fbpx

search warrant

How to Exclude Evidence if Search Warrant is Unlawful?

By Peek & Toland on February 26, 2021

We’ve covered in great detail the many aspects that go into law enforcement obtaining and executing search warrants and what exactly unlawful searches are. While you may be able to remember and recite all of those important questions regarding lawfulness when being served with a search warrant, you should also remember that unlawful searches are often carried, and evidence against you could be found as a result.

So, what happens if you’re on the receiving end of an unlawful search? What comes of the evidence found through that search? How do you get that evidence thrown out? In addition to having sage legal counsel, there are a couple of aspects to consider when it comes to illegally obtained evidence against you.

 Lack of Probable Cause and an Abundance of Lies

Remember those affidavits we covered? In addition to the alleged crime spelled out in the affidavit, there needs to be probable cause, or a reasonable basis for believing that a crime may have been committed. A search warrant without that and any evidence collected as a result completely violate your Fourth Amendment right, as does an all-out lie from a police officer. We’re not talking about a mistake, but an actual lie that law enforcement used to collect evidence from you in an alleged crime. It happens, and the onus is on you and a competent attorney to make that lie known.

Does protesting this lack of probable cause or law enforcement lies when the unlawful search is conducted mean the search will end and any evidence will be placed back where it was found? No.

These unlawful searches with no probable cause or misinformation are unfortunately carried out often. It’s best practice to reach out to your experienced criminal defense attorney who will begin the process of excluding that illegally obtained evidence against you.

Fruit of the Poisonous Tree

We’ve established that unlawful searches of people and property happen all of the time, which now begs the question of how to remedy the situation and keep that information or illegally obtained evidence out. Thanks to our Fourth Amendment right and Texas’ Exclusionary Rule, an experienced criminal defense attorney cannot only get the search warrant deemed unlawful, but the illegally obtained evidence will be inadmissible. As well, the evidence that the government obtained in violation of your constitutional rights.

There are, of course, exceptions to rules and much to cover with warrants and evidence collection that all play a factor in the success of any criminal case. 

If you have any questions about search warrants or any criminal matters, we encourage you to reach out to one of our experienced criminal defense attorneys at Peek & Toland.

Continue to follow us on social media, where we cover the aspects of criminal defense that are key to preserving your freedom and the criminal justice system’s integrity.

Posted in Criminal Defense

Tagged with:

Valid Search Warrants Dissected

By Peek & Toland on January 29, 2021

We’ve talked in detail about several of our Constitutional amendments, specifically our Fourth Amendment and its protection of our right to feel safe and secure in our own home. But, if you’ve paid any attention to the recent news cycles, you know that no-knock search warrants are a controversial tactic used by police in limited scope and circumstance that absolutely interrupt our sense of security in our home. Though perceived to be a method of search rarely used, statistics show that 60,000-70,000 no-knock warrants are issued each year, and the recent death of Breonna Taylor as the result of a no-knock warrant has really brought this issue into the public arena and proposed legal reform.

This staggering statistic and tragic situation lead us to a broad and continuing discussion about warrants, how to hire a lawyer to contest the validity of an unlawfully obtained or executed search warrant, and your fourth amendment rights under search warrants, which will eventually bring us to what the no-knock search warrant is, how it works, and why it’s so controversial.

Before we dive into no-knock warrants, let’s cover the criteria needed in order to lawfully obtain and execute a search warrant in Texas and review what that ever-important Fourth Amendment guarantees us. To break down the criteria in manner you can easily recall, we can ask: Who? What? When? Where? Why?

Who?

Texas, our Texas! All hail the mighty state! First and foremost, a valid search warrant in Texas must be issued by a state magistrate in the State of Texas. Not Oklahoma. Not New Mexico. Not Louisiana. Not any other state, no matter how much they wish they were Texas. Texas is who has to issue a valid search warrant in this state.

What?

A proper and valid search warrant in the State of Texas must include what it is the police are trying to find. Coming in and ransacking everything in sight didn’t work for King George and his broadly worded search warrants in the 1700s, and it certainly doesn’t fly here today.

