Defective Warrant

Did you know that evidence that has been seized and used against you in a criminal charge might be suppressed if it was obtained by a defective search warrant. A search warrant must be issued by a neutral and detached magistrate and based on probable cause. The warrant must precisely describe with particularity the place to be searched and the items to be seized. In addition to the issuance of a valid warrant, the warrant must be executed property.

The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. The exclusionary rule is a doctrine that prohibits introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights. Under the rule, illegally obtained evidence is inadmissible at trial. Therefore it shouldn’t be considered during negotiations either!

The Texas Code of Criminal Procedure, Chapter 18, discusses search warrants. It defines a search warrant as a written order, issued by a magistrate and directed a to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate.

Issuance of Warrants

A search warrant will not be issued for any purpose unless sufficient facts are first presented to show that probable cause does exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause must be filed if a warrant is requested.

The sworn affidavit must show sufficient facts to establish probable cause including that a specific offense has been committed, that the property or items that will be searched for or seized constitute evidence of that offense, and that the property or items are located at or on the particular person, place, or thing to be searched. Only the specifically described items set forth within the search warrant may be seized.

Execution of Warrants

Article 18.06 sets forth the requirements in executing a warrant. Law enforcement must execute the warrant without delay, typically within 3 days from its issuance (there are other time frames depending on the items to be searched). In searching the place the officer executing the warrant must present a copy of the warrant to the owner of the place if he/she is present, or to someone else who is in possession of the place. Before taking property from the place an officer must take written inventory of the property, a copy of which must be presented to the owner.

If you are facing criminal charges and items have been seized in connection with your case, you may have a basis to exclude evidence from being admitted in trial. Law enforcement in Galveston County consistently makes mistakes when acquiring their warrants; don’t give up just because an officer presented a warrant to search your premises. An experienced attorney can analyze whether items were seized lawfully and can challenge a defective warrant.

Attorney Tad Nelson is a Board Certified® criminal defense attorney.

Call today to discuss your case.