide to search whenever they have a whim to do so.

Furthermore, both federal and state constitutional provisions mandate that no search warrant should be issued unless: (1) upon probable cause (2) as supported by an oath or affirmation. See U.S. Const. amend. IV;  Tex. Const. art. I, § 9.

  • The search warrant has to meet certain criteria or it’s not valid.

State Statute and Texas Court Precedent: Affidavits and Probable Cause

The Texas Legislature has passed laws protecting against violations of the power to search. Texas Courts, especially the Texas Court of Criminal Appeals, have added additional limitations on the ability of police to search.

Affidavit Required

First, an official sworn statement in the form of an affidavit must be prepared and presented to the appropriate judicial authority by law enforcement.

In the Texas Code of Criminal Procedure, a statute provides no search warrant shall issue except upon an affidavit establishing probable cause. See Tex. Code Crim. Proc. art. 18.01 (2018).

The Texas Court of Criminal Appeals has ruled that no search warrant can be issued by a magistrate until he or she is presented with an affidavit setting forth facts establishing probable cause. State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011).

Probable Cause in the Affidavit

Second, the statements within the affidavit must demonstrate probable cause to support the invasion of an individual’s privacy.

  • What is probable cause for an affidavit supporting a request for a search warrant?

The CCA explains probable cause exists if, under the totality of the circumstances in the affidavit, there is a “fair probability” that contraband or evidence of a crime will be found in a particular place at the time the warrant is issued.  Rodriguez v. State, 232 S.W.3d 55, 60 (Tex.Crim.App. 2007).

Who Signs the Affidavit? Who Signs the Warrant?

In Texas, search warrants are signed by judge, while the affidavit supporting the request for that search warrant is signed by a member of law enforcement.

  • Two documents much be considered here insofar as protecting legal rights and civil liberties.

From a criminal defense perspective, challenging the search warrant may happen as the investigation proceeds (before any arrest) or after charges have been filed.

However, while it is possible to challenge a search warrant based upon its own terms, it is much more likely that the defense will find issue with the affidavit used by the police to get permission to do their search.

Challenging the Affidavits Used by Police to Get the Search Warrant

Usually, it has been my experience that challenges must be made against the affidavits. The defense lawyer must consider the affidavit in detail, considering how it may form the basis for a motion to exclude or suppress evidence or even to dismiss the case.

An aggressive defense challenge to the affidavit used by police to get a search warrant can end up getting a case no billed by the grand jury, or even used to end a police investigation.

There are two types of criminal defense challenges to a search warrant affidavit:

  • Lack of Probable Cause; and
  • Franks Hearings.

1.  Lack of Probable Cause Challenge to Affidavit: Not Enough to Invade Privacy

The general rule is that the search warrant should not be issued; it is only if the police meet the burden to show “probable cause” that a judge should override someone’s constitutional rights and allow an intrusion by law enforcement.

Outlining Probable Cause

It is the defense’s job to evaluate the search warrant affidavit and decide if it fails to provide sufficient probable cause to allow for a search.  Did the police affidavit meet this burden or not?

  • What is this burden?

The Texas Court of Criminal Appeals has explained that probable cause to search exists when: (1) reasonably trustworthy facts and circumstances (2) within the knowledge of the officer on the scene would (3)lead a man of reasonable prudence to believe that (a) the instrumentality of a crime or (b) evidence of a crime will be found. Washington v. State, 660 S.W.2d 533, 535 (Tex.Cr.App.1983).

  • How do you know if the police failed to meet this burden?

SCOTUS has defined the standard for probable cause in criminal search warrants as follows:

“[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the “laminated total …” In dealing with probable cause, … as the very name implies, we are dealing with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1948)Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App. 1982) (opinion on rehearing).

To Search and To Seize

When evaluating probable cause in a search warrant, there must be a consideration of probable cause to search in the first place, as well as probable cause to seize property during the search itself.

The police officer must have provided facts and circumstances that would suggest to any reasonable person that either a crime was committed at the location, or evidence of criminal activity is there (like contraband, stolen goods, etc.).

Details are important.  The search warrant affidavit has to be specific not only about the place to be searched, but this purported evidence or criminal activity that forms the basis for the search request.

  • Police can seize only what is described in the warrant, pursuant to the underlying affidavit.

Power of the Probable Cause Challenge

If the search itself resulted from an affidavit that fails to meet the probable cause standard, then the Exclusionary Rule applies.  The evidence cannot be used by the prosecutor.  The evidence is suppressed, and as a result, the case may be dismissed.

2.  Franks’ Hearing Challenge to Search Warrant Affidavit: When Police Lie

The police can – and do – lie in affidavits in order to get search warrants issued by judges.  There can be a great temptation to twist the facts in order to get into a home, car, or phone and snoop around for something that can be used to arrest someone.