When?

We always hear that time is of the essence, and that universal phrase for prompt action is never more important than it is in regard to properly executing a search warrant. Any valid search warrant in Texas should clearly state the date and hour at which the warrant was obtained. Why is that important? The time and date a warrant was obtained is crucial because time is ticking—there’s generally a 72-hour or three-day window to conduct the search defined in a warrant. There are exceptions, though. A 15-day span is given for DNA evidence collection, and technological forensic officers have 10 days to recover data from electronic devices listed in the warrant. As a general rule, the three-day rule applies to restrict stagnant search warrants, and knowing when that warrant was signed is crucial for your defense and to ensure your Fourth Amendment rights weren’t violated.

Where?


A valid search warrant will define exactly where the police are allowed to search—that means it must state, with some specificity, the address or a reasonable description of the property permissible to search if the exact address isn’t known. A proper warrant should say with specificity exactly where it is police officers are allowed to go, and it must narrowly define that area.

Why?


We already covered that the search warrant must include the signature and name of the magistrate who issued the warrant. In addition to that information showing proof the warrant was issued by Texas, the magistrate’s name gives you the information you’ll need to request why you’re being searched. You can specifically request to know what it is the officers swore to on an affidavit that lead to a search warrant being issued.

In a neatly wrapped and memorable nutshell, you know what questions to ask and for what you should look in the event that you ever receive a supposedly valid search warrant in Texas

Of course, there is a lot more to digest in ensuring your Fourth Amendment rights are upheld, and we’ll have a deeper discussion that you don’t want to miss when we break down no-knock warrants. Continue to follow us on social media to keep up with this broadening and important conversation on warrants and why it’s imperative to have trusted counsel in the event of any issues with arrests or questionable search warrants. If you’re in that position now or fear your Fourth Amendment rights might have been violated, please reach out to us here at Peek & Toland.

Posted in Criminal Defense

Tagged with:

When Do Exigent Circumstances Allow Police to Enter Your Home Without a Warrant?

By Peek & Toland on May 21, 2019

The Fourth Amendment to the U.S. Constitution guarantees you the right to be free from reasonable search and seizure. This generally means that law enforcement authorities must have a valid search warrant to enter and search your private residence. As a result, when police illegally search your home without a warrant, a court could rule in any criminal proceedings that since the search was illegal, the evidence was likewise illegally obtained and thus not admissible in court. However, there are various exceptions to this general requirement of a search warrant, one of which is “exigent circumstances.”

Tex. Code of Crim. Procedure Article 14.50 provides that while law enforcement officers normally may not enter a residence without a warrant, they may do so under exigent circumstances. Whether a situation rises to the level of exigent circumstances depends on the specific facts of each case.

One situation in which exigent circumstances might be present is if the law enforcement officer reasonably believes that entry without a warrant is necessary to assist others. For instance, when law enforcement officers are present outside a residence and hear a woman screaming for help, they may have exigent circumstances to enter the residence and prevent the woman from whatever harm may be occurring.

Another example of exigent circumstances may be when entry by police officers into the residence is necessary to protect themselves from a person whom they reasonably believe to be present, armed and dangerous. In other words, if someone from inside the residence is actively shooting through the windows at police officers, they may have grounds to enter the residence due to exigent circumstances.

When Do Exigent Circumstances Allow Police to Enter Your Home Without a Warrant?

Yet another instance that might constitute exigent circumstances occurs when law enforcement officers fear that failing to enter the residence could result in the destruction of evidence or contraband. If police officers are outside a home awaiting a search warrant and a fire begins burning in a back room in the house, the police might reasonably conclude that the suspect is attempting to dispose of evidence or contraband. In instance, exigent circumstances may be present.

The Peek & Toland criminal defense lawyers are here to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your criminal proceedings.

Posted in Criminal Defense

Tagged with: ,

How Can We Help You?

Our team is standing by to help. Call us at (512) 474-4445 or complete this form to send a message about your legal situation.