Search of a Residence in Texas: When Police Search Your Home
Posted on by Michael Lowe.
When the police search your dwelling, they have specific limitations on where they can search and what they can take.
Police officers (or federal law enforcement agents) show up at your front door, demanding to be allowed inside your home because they have a search warrant allowing them to do so, whether you like it or not.
So they enter your place, then what? The officers must still act within certain boundaries while doing their search, even if they do have a warrant. They cannot roam around doing whatever they want, wherever they like, in your house.
Constitutional Right to Privacy Controls all Searches of a Home
We’ve discussed aspects of your constitutional right to privacy, especially within your residence, and the limitations on when the government can invade your privacy to snoop for evidence or to try and arrest someone.
Specifically, the Fourth Amendment of the United States Constitution and the Bill of Rights of the Texas Constitution establish your right to privacy against police powers. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. For more, read:
- Exigent Circumstances: What They Are and How They Allow Police to Search and Seize Without a Warrant; and
- Illegal Search Warrants: Challenging the Underlying Affidavit.
The police do have a right to search and to seize. However, their ability to do so is carefully defined under both state and federal law. Not only does constitutional precedent detail how and when searches and seizures can happen, but there are also procedural rules that control the government’s steps here.
Constitutional Protections of Privacy in the Home
There is no place with higher legal protections against police search and seizure than someone’s home. As the Supreme Court of the United States (SCOTUS) explains: “…when it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). See also, State v. Rendon, 477 S.W.3d 805 (Tex. Crim. App. 2015).
SCOTUS considers “… the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion” to be at the “very core” of our Fourth Amendment privacy protections. Silverman v. United States, 365 U. S. 505, 511 (1961)).
How far do the constitutional protections go insofar as your home?
These constitutional privacy protections include the “curtilage” of the home, which is the area “immediately surrounding and associated with the home… part of the home itself for Fourth Amendment purposes.” Jardines, 569 U. S., at 6 (quoting Oliver v. United States,466 U. S. 170, 180 (1984)).
SCOTUS explains that it is necessary to protect against police searches of the home’s curtilage because this is an area “intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212-213 (1986).
The curtilage of a home has significant importance for home searches. Police officers have to respect more than just the interior of the residence; a home search is more than simply walking through the front door.
In a recent SCOTUS decision, the High Court held that even the automobile exception to a search warrant does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. Collins v. Virginia, 138 S. Ct. 1663, 584 U.S., 201 L. Ed. 2d 9 (2018).
In Collins, a motorcycle was covered by a tarp, and parked “… inside a partially enclosed top portion of the driveway that abuts the house.” The Supreme Court ruled that this area was part of the home’s curtilage. It explained that the motorcycle was in “an area adjacent to the home and `to which the activity of home life extends” … [j]ust like the front porch, side garden, or area “outside the front window.”
When the police officer searched the motorcycle, it was an illegal search as an “unjustified invasion of the curtilage.” For more on the Collins decision, read “The Police Power to Search Your Car: SCOTUS May Change Things in Byrd and Collins.”
Home Searches and Federal Rule of Criminal Procedure 41(e), (f)
Home searches are also protected by specific police procedural requirements. If the government does not follow all the provisions of the Federal Rule of Criminal Procedure governing searches and seizures during the search of your home, the defense can move to suppress the evidence obtained during the search and get it excluded from the case.
Protecting the Home Search: The Warrant’s Details
Among the protections given in Fed. R. Crim. P. 41(e) are:
- The search warrant must be issued to the police officer authorized to execute the search by either a magistrate judge or a judge of a state court of record.
- The search warrant (except for a tracking-device warrant) must identify:
- the property to be searched,
- any property to be seized, and
- designate the magistrate judge to whom it must be returned.
- The warrant must command the police officer to:
- execute the search warrant within a specified time which cannot be longer than 14 days;
- execute the search warrant during the daytime (unless the judge, for good cause, expressly authorizes execution at another time); and
- return the warrant to the magistrate judge designated in the warrant.
Protecting the Home Search: The Inventory of Seized Property
Additional protections are provided by Fed. R. Crim. P. 41(f):
- The police officer executing the search warrant must enter on the warrant both (1) the exact date and (2) the exact time it was executed.
- The police officer who was present during the execution of the warrant must prepare and verify an inventory of any property seized from the home.
- The inventory must be done in the presence of (1) another police officer and (2) the person from whose premises, the seized property was taken. If neither is available, the police officer cannot do the inventory all by himself. He must prepare and verify the inventory with at least one other credible person.
- If computers are involved, i.e., electronic storage media or electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.
