search warrants

Knock and No-Knock Search Warrants: What’s Lawful?

By Peek & Toland on February 12, 2021

If you’ve been checking in on our blogs and tuning in to In Your Defense, you know that we are breaking down search warrants and their components. The ability law enforcement has to enter and search someone’s house, phone, and car seems contradictory to the personal freedoms and our right to privacy which is protected under the Fourth Amendment.

There is no question as to how closely and carefully we should monitor search warrants and restrict police access into our personal spaces, so let’s take a look at four factors to keep in mind if the police have obtained a search warrant to access and search your domain.

Knock-knock! Who’s there?

If you’ve paid any attention to the news cycle over the last year, you know that the action of knocking and announcing law enforcement presence with a search warrant for your property can quickly turn into a life-or-death situation, especially in Texas where we proudly own weapons and have the right to defend our castle. For this reason, amongst others, the rule in Texas is that police must knock, identify themselves, and provide the landowner with a copy of the search warrant. That is the general rule, and police are bound to follow it; however, that old saying—for every rule, there is an exception—is true when it comes to the requirements for entry we’ve just discussed here.

So, what’s the exception to the rule?

Typically, no-knock warrants, warrants for which police have no obligation to knock and announce and can just barge into your home, like what happened to Breonna Taylor, are generally deemed to be unreasonable outside of some specific reason. That’s doublespeak for “yes, they can just barge into your home unannounced,” but there must be specific reason for a no-knock warrant to be issued.

One way the police can obtain a no-knock warrant is to explain to the judge or magistrate why it’s so imperative for them to enter a suspect’s home in such a potentially dangerous manner—citing concern that evidence will be lost or destroyed without surprise entry is one way law enforcement gets around that requirement to knock and announce.

Are there instances where a standard search warrant that requires knock and announce could be overridden and carried out as a no-knock warrant? Absolutely, and it can be deemed lawful when the offending officer describes what changed or that their safety was perhaps in jeopardy. This is why it’s of the utmost importance to have sage legal counsel to fight for exclusionary rule or a motion to suppress the evidence obtained from the standard search warrant that suddenly became a no-knock entry on the whims of the police serving and searching your property.

Stay in your lane.

We’ve covered in some detail the parameters for search listed in a lawful search warrant, and the importance of searches remaining restricted by those areas listed in the warrant is something we can’t stress enough. Reviewing those search areas listed in the warrant and defending your Fourth Amendment right to privacy could save you a world of trouble.

Time is on your side.

You can blast that old Rolling Stones tune, “Time is On My Side” when it comes to lawfully executed search warrants. Remember that 72-hour window we discussed? It’s still a morsel of protection that can save you in the long-run. As soon as the judge signs on that dotted line, time starts ticking. Always, always, always review the date and time the search warrant was signed to be sure the police are within the legal period of time to search.

These are just a few of the unlimited requisites that make or break a search warrant. If you have any questions about search warrants, if you’ve been served with a search warrant, or if you’ve been arrested or charged and a search warrant is at issue in your case, reach out to us immediately so we can fight to exclude any evidence unlawfully obtained.

Keep following us on social media, and continue to check in on our blogs, especially in our next discussion that will encapsulate the ways to exclude evidence against you.

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Sworn Truths that Make a Lawful Search Warrant

By Peek & Toland on February 5, 2021

If you’ve been keeping up with the news cycle and our coverage of proposed police reform, you know the topic of conducting lawful arrests is quite prevalent right now. To expound upon our recent discussion of search warrants, let’s take a closer look at warrants and, specifically, the affidavit that must accompany a warrant and the three requisite elements in it that make a valid search warrant.

What is an affidavit?

We could spend all day breaking down what an affidavit is and what all goes into it and surrounds it to make it lawful; but to make a long story tolerable, an affidavit is what police provide to a judge or magistrate in order to obtain a warrant—in this case, a search warrant. The affidavit is sworn under oath to be truthful and has three main components of significant importance, so let’s get right to it.

Spell it out for me.

A properly executed affidavit must explicitly state a crime committed, and it must be a crime on the books, meaning in the Texas Penal Code. No officer or citizen can allege a made-up crime or accuse you of anything that is not an actual crime when it comes to a valid affidavit.

Why is this evidence?

A sworn affidavit that accompanies a search warrant must include the why. Why the officers need to search your property or a specific location must be relevant to the alleged crime committed. For instance, a suspect pulled over for alleged drunk driving should have no concern about their home being searched, as the alleged crime was committed in their car and on the road. Places of irrelevance to the suspected crime have no place in a lawful affidavit. Remember those Fourth Amendment rights we’ve discussed? This is where those rights are upheld.

Connect the dots.

