warrant requirement in Texas

2021The goal of police work is not the invasion but the protection of liberty.”) (emphasis added). 9 Welsh, 466 U.S. at 749-50 (“[P]olice bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.”); see also Gutierrez, 221 S.W.3d at 685 (“[T]he warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies.”) (citing United States v. Robinson, 414 U.S. 218, 243 (1973); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)). 7 The relevant exception to the

2016Exceptions to the warrant requirement include “voluntary consent to search, search under exigent circumstances, and search incident to arrest.” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim.

2025It is well-known that 7 exigent circumstances are an exception to the warrant requirement, and “hot pursuit of a fleeing suspect” is an exigent circumstance that allows “[p]olice officers [to] enter [a] premises without a warrant.” Kentucky v. King, 563 U.S. 452, 460 (2011); see Missouri v. McNeely, 569 U.S. 141, 149 (2013).

2024“A warrantless search or seizure is per se unreasonable under the Fourth Amendment unless it falls within a recognized exception to the warrant requirement.” Id. (citing Missouri v. McNeely, 569 U.S. 141, 148 (2013)).

2025“In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.” State v. Villarreal, 475 S.W.3d 784 , 795-810 (Tex Crim App 2014). 4 It is undisputed that this was a warrantless search.

2020“In general, to comply with the Fourth Amendment,[7] a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.” State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim.

2017Established exceptions to the warrant requirement include the consent exception, Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), the exigency exception, Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978), the automobile exception, California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985), the search-incident-to-arrest exception, United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), and the special-needs exception, O’Connor v. Ortega, 480 U.S. 709 , 107 S.Ct. 1492 , 94 L.Ed.2d 714 (1987).

2017Established exceptions to the warrant requirement include the consent exception, Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), the exigency exception, Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978), the automobile exception, California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985), the search-incident-to-arrest exception, United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), and the special-needs exception, O’Connor v. Ortega, 480 U.S. 709 , 107 S.Ct. 1492 , 94 L.Ed.2d 714 (1987).

2021The goal of police work is not the invasion but the protection of liberty.”) (emphasis added). 9 Welsh, 466 U.S. at 749-50 (“[P]olice bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.”); see also Gutierrez, 221 S.W.3d at 685 (“[T]he warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies.”) (citing United States v. Robinson, 414 U.S. 218, 243 (1973); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)). 7 The relevant exception to the

2018App. 2011). “[T]he warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim.

2015“In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.” Villarreal , — *5 S.W.3d at —, —, 2014 WL 6734178, at *8 ; see also Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967) (holding that warrantless search or seizure is per se unreasonable unless it falls under recognized exception to warrant requirement).

2015“In general, to comply with the Fourth Amendment, a search of a person pursuant to a criminal investigation (1) requires a search warrant or a recognized exception to the warrant requirement, and (2) must be reasonable under the totality of the circumstances.” Villarreal , — *5 S.W.3d at —, —, 2014 WL 6734178, at *8 ; see also Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967) (holding that warrantless search or seizure is per se unreasonable unless it falls under recognized exception to warrant requirement).

2023In that case, we regarded the plain view doctrine not as an exception to the warrant requirement but rather as a recognition that a defendant lacks any expectation of privacy in an object in plain view of the public.11 As such it would provide an independent justification for the seizure in this case rather than an exception to the application of the exclusionary rule.12 As we explained in Walter, “[t]he Supreme Court has explained that the “plain view” doctrine is not really an “exception” to the warrant requirement because the seizure of the property in plain view involves no invasion of pri

2023In that case, we regarded the plain view doctrine not as an exception to the warrant requirement but rather as a recognition that a defendant lacks any expectation of privacy in an object in plain view of the public.11 As such it would provide an independent justification for the seizure in this case rather than an exception to the application of the exclusionary rule.12 As we explained in Walter, “[t]he Supreme Court has explained that the “plain view” doctrine is not really an “exception” to the warrant requirement because the seizure of the property in plain view involves no invasion of pri

2015In Weems, 434 S.W.3d at 665 , we analyzed McNeely and concluded that section 724.12(b)(3)(B) does not constitute a valid exception to the Fourth Amendment’s warrant requirement.

2015Accordingly, in Huff, we held blood draw Weems's blood alcohol concentration was 0.18, we could not say the police officer acted in good faith when he making it likely that his blood alcohol concentration was 0.24 at failed to obtain a warrant based on section 724.012(b), which does the time of the accident. 434 S.W.3d at 667 . not dispense with the warrant requirement.

