3-1
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 Statutory Law
§3:90.2 Case Law
§3:91 Blood Draws
§3:100 Article 38.23 Jury Charge
§3:110 Challenging Searches of Person
§3:10 T C L’ H 3-2
§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.
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 v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1 968);
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).
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.
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.
• The use of language or tone of voice of the
officer indicating that compliance with the
officer’s request might be compelled.
California v. Hodari; Kaupp v. Texas 538 U.S.
626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003).
However, a show of authority, without an
application of physical force, to which a suspect
yields, is not a seizure under the Fourth Amendment.
California v. Hodari; Johnson.
Investigatory detentions and arrests are both
seizures. Johnson, supra.
Article I, §9 of the Texas Constitution is consistent
with the Fourth Amendment of the United States
Constitution in determining whether police seizures,
including Terry stops, are reasonable. Davis v. State,
829 S.W.2d 218 (Tex. Crim. App. 1992).
Under both the Fourth Amendment and Article I,
§9, in either an arrest or investigative detention, the