We’ve established that a lawful affidavit must explain why you want to search a certain property as it relates to an alleged crime, and it also must include in some specificity that the evidence is likely to be found at another location. For instance, an alleged fraud committed in a place of business would require a detailed account of why the suspect’s home would need to be searched instead of or in addition to their office where the alleged crime was committed. Not every place a suspect has been is fair game for a blanketed search warrant to cover. A lawful affidavit will practically spell out, connect the dots, if you will, why other places or items need to be included in the search warrant.

While these lawful affidavits have been broken down here in three easy steps, they are not, in fact, easy as 1-2-3. Officers and magistrates are on hand 24 hours a day in order to execute search warrants, so it’s especially important to have practiced legal counsel to work just as hard and just as much to ensure your Fourth Amendment rights aren’t violated with a shoddy, poorly executed affidavit.

Continue to tune in to In Your Defense and follow along on our social media channels as we continue to break down search warrants and everything that goes around those. If you have any questions about these issues or fear your Fourth Amendment rights were placed in jeopardy by an unlawful search warrant, please reach out to us at Peek & Toland, so we may help protect your rights and guide you through the criminal defense process.

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What is Curtilage and Why Does It Matter?

By Peek & Toland on November 25, 2019

Curtilage refers to the area around your home, including yards, patios, and porches. Generally, the curtilage is an extension of your home, which makes it off limits to police officers wishing to search in these areas. Since you have a reasonable expectation of privacy in these areas, officers may not conduct a search in them without first getting a search warrant signed by a judge.

However, there are exceptions to this general rule. If officers are legally present in those areas, they are free to observe illegal activities and act accordingly. For instance, if police are responding to a 911 call, they are present on official police business and can take reasonable steps to locate the property owner or the person who called 911 for assistance.

Police also legally can look at what is in plain view in your backyard, such as if it is surrounded by a chain link fence or no fence at all. Likewise, if there is a pathway leading to an open gate to the back yard, then police may be able to follow the open pathway if no one answers the front door of the home.

Furthermore, the airspace above your home and curtilage is generally open to the public. As a result, police theoretically could use a drone to view your backyard without intruding on your rights to a reasonable expectation of privacy.

What is Curtilage and Why Does It Matter?

If you install a tall wood privacy fence surrounding your backyard, then you are creating a reasonable expectation of privacy that officers cannot breach without a search warrant. In other words, the police would not be free to enter through a closed gate to enter the backyard.

You also have the right to tell police to leave your home or curtilage if they do not have a warrant. Certainly, they can return to your home or yard with a valid search warrant, but there is no reason that you should allow them to skirt the rules and violate your constitutional rights.

If you or a family member is facing any criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

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Supreme Court Considers Warrant for Phone Location Data in Crimes

By Peek & Toland on June 1, 2018

In the modern area of communications, your smartphone knows your location at all times. The question of whether the police should be able to was recently discussed by the U.S. Supreme Court in a case that considered phone location data.

Law enforcement investigators can trace your every movement by getting your location records from your wireless provider.

The question of whether they need a warrant to do so was discussed in the U.S. Supreme Court case of Carpenter v. USA in late 2017.

The federal government wants to retain the current reading of the law. This allows investigators to request location records from the cell towers of wireless providers without a warrant. Opponents of this stance claim it’s violation of Fourth Amendment protections against officers making unreasonable searches.

Supreme court looks at warrantless phone location data

Supreme Court considers phone location data use

During a recent hearing in November, the justices appeared to favor the creation of a new standard for obtaining location information, reported CNET.

However, there was a lack of consensus about what that standard should look like. Associate Justice Stephen Breyer said:

“This is an open box. We know not where we go.”

The rapid growth of location data has changed the climate since the rules about government access to location data were first set up.

At present, investigators use a set of rules known as “third party doctrine.”

They consider your location information to be something you give over routinely to your wireless carrier. Police do not consider they need a warrant to look at it.

Although they require a court order, the bar is less high than that needed for a search warrant.

Opponents of the federal approach such as the American Civil Liberties Union say it’s too broad now because phone location data now provides a more precise picture of your movements.

The ACLU approach is backed by tech giants including Google, Apple, Facebook and Verizon.

The companies are concerned a standard derived from the Stored Communications Act of 1986 is out of date.

The Supreme Court hearing follows a case in 2011. Police officers arrested four men over a series of armed robberies.

One of them gave the FBI his cell phone number as well as the numbers of his alleged accomplices. The FBI then used the information to apply for three orders from magistrate judges to obtain “transactional records” for the suspects.

Timothy Carpenter was charged with offenses including aiding and abetting robbery that affected interstate commerce on the basis of locational evidence from cellphone towers.

Federal offenses carry stiff penalties in Texas and elsewhere. Find out more on our federal criminal defense lawyers’ website or call (512) 474-4445.


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