When Police Enter Your Home (Or the FBI and ICE) Here in Texas
The Fourth Amendment protects you in the privacy of your home. In the United States, police cannot enter your home whenever they choose to do so (unlike some other countries). Here, your privacy is constitutionally protected and private citizens can reside safely in their homes without concern for the government busting through the front door.
Well, unless they do. There are several legal ways where the police or law enforcement agents can come into your home when they decide it’s a good idea. (And they’ll enter even if a court rules later down the line that they were wrong to enter and their entry violated your rights.)
Warrants: General Rule
The first big exception is if they have a warrant. Warrants are official orders issued and signed by a judge. This can be a federal judge or a judge who presides over a bench in the State of Texas. Either way, your protection here comes from the judge having to have heard evidence that law enforcement provides to him or her.
This evidence has to support their assertion of “probable cause” for invading your home and your privacy. Maybe they argue that they have reason to believe that you have illegal drugs in the place. Maybe they tell the judge they think the home is being used for criminal activity.
If they judge agrees with them, then he signs the order allowing them to proceed. This is called a “warrant.” There are different types of warrants.
Three Kinds of Warrants Allowing Access to Your Home
There are three different kinds of “warrants” that allow law enforcement agents to enter your home and invade your privacy. These warrants allow local police officers and sheriff’s deputies to walk through the door as well as federal agents and state troopers. They are:
1. Search Warrant
A search warrant gives the government the right to enter the dwelling or premises identified in the warrant. It gives the agents or officers the right to look for things. They cannot look for anything other than what is specified in the search warrant.
For more on Search Warrants, read:
- Do Police Need Search Warrants to Access Digital Information? The Importance of Carpenter v. United States
- The Power of the Police to Search Your Home and Property: 2 New High Court Opinions On When Police Can Search Without a Warrant in Texas
2. Arrest Warrant
An arrest warrant is issued to allow an officer or agent to track down an individual and arrest them on criminal charges. The arrest warrant gives permission for law enforcement to enter the dwelling or premises identified in the warrant if they have a reasonable belief that the individual is located there.
For more on Arrest Warrants, read:
- Six AM No Knock Warrant Gets Burleson County Deputy Killed as Homeowner Arrested for Capital Murder: Is There an 1983 Suit Here?
- Police Officer Arrest of Utah Nurse Alex Wubbels: Lessons for All of Us
3. ICE Warrant (Removal or Deportation)
These are federal warrants issued either by a judge. Some refer to warrants being issued by the Immigration and Customs Enforcement (ICE), but officially the federal agency does not issue “warrants” but something called a “detainer.”
Detainers are controversial for many reasons, not the least of which is that the protections given by the Fourth Amendment to warrant requirements are not always respected in ICE actions.
In these scenarios, either a federal warrant or a detainer issued by an ICE officer is issued for the arrest or detention of an individual who is allegedly an alien in this country illegally and therefore subject to removal or deportation under federal law.
For more on ICE matters, read:
Legal Exceptions Allowing Access without a Warrant in Your Home
Over time, several doctrines or legal exceptions have been established that allow the police to come into your home without bothering to get a warrant. These include consent; plain view doctrine; and exigent circumstances.
We’ve discussed them in an earlier post; for details, read “Police Coming Into Texas Homes Without A Search Warrant.”
One thing that we haven’t discussed before is the fact that how your home is constructed may define how much privacy you have inside your home under constitutional protections.
It May Depend On the Home Itself
Courts have considered case after case where people have challenged the police coming into their homes and invading their privacy. Brave defendants have taken their arguments all the way to the Supreme Court of the United States on evidence arguments and appeals of orders denying motions to suppress.
One result of all these court decisions is that courts view some kinds of homes differently than others when it comes to Fourth Amendment privacy protections.
1. Houses, Condos, Townhouses, Apartments
Legally, the full constitutional protections of individual privacy and the necessity of a valid warrant apply to premises that are permanent structures. Single family dwellings in a subdivision; duplexes; townhouses; condominiums; and apartments are all built for permanency. It doesn’t matter if you rent them or own them or have a mortgage.
The key here is that your home sets on a foundation and isn’t going anywhere. Compare this to an automobile that can be moved quickly and for a great distance. There is an “automobile exception” to the Fourth Amendment privacy protections because of the public interest in making sure that evidence isn’t moved before the police can seize it.
Thing is, times are changing.
2. Motor Homes and Recreational Vehicles (RVs)
More and more, people are choosing to live in recreational vehicles or motor homes. Their chosen home may remind some of Dale’s 1977 Winnebago Chieftain in the Walking Dead; Walter’s 1986 Fleetwood Bounder in Breaking Bad; or Cousin Eddie’s family home in National Lampoon’s Christmas Vacation, but the reality today is that living in clean and swanky RVs is a growing trend, particularly among millennials. See, e.g., “More and more millennials are ditching conventional housing and living in RVs,” written by Marianna Kheyfeys and published by Circa on September 20, 2017.
While lots and lots of people are living in motor homes and recreational vehicles as their full-time homes, the law isn’t recognizing these homes the same way as if these people lived in an efficiency apartment. Under the law, these homes can treated just like automobiles and other vehicles.
Vehicles can be searched without a warrant by the police because under the law, things on wheels that can be moved are deemed to have less of a “reasonable expectation of privacy.” California v. Carney, 471 U.S. 386, 105 S.Ct. 20166, 85 L.Ed. 2d 406 (1985).
Exceptions can apply. As the Carney court pointed out in a footnote, there may be motor homes that get full “house” treatment for purposes of privacy and warrants if it is “… situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road.” Carney, 471 US at 394, fn 3.
Over time, federal and state courts in Texas have come to view these homes-on-wheels as having full warrant protections on a case-by-case basis. They look at the motor home or RV and consider whether or not a reasonable person who checked it out would think it was a vehicle or a residence. The harder it is to move the RV, the closer it is to getting full warrant protections. The easier it is to drive it to another location, the more it looks like a car and gets subjected to the automobile exception.
3. Tiny Houses
As you know if you watch HGTV, tiny houses are very popular these days. There are “tiny house communities” popping up like the one in Spur, Texas. There’s an effort to build an official tiny house community here in Dallas, but right now tiny home owners can be found parked in parents’ back yards or a friend’s driveway.
The law will evolve to include tiny houses in case precedent dealing with Fourth Amendment protections and police access to these homes. Right now, anyone in a tiny house may want to assume that law enforcement is going to find the automobile exception applies and that these little houses built on trailers and therefore on wheels are not residences with full constitutional protections against police entry. See, “Go Tiny or Go Home: How Living Tiny May Inadvertently Reduce Privacy Rights in the Home.”
Concerned About Police Entering Your Home?
Here in Texas, police or other law enforcement agents may well enter your home illegally. They may demand access and they may take your property. They may arrest you or a loved one after they’ve entered your home. Police do things all the time that upon review by judges (and sometimes prosecutors) is confirmed as being wrong and in violation of laws and constitutional rights.
Sometimes, these challenges to wrongful police action mean filing motions to suppress and then appealing that ruling in order to get justice.
Bottom line, the police can and may enter your home without a warrant here in Texas. It’s important that you understand the laws that exist to protect you and the importance of a zealous criminal defense in the event that you are arrested or charged, or your property is taken.
Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.