Prosecutors know that some police officers are not trustworthy to testify.  See our earlier discussion of the prosecutor’s list in “Police Who Lie on The Witness Stand: Did You Know Prosecutors Keep Lists Of Their Names?

Of course, the victim of these falsehoods cannot stop them from happening; however, he can challenge the affidavit in court and bring the lies out into the daylight.  Officially, this is done in something called a “Franks Hearing.”

The name originates in a Supreme Court case, Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).  In Franks, SCOTUS set up the steps the defendant takes to challenge a search warrant.  He must request an evidentiary hearing before the judge, and in this request he must do the following:

  1. show with a detailed offer of proof that the affidavit contains a false statement;
  2. The defendant must also show that the statement was made either (1) knowingly and intentionally, or (2) with reckless disregard for the truth;
  3. Afterwards, the defendant must connect the falsehoods in the affidavit to the granting of the search warrant: the lie (or lies) must be critical and important to the decision that there was probable cause to do the search; and
  4. He must also demonstrate that if the lies are excluded from consideration, that there is not enough evidence remaining in the affidavit to support a finding of probable cause.

How this is done in Texas courts is explained in Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007).  The defendant must:

  1. allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false;
  2. accompany these allegations with an offer of proof stating the supporting reasons; and
  3. show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support the issuance of the warrant.

Finally, at the hearing, the defense must be prepared to fight.  It is likely that the prosecution will call the police officer to the witness stand to try and explain away his lies.  See, Cates v. State, 120 S.W.3d 352 (Tex. Crim. App. 2003).

Power of the Franks Hearing

At the Franks Hearing, once the police perjury is proven and it is shown to be critical to establishing probable cause for the search warrant, then the search warrant must be voided pursuant to the Franks decision.

Even more powerful here, under Franks any and all evidence (documents, items, or testimony) obtained in the search, pursuant to the void search warrant, must be excluded from the case.  It cannot be used by the prosecution in their case against the defendant.

Challenging Affidavits: During Investigations or After Case is Filed?

No one has to wait until they are arrested to challenge a search warrant.  As a criminal defense attorney, I suggest that anyone believing they are under police investigation get legal counsel and fight against any attempts to violate their legal rights.

During Investigations

For instance, it is very important never to cooperate with law enforcement investigation requests for DNA or other physical evidence.

A suspect to an investigation is always better off forcing the police to publicly disclose their evidence when they make the search warrant application affidavit with a district judge or magistrate.

This information can then be used by a good criminal defense lawyer to defeat a police investigation with evidence the police wouldn’t otherwise need to deal with.

For example, a pre-charge affidavit in a sexual assault case can be used to obtain a privileged polygraph result from a legitimate polygrapher. That result can be used to get the case no billed by the grand jury or even used to end a police investigation. (This defense technique is something that I have successfully used on behalf of my clients many times over the years.)

After Case Is Filed

After the case is filed and charges are brought against the defendant, the defense will be able to read the search warrant affidavit.  The affidavit is a public record.

This is very important because this search warrant affidavit will contain important secret details of the police investigation. These details are not available before a case is filed.

It will be important to move quickly in challenging the affidavit, once it is available to the defense.

Prosecutors Trying to Seal the Affidavit

Another hurdle that may be faced:  responding to a prosecutor’s motion to seal the affidavit, keeping it out of the public record.  Sometimes the police (in Texas courts or federal courts) seek to seal the affidavit.  This must be done pursuant to court order, and within a set time period.

Pursuant to Tex. Code Crim. Proc. art. 18.011, the judge can seal the affidavit if the prosecutor can prove “a compelling state interest” to do so.  This is defined in the statute as:

(1)  public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence;  or

(2)  the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.

The Order Has a Time Limit

Under the statute, the seal expires on the 31st day after the date on which the search warrant for which the affidavit was presented is executed.  (The prosecutor may be able to get an extension here:  the law allows a single 30-day extension of time if the prosecutor comes forward with enough evidence to support a new finding of compelling state interest.)

Once the seal expires, the affidavit must be unsealed.

Police Entering Your Home, Car, or Phone Illegally: Zealous Criminal Defense

All too often, police or other law enforcement agents take it upon themselves to conduct searches of homes, cars, offices, phones, etc., without the legal right to do so.  Some will go so far as to lie to a judge or magistrate because they are so hell-bent in their investigations.

Search warrants must be carefully considered and zealously defended against in any criminal proceeding here in Texas.

Successful criminal defense challenges may result in ending an investigation before any arrest is made, or swiftly terminating charges against someone who has been the victim of an illegal search warrant.


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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