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Search and Seizure

The Fourth Amendment protects citizens from unreasonable searches of their property and persons. Citizens have the right to consent or not consent to a search by Law enforcement unless there is probable cause to search which waives this right.

If there is no probable cause and the person does not consent, then the officer must present a signed warrant from a magistrate judge that allows the search.

The definition of the term “probable cause" in the context of search and seizure is tangible proof indicating that a person is engaging in criminal activity.

Examples Include:     

  • Surveillance- the officer observes suspicious behavior on your part - such as speaking with known drug dealers or hanging out in an area known for drug activity.
  • Signed affidavit - a person swears that they saw you taking drugs, saw drugs in your home or purchased drugs from you.
  • Hearsay -someone overheard you talking about a drug deal. While hearsay is generally not admissible in court, it can sometimes be used for a warrant.
  • Visible evidence - items related to criminal activity can be seen.


Attorney for Search and Seizure’s in Austin, TX

At The Law Office of Kevin Bennett attorneys are knowledgeable about Fourth Amendment laws which protect citizens from illegal searches and seizures, searches without probable cause, or reasonable suspicion, search warrants, and vehicle searches.

If your Fourth Amendment rights were violated during your arrest, you have the right to challenge the case during a probable cause hearing. Before trial, your attorney can also file and litigate a motion to suppress any evidence illegally seized which can result in a dismissal of the charges.

Kevin Bennett is a licensed and experienced attorney in Austin and Taylor County, TX. The Law Office of Kevin Bennett also represents clients in the surrounding areas including: Jones County, Shackelford County, Callahan County, Coleman County, Runnels County, Nolan County, and Mitchell County.

Call The Law Office of Kevin Bennett at (512) 476-4626 for a free one on one consultation to discuss your case.


Types of Searches and Seizures in Texas

What is a search?

A search occurs when an expectation of privacy that society considers reasonable is infringed. A search is an invasion of privacy and may lead to an arrest.

What is a seizure?

A seizure of property occurs when property is forcibly taken by a government law enforcement official from a person who is suspected of violating, or is known to have violated the law.

It is important to know that there are justifiable warrantless searches and seizures. An example would be when a person has been arrested after a robbery and police seize stolen property on their persons. If something is seized during a lawful arrest the evidence will be admissible in court. Many times they have the right solely because they are disarming the suspect to take him or her into custody. The Fourth Amendment also permits searches that are deemed reasonable.


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Illegal Search and Seizures in Texas

When a search violates your fourth amendment any evidence seized CANNOT be used as direct evidence against the defendant in a criminal prosecution. This is known as the exclusionary rule explained in  Kentucky v. King, 131 S.Ct. 1849 (2011).

Filing motions to exclude illegally seized evidence can be an important part of your case. This is why it is important to talk to a trusted lawyer about the details of your arrest and search to decide if law enforcement officers acted outside of their lawful authority.

When something is in plain view, then a law enforcement officer does not necessarily need a search warrant to seize evidence. The “plain view” doctrine can apply to a search of your car or items on your person.  

If you were pulled over for a traffic violation and the officers have no reasonable suspicion or probable cause of your involvement in a crime, then the officers don’t have a right to search without a warrant. A limited exception to this rule might apply if the officer has good cause to believe your vehicle contains evidence of a crime.

At The Law Office of Kevin Bennett, we fight cases involving illegal searches and seizures. Kevin Bennett will help you challenge the prosecution’s case. If the evidence in your case was seized without a warrant, then the prosecutor has the burden of showing that the warrantless seizure was lawful.

The goal in these cases is getting the judge to throw out evidence so that the charges can be dismissed before trial.


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Additional Resources
Warrantless Search and Seizure – Search the Texas District and County Attorneys Association (TDCAA) website to find articles written by prosecutors in state court about the most common exceptions to the warrant requirement. This article explains the practical difference between the exigent circumstances exception and the community caretaking function.

The Search and Seizure: Exploring the Fourth Amendment Study Guide – Visit the website of the University of Texas at Austin to find a study guide created as part of a collaboration between the Annette Strauss Institute for Civic Life at the University of Texas at Austin and the Texas Young Lawyers Association, which is typically referred to as the "public service arm" of the State Bar of Texas. This study guide explains the protections guaranteed by the Fourth Amendment, as well as analyzes the U.S. Supreme Court’s interpretations of the Fourth Amendment.  In 2000, The Annette Strauss Institute for Civic Life was established at The University of Texas at Austin. Its mission was to respond to growing political disaffection within the United States of America.


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Locate an Attorney for Search and Seizure Investigations in Austin, TX

If you have been criminally charged with a crime in Austin, Pflugerville, West Lake Hills, or surrounding areas, then contact an attorney at The Law Office of Kevin Bennett today.

In many of these cases, the criminal defense attorney can file and litigate a motion to suppress evidence illegally gathered during the investigation.

The firm is conveniently located in downtown Austin, TX, on W.15th Street. The officer is minutes away from the University of Texas at Austin and the Bullock Texas State History Museum.

Kevin Bennett represents clients throughout Austin and Taylor County, TX. He also represents clients in the surrounding counties including Mitchell County, Nolan County, Shackelford County, Jones County, Callahan County, Coleman County, and Runnels County.

At The Law Office of Kevin Bennett the details of your search and seizure will be carefully analyzed. Contact The Law Office of Kevin Bennett for a free case evaluation to learn more about your legal options.


This article was last updated on Wednesday, November 9, 2016.