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Police Coming Into Texas Homes Without A Search Warrant

Search and Seizure: Police Entering Dorm Rooms, Apartments, Homes

Our story begins a few weeks ago down near Austin, where Tori Thayer and Carly Christine were roommates sharing a home in Pflugerville (maybe you recognize Pflugerville as the place where lots of episodes of the TV show “Friday Night Lights” were filmed).

It was three o’clock in the morning, when Tori was awakened as her house was invaded by four deputies from the Travis County Sheriff’s Office.

By the time she was out of bed and going to answer the door, deputy sheriffs were already inside her house.

Tori was home. Her roommate was not.

Pflugerville Home at Three O’Clock in the Morning

Tori got her phone. She began taking video of what was happening. You can watch Tori’s videos of the police entering her home, uninvited and unannounced, slamming her down on the floor.

From this point, you have to listen to what is happening because Tori has dropped the phone.

You can hear her asserting her rights: “Where is your warrant? She’s not here, you have to leave, what you are doing is against the law.”

The deputies are holding her down and handcuffing her — all while she’s asking them to show her a search warrant and demanding that they leave if they don’t have one.

Watch the video here (it last six and a half minutes). Warning – this video is disturbing:

The deputies’ response?

The officers excuse was that her roommate’s family had called them because Carly hadn’t been in touch with them and they were worried. The police were there for a “welfare check” for the roommate. According to reporting by the Houston Chronicle, the deputies told them that Carly had made suicidal threats.

They stayed in Tori’s home for almost 30 minutes before they left. They told Tori they had “reason to believe” she was hiding something from them; they went into her bedroom and looked around with their flashlights.

They did not charge Tori with any crime. And now Tori has filed a complaint with the Travis County Sheriff’s Office and she’s reported to the news media that she is considering a lawsuit.

What is an Illegal Search of Your Home by Police?

You have a federal and state constitutional protections against the police coming into your home at all — unless they meet certain legal standards that allow them to invade your privacy. Specifically, both the Fourth Amendment of the U.S. Constitution and Article 1, Section 9 of the Texas Constitution do not allow law enforcement entry into the homes of citizens as a general rule. The police have to have an exception to this general rule before they can enter a home.

The Fourth Amendment of the United States Constitution 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.”

Article 1, Section 9 of the Texas Constitution states:

“Sec. 9. SEARCHES AND SEIZURES. 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.”



Legal Exceptions to Constitutional Protection of Home From Police Entry

Texans have the dual protections of both federal and state constitutions against police coming into their homes, and a police officer is not allowed to enter the place where you live unless he or she can show there was a legal exception to this rule. (Even dorm rooms are protected here; see, State v. Rodriguez, No. 11-13-00277-CR (Tex. App. Sept. 24, 2015).)

If the police enter your home, that entry is presumed under the law to be illegal and unconstitutional unless the police can show otherwise. See Kentucky v. King, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011); Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003).

These exceptions to the constitutional protections that allow police to enter your home include:

1. Valid Search Warrant

One of those exceptions is if they have a search warrant. This is a formal document signed by a judge or magistrate that describes what the police feel to be “probable cause” to enter the home and the judge’s agreement that this cause exists and therefore, the police are being allowed under the law to access the premises. The search warrant can allow access to the home, or access to a part of the home, or access to a car, etc. The warrant must be specific, it cannot allow the police to rummage through everything.

If that search warrant is not valid under the law, then it is an unconstitutional violation of the person’s rights and the search is illegal.

2. Emergency

Another exception to the constitutional protection of your home from entry by police is an emergency. If there is a reasonable concern that someone is in danger inside the home, then the police can enter without a warrant. See, Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

3. Exigent Circumstances

The law will also allow police to enter a home without a search warrant if there is a need to stop someone from destroying evidence inside the home before a warrant can be obtained from the judge. Courts will review the police entry into the home for evidence that the police officer had a reasonable belief that removal or destruction of evidence was “imminent.” SeeTurrubiate v. State, 399 S.W.3d 147, 150-51 (Tex. Crim. App. 2013)).

4. Consent

If the owner of occupant of the home consents to the police coming into the home, then the entry is legally acceptable. However, who has the authority to give that consent can be a serious legal issue (e.g., they must have “common authority” over the premises) and the scope may be a factor as well as whether or not consent was revoked after the police came through the door. See, Fernandez v. California, 134 S. Ct. 1126, 1132, 188 L. Ed. 2d 25 (2014); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).

Motion to Suppress Evidence

If the police enter your home without a proper legal exception, then they have committed an unconstitutional and illegal act. If they take anything from the home as evidence to be used against you, then another illegality has been committed (an illegal seizure).

A “motion to suppress” can then be filed to challenge the prosecutor trying to use this stuff as evidence in any criminal charges against you.


For more information on Searches and Seizures see our previous discussions on the issue here or visit Michael Lowe’s Case Results, like this one.


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