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Texas Criminal Procedure
South Texas College of Law Houston
Peters, Amanda J.

Texas Criminal Procedure
Peters- Spring 2016
Motion to suppress because [……………………..] Search Warrant Affidavit
Provides the factual basis for probable cause needed to authorize a search warrant.
THRESHOLD: The affidavit must be based on the testimony of a credible source and include:
Statement a particular crime has been committed.
The property described constitutes evidence the crime was committed.
The property the officers want to seize is located on the person, in the place or is the thing described.
Must have probable cause!!
Credibility of Source
CI- requires corroboration of the information CI is providing / independent investigation to insure the CI is providing accurate information
Search Warrant must include:
Language the warrant is issued in “The State of Texas”
Clear Description of the thing to be seized and location, person, or thing to be searched
Command to any police officer within jx to search the location, person, or thing and
Magistrates signature and date
2nd element has a particularity requirement.
General descriptions do not suffice. Only SPECIFICALLY described property or items may be seized. Officers MUST provide adequate details about the location of the search. SPECIFIC. If not specific enough, defense should file a motion to suppress.
For a search warrant to be legally valid it must have probable cause. Just because you have an affidavit it doesn’t make the search warrant valid. You have to have corroboration and probable cause. 
Search Warrants and Affidavits serve different purposes / have different requirements:
Affidavit is for the benefit of the magistrate
Search warrant is the legal doc that authorizes police to search and seize evidence.
Affidavit MUST establish a nexus between the item to be seized, the D, and the location
Affidavit description of PLACE to be searched controls over the warrant.
**Evidentiary Warrant:
 Warrants for mere evidence. More stringent requirements. ??????
Typographical Errors- Technical discrepancies do not invalidate
Warrantless Search
* Warrantless searches are per se unreasonable unless the search is conducted pursuant to a recognized exception to the warrant requirement.
*All searches, even warrantless searches, must be supported by probable cause.
Standards for warrantless searches: Probable cause to search or arrest exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence pertaining to a crime will be found. The circumstances must also be such that the procuring of a warrant is impracticable.
Exceptions to the general requirement that officers obtain a search warrant:
Consenting to a search warrant waives your right to have a search warrant issue upon probable cause.
Refusing to consent to an officer to search your car does not give him probable cause.
Consent must be freely and voluntarily given to be considered effectiveà Burden of proof is upon the State.
Consent does not need to be given verballyà hand gestures can amount to consent.
A child cannot consent to search residence.
Consent is limited to the scope of consent givenà search front porchà only can search front porch.
Factors the court looks at when determining objectively whether the defendant consented to the search freely:
Whether, and to what extent, officers exhibited a show of force, including a display of weapons;
Whether the actions of the officers could be classified as flagrant misconduct;
Whether the police threatened to obtain a search warrant if the detainee did not acquiesce, or whether the police claimed a right to search;
Whether police first gave appellant his Miranda warning;
Whether the arrest was made in order to obtain consent;
Whether appellant knew that he could refuse to allow a search;
Whether consent was offered by appellant or was in response to a police request;
Appellant’s education, intelligence, and physical condition.
When officers place someone under arrest, so long as the arrest is supported by probable cause and is otherwise lawful, officers have the right to search the person and the immediate area where the person was located just before the arrest.
Limited purposeà Officer’s safety
In the course of investigating the officer is entitled for the protection of himself and other in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him if he:
Identifies himself as a police officer;
Makes reasonable inquiries; and
Where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety
Inventory searches are an administrative type of search that occurs when:
Car is impounded
A person is booed in jail
à to protect the person’s property from theft and the entity storing the items from claims of theft.
Lawful impoundments:
Interest of public safetyà vehicle accidents
Cars that violate parking ordinances
Owner of car consents
Automobile is stolen or reasonable belief it is stolen
Abandoned, hazard, or a danger
DWI if there is no one else to take the car.
Code: search warrant needed for the contents or data stored in cell phone
Owner consents
Phone has been repo

the evidence may still be admissible under the good faith exception. 
Otherwise inadmissible evidence becomes admissible only when “the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on PC.
Texas requires more than the federal good faith rule: actual probable cause.
Usually applies only to technical errors like a missing a signature.
Franks Hearing: Normally, the defendant is not allowed to attack the accuracy of the statements contained within the affidavit or search warrant. There is a limited exception to this rule when it comes to facial attacks by the defendant: where there are allegations the affiants made material, knowing misrepresentations in the affidavit. When the defendant makes such allegations, he is entitled to a Franks hearing.
Defendant must prove by a preponderance of the evidence:
The affiant made at least one false statement in the search warrant affidavit;
The false statement(s) was made intentionally, knowingly, or with reckless disregard for the truth; and
The false statement was material- without the false statement, probable cause would be lacking.
Chapter 2: ARREST
A valid arrest warrant results in the seizure of a person and his detention until he bonds out of jail or answer to the crime in court.
Overview-Seizure of a Person / Requires Probable Cause- EVERY arrest- which in arrest context means
A crime has occurred, 2) and a belief the person arrested committed the crime.
*Note- degrees of intrusion w/ different legal justifications
Arrest Warrants are legally preferred. Warrant issued by a neutral third party (magistrate) offers both the officer and the suspect a significantly better chance that violations will not occur.
However, there are a “few specifically defined and delineated exceptions”
What is an Arrest?
Arrest: when a person has
Been actually placed under restraint / taken into custody
Can be made by an officer or person with or without a warrant
Three Forms of Arrest Statutorily Authorized
By a Police Officer w/ Warrant
By a Police Officer w/o a Warrant
Citizen’s Arrest
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