2014The Court of Criminal Appeals adopted the protective-sweep exception to the warrant requirement in Reasor. 12 S.W.3d at 816-17 .

2004Voluntariness of Horn’s Consent To show that the search was made with the property owner’s consent and thus trigger the consent exception to the warrant requirement, the State must prove by clear and convincing evidence, based on the totality of the circumstances, that the defendant gave consent freely and voluntarily. 6 Reasor v. State , 12 S.W.3d 813, 818 (Tex. Crim.

2020App. 2003) (emphasis added); Chimel v. California, 395 U.S. 752, 763 (1969). 10 Chimel, 395 U.S. 762–63. 11 United States v. Robinson, 414 U.S. 218, 234 (1973). 12 Arizona v. Gant, 556 U.S. 332, 335 (2009) (quoting Chimel, 395 U.S. at 763 ). 13 United States v. Chadwick, 433 U.S. 1, 15 (1977). 5 Accordingly, the exigency requirement is a necessary element of the search incident to arrest exception to the warrant requirement and should not be confused with the exigent circumstances exception.

2019The Court in Gant also recognized other exceptions to the warrant requirement, including the situation in which “there is probable cause to believe a vehicle contains evidence of criminal activity.” Id. at 347 (citing United States v. Ross, 456 U.S. 798 , 820–21 (1982)).

2015The deferential review “encourage[s] police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement.” Rodriguez v. State, 232 S.W.3d 55, 59-60 (Tex.Crim.App.2007).

2015The deferential review "encourage[s] police officers to use the warrant process rather than making a warrantless search and later attempting to justify their actions by invoking some exception to the warrant requirement." Rodriguez v. State, 232 S.W.3d 55 , 59–60 (Tex. Crim.

2019McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (footnote 7 and internal quotation marks omitted); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.).

2015McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.), cert. denied, 540 U.S. 1004 , 124 S.Ct. 536 , 157 L.Ed.2d 410 (2003); Best v. State, 118 S.W.3d 857, 862 (Tex.App.-Fort Worth 2003, no pet.).

2024These searches are “unqualified” and “are always justified under the search incident to arrest exception to the warrant requirement, upon no more justification than the arrest itself.” Id.

2022See Price v. State, No. PD-0722-19, 2020 WL 5754618 , at *3 (Tex. Crim. App. Sept. 23, 2020) (explaining that searches of the person of the arrestee, or “of property within the immediate control” of the arrestee, “are always justified under the search incident to arrest exception to the warrant requirement, upon no more justification than the arrest itself”) (quoting United States v. Robinson, 414 U.S. 218 , 235 -7- (1973)).

2015See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex.App.-- Corpus Christi Jan. 23, 2014, pet. granted)(holding repeat offender provision of the mandatory -7- blood draw statute did not constitute an exception to the Fourth Amendment’s warrant requirement).1 Other courts of appeals have since concluded that Texas’ mandatory blood draw and implied consent statutes do not provide an exception to the warrant requirement.

2015See State v. Villarreal, No. 13-13-00253-CR, 2014 WL 1257150, at *11 (Tex.App.- Corpus Christi Jan. 23, 2014, pet. granted)(holding repeat offender provision of the mandatory -7- blood draw statute did not constitute an exception to the Fourth Amendment's warrant requirement).

2015We held that “implied consent that cannot be withdrawn does not meet the requirements for voluntary consent under the Fourth Amendment.” Id.; see also State v. Anderson, 445 S.W.3d 895, 908 (Tex.App.-Beaumont 2014, no pet.) (concluding that section 724.012(b) “does not constitute an exception to the Fourth Amendment’s warrant requirement”); Aviles v. State, 443 S.W.3d 291, 294 (Tex.App.-San Antonio 2014, pet. filed) (op. on remand) (holding same); Forsyth v. State, 438 S.W.3d 216, 222-23 (Tex.App.-Eastland 2014, pet. ref'd) (holding that implied consent under Transportation Code is not equival

2015See id.; see also Perez v. State, 464 S.W.3d 34, 48 (Tex.App-Houston [1st Dist.] 2015, pet. filed) (“the warrantless taking of appellant’s blood sample pursuant to the implied consent/mandatory blood draw statutory scheme did not satisfy the requirements of the Fourth Amendment without a showing that some established exception to the warrant requirement applied”); State v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont 2014, no pet.) (holding that nothing in section 724.011 nor section 724.012 require police to take blood without a warrant); Gentry v. State, No. 12-13-00168-CR, 2014 WL 42155

