Search and seizure is a complicated topic in criminal law. Search and seizure often comes into play when a police officer is performing the search and seizure of the person, the home, or an automobile. There are certain rules that an officer and the government must follow when conducting a search and seizure. If these rules are not followed, this can impact a criminal defendant’s case in a good way. When analyzing if a search and seizure is valid, every detail matters. While we have tried to summarize some of the most common questions about search and seizure, every case is fact-specific and different; one page cannot fully explain all that must be known about search and seizure law.
Do I have to let a police officer in if they want to search my home in Arlington, Texas?
Police are not allowed to enter your home unless they have a search or arrest warrant. Police require only an arrest warrant to enter the home of the person named on the arrest warrant. An arrest warrant and a search warrant is required if you are at persons home other than your own. Without a warrant the only way law enforcement may enter is with your consent or if a warrant exception applies. They will not likely be asking you for permission if a warrant exception applies since the exceptions only apply to exigent circumstances. If they are asking you for permission to enter your home you may respectfully decline at which time they will be forced to obtain a warrant.
What kind of proof or evidence does a cop need to arrest or search me? Is it different in Dallas County or Tarrant County?
Arrest: A cop may arrest you if he has probable cause to believe that an individual has committed any criminal offense in his presence, regardless of the seriousness of the offense or the punishment. Probable cause is determined by whether the facts and circumstances would justify a reasonable officer to believe that there is a fair probability of criminal activity. Fair probability is more than bare suspicion but less than evidence which would result in a conviction.
Search: A cop must have reasonable suspicion in order to stop you. Reasonable suspicion is a reasonable belief that criminal activity is in progress. Determining whether there is reasonable suspicion requires that we ask ourselves whether the facts and circumstances would justify a reasonable officer to believe that there is criminal activity in progress. The officer may stop you only for the duration required to determine if his reasonable suspicion was accurate or not. If it was accurate he may arrest you since that will provide him with the probable cause that is required to make a lawful arrest but if it was inaccurate you are free to go. Once a cop has stopped you he may only search you if he has reasonable suspicion that you are armed and dangerous. This search is limited to a pat down search of the outside of your clothing only for weapons. Although the police officer is only searching for weapons which may be a threat to him or others,he may seize drugs and contraband if he feels them as long as it was immediately apparent what the items were underneath the clothing. It must be immediately apparent to the police officer without manipulation that the item in your pocket is drugs or contraband.
Search Incident To Arrest: A police officer may also search you after you have been arrested for any offense so long as it is a lawful arrest. A lawful arrest requires that the officer have probable cause or an arrest warrant. The officer must perform the search contemporaneously with the arrest. It doesn’t matter if the police are in Arlington, Mansfield, Dallas, Fort Worth, Keller, Southlake, Grapevine, Irving, Las Colinas or Lewisville. These rules apply to all of Texas and all police officers, regardless of where the police officer is located or where you live; these rules must be followed.
Please contact the Arlington-based criminal defense attorney at Our Law Firm to discuss what options are available for you or the accused person.