Motions Related to Searches of Persons

• Author: Robert K. Gill/Mark G. Daniel
• Pages: 123-158

3-1

CHAPTER 3

motions Related to

seaRChes of PeRsons

I. Motions to Suppress Evidence

A. General Points

§3:01 Purpose of Motion

§3:02 Constitutional and Statutory Provisions

§3:03 Requirements for Searches

§3:04 Burdens of Proof Regarding Arrest and Search

§3:05 Rules at Suppression Hearing

§3:06 Findings of Fact and Conclusions of Law

B. Suppressing Evidence in Specific Circumstances

1. Illegal Detention or Arrest

§3:10 Illegal Detention of Defendant

§3:11 Illegal Warrantless Arrest

§3:12 Illegal Arrest Under Warrant

2. Illegal Search

§3:20 Consent to Search

§3:21 Search of Defendant’s Person

§3:22 Protective Search

§3:23 Search of Defendant Incident to Search Warrant

§3:24 Invasive Body Search of Defendant

§3:25 Search of Defendant During Illegal Vehicle Stop

§3:26 Search of Defendant While in Public Transit (Bus and Airplane

Searches)

§3:27 Canine Searches

Texas Criminal Forms 3-2

II. Motions to Suppress Arrest Warrant

§3:30 Affidavit Requirements and Burden of Proof

§3:31 Contents of Motion

III. Suppressing Searches of Medical Records

§3:40 Statutory Provisions

§3:41 Case Applications

IV. Motion in Limine

§3:50 Motion in Limine Illegal Detention, Arrest or Search of Defendant

V. Forms

Form 3-1 Findings of Fact and Conclusions of Law on Motion to Suppress

Form 3-2 Motion to Suppress Evidence: Illegal Detention of Defendant

Form 3-3 Motion to Suppress Evidence: Illegal Warrantless Arrest of Defendant

Form 3-4 Defendant’s Brief in Support of Motion to Suppress Search Based on Illegal

Detention

Form 3-5 Motion to Suppress Evidence: Illegal Arrest of Defendant Under Warrant

Form 3-6 Motion to Suppress Evidence: Illegal Search of Defendant’s Person

Form 3-7 Consent to Search

Form 3-8 Motion to Suppress Evidence: Invalid Consent to Search

Form 3-9 Defendant’s Brief in Support of Motion to Suppress Search Based on Invalid Consent

Form 3-10 Motion to Suppress Evidence: Invalid Protective Search

Form 3-11 Motion to Suppress Evidence: Invalid Search of Defendant Incident to

Search Warrant

Form 3-12 Motion to Suppress Evidence: Illegal Invasive Body Search of Defendant

Form 3-13 Motion to Suppress Evidence: Search of Defendant During Illegal Vehicle Stop

Form 3-14.1 Motion to Suppress Evidence: Illegal Search of Defendant While in Public Transit

(Bus & Airplane Searches)

Form 3-14.2 Motion to Suppress Evidence: Illegal Canine Search

Form 3-15 Motion to Suppress Arrest Warrant Affidavit: Misrepresentations in Affidavit

Form 3-16 Motion to Suppress Evidence of Defendant’s Medical Records

Form 3-17 Motion in Limine (Illegal Detention or Arrest of Defendant)

Form 3-18 Motion in Limine (Illegal Search of the Person of the Defendant)

3-3 moTions relaTed To searChes oF Persons §3:02

I. MOTIONS TO SUPPRESS

EVIDENCE

A. GenerAl points

§3:01 Purpose of Motion

The purpose of a Motion to Suppress Evidence

is to show the trial court that evidence was illegally

obtained; and therefore should be excluded from the

jury’s consideration.

In the context of an illegal arrest, if defense coun-

sel can demonstrate that the arrest was not based on

adequate probable cause, all evidence seized as a result

of a search incident to the arrest should be suppressed.

See §§3:10 et seq.

PRACTICE TIP:

Another benefit to requiring the trial court to hear

testimony on a Motion to Suppress Evidence is to

discover what the testimony of the involved law

enforcement agents will be at trial. At the hearing,

counsel can also lock in their testimony on crucial

points for later presentation to the jury.

PRACTICE TIP:

Defense counsel should always include a request

within a general discovery motion that the State

make known to the defense any search and/or

arrest warrants and affidavits that may be a

part of the case.

§3:02 Constitutional and Statutory

Provisions

United States Constitution Amend. IV.

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches or 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.

United States Constitution Amend. XIV.

… nor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Texas Constitution Art. I, §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.

Tex. Code Crim. Pro. Art. 15.22. When a Person Is

Arrested

A person is arrested when he has been actual-

ly placed under restraint or taken into custody

by an officer or person executing a warrant

of arrest, or by an officer or person arresting

without a warrant.

Tex. Code Crim. Pro. Art. 38.23. Evidence Not to

Be Used

(a) No evidence obtained by an officer or

other person in violation of any provi-

sion of the Constitution or laws of the

State of Texas, or of the Constitution or

laws of the United States of America,

shall be admitted in evidence against

the accused on the trial of any crimi-

nal case. In any case where the legal

evidence raises an issue hereunder,

the jury shall be instructed that if it

believes, or has a reasonable doubt, that

the evidence was obtained in violation

of the provisions of this Article, then

and in such event, the jury shall disre-

gard any such evidence so obtained.

(b) It is an exception to the provisions

of Subsection (a) of this Article that

the evidence was obtained by a law

enforcement officer acting in objec-

tive good faith reliance upon a war-

rant issued by a neutral magistrate

based upon probable cause.

PRACTICE TIP:

This statute is known as the exclusionary rule.

See also Texas Criminal Lawyers Handbook

§§1:20 et seq. concerning warrantless arrests.