2025I would require the court of appeals to reconsider whether probable cause could justify the search of six months of IP address information under 51 Carpenter, 585 U.S. at 311-15 (acknowledging the fact that people compulsively carry cell phones in support of a greater privacy concern for historical cell-site records and that cell phones are a pervasive and insistent part of daily life as a reason not to apply the third-party doctrine to such records); Riley, 573 U.S. at 395 (recognizing the pervasive character of cell phones, which “carry a cache of sensitive personal information,” as support

2024The statutory language makes clear that the scenario envisioned by the legislature is that the warrant requirement applies to a search of a person’s cell phone in the search-incident-to-arrest scenario contemplated in Riley v. California, 573 U.S. 373 , 134 S. Ct. 2473 (2014), discussed below.

2024Marijuana Odor and Probable Cause The automobile exception to the warrant requirement permits police officers to conduct a warrantless search of a vehicle if it is “readily mobile and there is probable cause to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim.

2020The automobile exception to the warrant requirement permits police officers to conduct a warrantless search of a vehicle if it is “readily mobile and there is probable cause to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim.

2026PROC. art. 14.01(b); see also Martinez v. State, 620 S.W.3d 734 , 740 (Tex. Crim. App. 2021) (“The burden is on the State to establish the reasonableness of a warrantless arrest.”); Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) (“The state may satisfy this burden by showing that one of the statutory exceptions to the warrant requirement is met.”).

2011App.), cert. denied, 130 S. Ct. 1015 (2009). 21 Amador, 221 S.W.3d at 672. 7 to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable.22 Whether a search is reasonable is a question of law that we review de novo.23 Reasonableness is measured by examining the totality of the circumstances.24 It requires a balancing of the public interest and the individual‘s right to be free from arbitrary detentions and intrusions.25 A search conducted without a warrant is per se unreasonable unless it falls within one of the ―specifical

2020Further, although Stroud acknowledges that the police may without a warrant detain “and assist an individual whom a reasonable person— given the totality of the circumstances—would believe is in need of help,” Laney v. State, 117 S.W.3d 854, 859 (Tex. Crim. App. 2003) (quoting Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999), he contends that the community-caretaking exception to the warrant requirement did not apply in the circumstances present here because he was not in distress when the police detained him, because he was on his property when the officers detained him, and because

2020Further, although Stroud acknowledges that the police may without a warrant detain “and assist an individual whom a reasonable person— given the totality of the circumstances—would believe is in need of help,” Laney v. State, 117 S.W.3d 854, 859 (Tex. Crim. App. 2003) (quoting Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999), he contends that the community-caretaking exception to the warrant requirement did not apply in the circumstances present here because he was not in distress when the police detained him, because he was on his property when the officers detained him, and because

2025It is well-known that 7 exigent circumstances are an exception to the warrant requirement, and “hot pursuit of a fleeing suspect” is an exigent circumstance that allows “[p]olice officers [to] enter [a] premises without a warrant.” Kentucky v. King, 563 U.S. 452, 460 (2011); see Missouri v. McNeely, 569 U.S. 141, 149 (2013).

2024“An officer may temporarily seize property without a warrant . . . if []he has ‘probable cause to believe that a container holds contraband or evidence of a crime’ and ‘the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.’” Burgard, 675 F.3d at 1032 (quoting Place, 462 U.S. at 701 ); see also Burgard at 1031 (discussing how officer seized defendant’s cell phone after officer received tip from defendant’s friend that phone contained “sexual images of young girls (possibly aged 14 or younger)” and how search warrant was later obt

2018See Forsyth v. State, 438 S.W.3d 216, 222 (Tex. App.—Eastland 2014, pet. ref’d) (holding that implied consent under the Transportation Code is not the equivalent to voluntary consent as a recognized exception to the warrant requirement). 8 In summary, we conclude that the State did not meet its burden to establish the reasonableness of drawing Ruiz’s blood without a warrant pursuant to sections 724.011(a) and 724.014(a) of the transportation code.5 See Ford, 158 S.W.3d at 492 .

2016Id. at 224 (declining to hold that an officer is not required to obtain a warrant for the blood draw or show that the blood draw was conducted under a recognized exception to the warrant requirement).

