3-1
SEARCH AND SEIZURE:
PERSONS
Chapter 3
SEARCH AND SEIZURE:
PERSONS
Table of Contents
§3:10 What Constitutes “Search” of a Person
§3:20 What Constitutes “Seizure” of a Person
§3:30 Degrees of Intrusion on Individuals
§3:31 Stop and Talk (Mere Encounters)
§3:32 Investigative Detentions (Terry Stops)
§3:32.1 Degree of Suspicion for Investigative Detention
§3:32.2 Scope of Detention
§3:32.3 Invalid Investigatory Detentions (Terry Stops)
§3:32.4 Searches of Persons During Investigative Detentions (Terry Searches)
§3:32.5 Plain Touch Doctrines
§3:33 Arrests
§3:40 Searches of Persons Incident to Arrest
§3:50 Searches of Persons During Stop of Automobile and Bus
§3:60 Searches of Persons Incidental to Search Warrants
§3:70 Inventory Searches of Persons
§3:71 Jail and Prison Searches
§3:80 Searches of Persons at Airports, Bus and Train Stations
§3:90 Invasive Body Searches
§3:90.1 Statutor y Law
§3:90.2 Case Law
§3:91 Blood Draws
§3:100 Article 38.23 Jury Charge
§3:110 Challenging Searches of Person
§3:111 Appellate Review of Motions to Suppress
§3:10 T C L’ H 3-2
SEARCH AND SEIZURE:
PERSONS
§3:10 What Constitutes “Search” of
a Person
A search occurs when an expectation of privacy
that society is prepared to consider as reasonable
is infringed. U. S. v. Jacobsen, 466 U.S. 109, 104
S.Ct. 1652, 80 L.Ed.2d 85 (1984); Richardson v.
State, 865 S.W.2d 944 (Tex. Crim. App. 1993).
A search in which the exclusionary rule may
apply is one in which there is a quest for, a looking
for, or a seeking out of that which offends against
the law by law enforcement personnel or their
agents. Vargas v. State, 542 S.W.2d 151 (Tex. Crim.
App. 1976).
A stop and frisk is a search and seizure. Terry
(1968); Davis v. State, 947 S.W.2d 240 (Tex. Crim.
App. 1997).
The taking of a defendant’s blood from his body
is a search for Fourth Amendment purposes. Davis
v. State, 831 S.W.2d 426 (Tex.App.—Austin 1992,
pet. ref’d.).
Requiring a defendant to produce handwriting
samples is not a search. Ayala v. State, 657 S.W.2d
910 (Tex.App.—Austin 1983, no pet.).
The use of a dog to sniff a person’s luggage that
is in a public place is not a search. United States v.
Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d
110 (1983); Strout v. State, 688 S.W.2d 188 (Tex.
App.—Amarillo 1985, no pet.).
The government conducts a search when it
attaches a device to a person’s body, without
consent, for the purpose of tracking that individual’s
movements. Grady v. N. Carolina, 575 U.S. ___,
135 S. Ct. 1368, 1370, 191 L.Ed.2d 459 (2015)
(where a satellite-based monitor was attached
to a sex-offender). The Court did not decide the
reasonableness of the search which will depend
on the totality of the circumstances, including the
nature and purpose of the search and the extent to
which the search intrudes upon reasonable privacy
expectations.
§3:20 What Constitutes “Seizure” of
a Person
A seizure of the person occurs when one of the
following has taken place:
• Physical force has been applied to the
body of the suspect.
• The suspect has actually submitted to
the officer’s show of authority.
California v. Hodari, 499 U.S. 621, 111 S.Ct.
1547, 113 L.Ed.2d 690 (1991); Johnson v. State,
912 S.W.2d 227 (Tex. Crim. App. 1995).
The application of physical force to the body of
a person with intent to restrain is a seizure even if
the person does not submit and is not subdued. Of
course, a seizure is just the first step in the analysis.
The Fourth Amendment does not forbid all or even
most seizures—only unreasonable ones. Torres v.
Madrid, 592 U.S. ___, 141 S.Ct. 989, 1003, 209
L.Ed.2d 190 (2021)(where the court found that
officers seized the defendant by shooting her with
intent to restrain her movement).
That is, a seizure of the person within
the meaning of the Fourth and Fourteenth
Amendments occurs when the police conduct
would have communicated to a reasonable person
that he was not at liberty to ignore the police
presence and go about his business. Florida
v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115
L.Ed.2d 389 (1991); Kaupp v. Texas, 538 U.S.
626, 123 S.Ct. 1834, 155 L.Ed.2d 814 (2003).
The same is true under CCP Art. 15.22 which
codifies the definition of arrest. Medford v. State,
13 S.W.3d 769 (Tex. Crim. App. 2000).
This definition has also been adopted for cases
to be decided under the Texas Constitution Art. I
§9. Johnson, supra.
A “show of authority” occurs when actions of the
police would cause a reasonable person to believe
he or she is not free to leave. Hernandez v. State,
963 S.W.2d 921 (Tex.App.—San Antonio 1998,
no pet.).
Examples of circumstances that may constitute
a seizure, even where the person does not try to
leave, include the following:
• The threatening presence of several
officers.
• The display of a weapon by an officer.
• Some physical touching of the person
of the citizen.