- The officer executing the search warrant must give a copy of the warrant and a receipt for the property taken to the person from whose premises the property was taken. If they were not there when the search took place, then the officer must leave a copy of the search warrant at the home, along with a receipt at the place where the officer took the property.
- After the home is searched, the officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate judge designated on the warrant. This can be done by reliable electronic means.
- If asked, the judge must give a copy of the inventory to the person from whose premises the property was taken.
Where Can They Snoop in Your Home?
Both the federal and state constitutional protections as well as criminal procedural rules mandate that the search warrant for your home have a specific description of where they are going to search, and what property they will seize if they find it.
As a general rule, this description needs to be specific enough so an officer with no knowledge of the home, its owner, or the investigation, can read it and understand both (1) where to search and (2) what to seize.
The search must be limited to the area described in the warrant. For example, the police officer may be allowed to search the premises of the home, but not the recreational vehicle parked out back.
Additionally, the search cannot be an excuse to poke around in every nook and cranny of the home. The search warrant will have a description of what things the officers are allowed to seize if found. This means that the police officer cannot open a locked keepsake box when the items contained in the search warrant’s description are clearly too big to be held in it.
What Can They Take (Seize) in a Home Search?
The property that can be searched for and seized in a search of your home by the police will depend upon the language of the particular search warrant. The warrant not only allows the officer to enter your home without your permission, thereby invading your privacy, but it also allows him (or her) to look for property that is described in that warrant. If the police officer finds that warrant-described item, then he can seize it for use by the prosecution as evidence against you.
However, the police officer is only allowed to search for the things listed in the search warrant. He or she may enter to search only in those areas of the home described in the warrant.
If the search warrant specifies that the police can look in the kitchen and bathrooms of the home for drugs or drug paraphernalia, then the officer has no right to roam into your garage, family room, or master bedroom.
Additionally, common sense controls the search allowed by the warrant. If the officer is looking for guns, then he must search only where it is reasonable to think a gun might be found. A rifle’s size prevents it from being hidden in a shoebox, for instance. If the police officer opens a closet to look for the rifle, then he may see that shoebox but he has no right to open it and look inside.
Moreover, specific things within the home may have their own privacy protections. For instance, a locked footlocker has been held to need a search warrant before it can be unlocked and searched. Explains SCOTUS:
“Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects.”
— United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977).
There are certain exceptions here, of course. If there is evidence within plain view in the home when the search is being conducted, for instance, then it can be seized. Other exceptions include exigent circumstances, such as:
- Someone Is In Imminent Danger of Being Hurt or Killed;
- Evidence Is In Imminent Danger of Being Destroyed; and
- Stopping a Fleeing Suspect.
What if the Search of Your Home Was Illegal?
If the search of your home did not meet the prerequisite legal standards, then it was an illegal search. Your defense lawyer can file a motion to have all the evidence resulting from that search kicked out of the prosecution’s case (excluded).
For more on excluding evidence, read our discussion, “What is a Motion to Suppress?”
Another motion will need to be filed to get the property back. This is called a Motion to Return Property filed pursuant to Fed. R. Crim. P. 41(g).
Here, the defense files a motion with the court to have the property returned to its owner. The judge will hear evidence from both the defense lawyer and the prosecution regarding any factual issue necessary to decide the motion.
Once the motion to return property taken from a home in an illegal search is granted, the judge has to return the property to the movant. However, he or she may legally impose reasonable conditions to protect access to the property and its use in later proceedings instituted by the prosecution.
Defense Challenges to Home Search and Seizure
In many situations, the more important aspects of the government’s case will depend upon the things that the police found and seized in a home search. From a defense perspective, every step taken by the police, from seeking the judge’s approval of the warrant to the inventory of the property that was taken, must be vigorously analyzed both legally and factually.
From a legal standpoint, an aggressive defense must look back to the Founding Fathers and their intent when drafting the federal constitution. This is based upon precedent. Expectations of privacy must be considered with an awareness “… of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.” Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543.
Factually, the defense must understand the particulars of the situation and those involved. Is this police department notorious for disregarding search parameters? Is forfeiture involved here?
For more on forfeiture, read:
- Latest Forfeiture Ruling By SCOTUS: What Does It Mean For Texas Criminal Defense?
- Forfeiture Victory For Police: They Can Seize And Keep Assets Even In An Illegal Search Says Texas Supreme Court
- Are Police Just Taking Property For Their Own Profit and Use? You Betcha.
Anyone who has had their home searched by the police should make sure that there has not been a constitutional violation of their rights to privacy. This is especially true if they suspect they are under criminal investigation, or have been arrested or face imminent arrest.
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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