Warrant Searches Or, I Got 99 Problems But My Search Ain’t One Katie Leininger Assistant City Attorney

Search Warrants: Please Don’t Be This Guy

What is a search warrant? U.S. Constitution – The Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

What is a search warrant? Texas Constitution – Art. 1, Sec. 9: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”

What is a search warrant? Texas Code of Criminal Procedure Art. 18.01: “A written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate…” (CCP 18.01(a)) “No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested.” (CCP 18.01(b))

What is a search warrant? Texas Code of Criminal Procedure Art. 18.05: “[A] search warrant may be issued to a fire marshal, health officer, or code enforcement official of the state or of any county, city, or other political subdivision for the purpose of allowing the inspection of any specified premises to determine the presence of a fire or health hazard or unsafe building condition or a violation of any fire, health, or building regulation, statute, or ordinance.” (CCP 18.05(a)) Need “presentation of evidence of probable cause to believe that a fire or health hazard or violation or unsafe building condition is present in the premises sought to be inspected.” (CCP 18.05(b))

So…do you need a warrant?

Who may issue a warrant? CCP 18.01(c), (d), (i), (j) Municipal court judge/county court judge who is an attorney licensed by Texas Statutory county court judge District court judge Judge of the Court of Criminal Appeals Justice of Supreme Court of Texas Magistrate with jurisdiction over criminal cases serving a district court

How do you build a valid warrant? Sworn affidavit Search warrant Warrant return and inventory

Your sworn affidavit should include: Your statutory authority to search (police officer, code officer, fire marshal, etc.) Your affirmation that the document’s contents are true and correct Factual basis for why you are asking to search Your signature (signed in front of the magistrate) Date and time it was signed

CCP 18.01(c) Sworn Affidavit: Substantial Facts Specific offense has been committed Specific description of property or items to be searched or seized That property/items are located at/on specific person, place, or thing to be searched Why are you searching? What/who are you searching and what are you looking for? Where are you searching?

Sworn Affidavit – Probable Cause CCP 18.05(c) – for administrative search warrant, magistrate is not limited to evidence of specific knowledge, but may consider: Age, general condition of premises Previous violations or hazards present Type of premises Purposes for which premises used Presence of hazards or violations in and the general condition of premises near the premises sought to be inspected

Search warrant (CCP 18.04) Must run in the name of “The State of Texas” Identify what is to be seized and name or describe person, place, or thing to be searched, “as near as may be” Command any peace officer of the proper county (or others authorized in CCP 18.05) to search forthwith the person/place/thing Dated and signed by magistrate Magistrate’s name must appear in clearly legible handwriting or in typewritten form with magistrate’s signature

Search warrant Date and hour of issuance (CCP 18.07(b)) Your search warrant should affirm: Person signing affidavit has statutory authority to search Probable cause established

Warrant Return and Inventory CCP 18.10 Return not later than 3 days after executing search warrant Include: Manner in which warrant was executed (who searched and where/when search occurred) Written inventory of what, if anything, affiant seized during search Signed by affiant

Avoiding problems

Camara v. Municipal Court, 387 U.S. 523 (1967) San Francisco, CA Administrative searches by city H&S inspectors constitute significant intrusions upon interests protected by 4th Am; such searches, when authorized and conducted w/o warrant procedure, lack traditional safeguards which 4th Am guarantees to individuals “[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”

Michigan v. Tyler, 436 U.S. 499 (1978) Entry to fight a fire requires no warrant; once in the building, officials may remain there for reasonable time to investigate cause of the blaze Thereafter, additional inquiries to investigate cause of fire must be made pursuant to warrant procedures governing administrative searches “[Once] the blaze [has been] extinguished and the firefighters have left the premises, a warrant is required to reenter and search the premises, unless there is consent or the premises have been abandoned.”

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) Pocatello, ID Lower court held Fourth Amendment required warrant for type of OSHA search involved and that statutory authorization for warrantless inspections was unconstitutional; SCOTUS held warrantless searches in these circumstances unconstitutional Did not overrule right to warrantless searches in all circumstances, depends on specific enforcement needs and privacy guarantees of each statute “[P]robable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation, but also…that “reasonable legislative or administrative standards for conducting an…inspection are satisfied”” (quoting Camara)

Haley v. State, 811 S.W.2d 600 (Tex. Crim. App. 1991) DPS trooper accompanied health investigator serving 18.05 warrant Both observed expired, improperly repackaged drugs in plain view; trooper seized; conviction upheld Warrant search, trooper presence, and seizure all permissible

Cardoso v. State, 438 S.W.3d 815 (Tex. App.--San Antonio 2014) Search warrant issued pursuant to 18.05; defendant convicted of animal cruelty charges based on plain view observations while running admin search warrant Lack of specific dates/times listed in warrant ok, complaint history indicated course of conduct

Thank you! Katie Leininger Assistant City Attorney kleininger@pearlandtx.gov 281-652-1667