2020Further, although Stroud acknowledges that the police may without a warrant detain “and assist an individual whom a reasonable person— given the totality of the circumstances—would believe is in need of help,” Laney v. State, 117 S.W.3d 854, 859 (Tex. Crim. App. 2003) (quoting Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999), he contends that the community-caretaking exception to the warrant requirement did not apply in the circumstances present here because he was not in distress when the police detained him, because he was on his property when the officers detained him, and because

2016The emergency doctrine, which is an exception to the warrant requirement, permits warrantless police action where “the officer has an immediate, reasonable belief that he or she must act ‘to protect or preserve life or avoid serious injury.’” Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim.

2021By definition, protective 12 sweeps within the meaning of Buie cannot be based on general policy.”) (citing Florida v. J.L., 529 U.S. 266 , 272-73 (2000) (declining to adopt a firearm exception to stop-and-frisk Terry analysis); Mincey v. Arizona, 437 U.S. 385, 390-91 (1978) (rejecting an exception to the warrant requirement for searches of homicide scenes); and United States v. Hauk, 412 F.3d 1179, 1187 (10th Cir. 2005)); United States v. Schultz, 818 F. Supp. 1271, 1274 (E.D.

2017Established exceptions to the warrant requirement include the consent exception, Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), the exigency exception, Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978), the automobile exception, California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985), the search-incident-to-arrest exception, United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), and the special-needs exception, O’Connor v. Ortega, 480 U.S. 709 , 107 S.Ct. 1492 , 94 L.Ed.2d 714 (1987).

2015The automobile exception to the warrant requirement, first set out in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 (1925) and later repeated in numerous cases including California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 (1985), recognized that, although the privacy interests in an automobile are constitutionally protected, its ready mobility and capacity to be "quickly moved" justifies a lesser degree of protection, noting also that there had been a long-recognized distinction between stationary structures and vehicles.

2015The automobile exception to the warrant requirement, first set out in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 (1925) and later repeated in numerous cases including California v. Carney, 471 U.S. 386 , 105 S.Ct. 2066 (1985), recognized that, although the privacy interests in an automobile are constitutionally protected, its ready mobility and capacity to be "quickly moved" justifies a lesser degree of protection, noting also that there had been a long-recognized distinction between stationary structures and vehicles.

2016McNeely, 133 S.Ct. at 1561 , “In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.” Id.-, see Sutherland, 436 S.W.3d at 40-41 ; State v. Ruiz, 2015 WL 5626252, at *5 (Tex.App.—Corpus Christi 2015).

2015See id.; see also Perez v. State, 464 S.W.3d 34, 48 (Tex.App-Houston [1st Dist.] 2015, pet. filed) (“the warrantless taking of appellant’s blood sample pursuant to the implied consent/mandatory blood draw statutory scheme did not satisfy the requirements of the Fourth Amendment without a showing that some established exception to the warrant requirement applied”); State v. Anderson, 445 S.W.3d 895, 912 (Tex.App.-Beaumont 2014, no pet.) (holding that nothing in section 724.011 nor section 724.012 require police to take blood without a warrant); Gentry v. State, No. 12-13-00168-CR, 2014 WL 42155

2020App. 2003) (emphasis added); Chimel v. California, 395 U.S. 752, 763 (1969). 10 Chimel, 395 U.S. 762–63. 11 United States v. Robinson, 414 U.S. 218, 234 (1973). 12 Arizona v. Gant, 556 U.S. 332, 335 (2009) (quoting Chimel, 395 U.S. at 763 ). 13 United States v. Chadwick, 433 U.S. 1, 15 (1977). 5 Accordingly, the exigency requirement is a necessary element of the search incident to arrest exception to the warrant requirement and should not be confused with the exigent circumstances exception.

2007There was no danger ... to the officer. *400 Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), held that one exception to the Fourth Amendment’s warrant requirement for searches is that an officer may search the area within the immediate control of a person arrested.

2024An inventory search of a vehicle subject to impounding does not run afoul of the Fourth Amendment but is a “well-defined exception to the warrant requirement” in that 6 “[t]he policies behind the warrant requirement are not implicated in an inventory search, nor is the related concept of probable cause . . . .” Colorado v. Bertine, 479 U.S. 367, 371 , 107 S. Ct. 738 , 93 L.

2024An inventory search of a vehicle subject to impounding does not run afoul of the Fourth Amendment but is a “well-defined exception to the warrant requirement” in that 6 “[t]he policies behind the warrant requirement are not implicated in an inventory search, nor is the related concept of probable cause . . . .” Colorado v. Bertine, 479 U.S. 367, 371 , 107 S. Ct. 738 , 93 L.