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 A lawful search of fixed premises generally includes the authority to open and search any rooms, closets, cabinets, chests, drawers or containers upon those particular premises.

U.S. v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572, 591 (1982) [relying on dicta].

“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus a warrant that authorizes an officer to search a home for [particular items] also provides authority to open closets, chests, drawers, and containers in which the [items] might be found.” U.S. v. Ross, 456 U.S. at 820-21.


 For example, in Texas, TEX. R. CRIM. P. Art. 18.02, sets out the “grounds for issuance” of a search warrant in Texas, and same expressly “except[s] the personal writings of the accused”. TEX. R. CRIM. P. Art. 18.02

While the Court of Criminal Appeals has never specifically addressed this issue4, it has in the past held that an item not listed as a “grounds for issuance” of search warrant cannot properly be the object of a search. Smith v. State, 557 S.W.2d 299 (Tex.Cr.App. 1977); Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App. 1977).

If an item not listed in TEX. R. CRIM. P. Art. 18.02 as a “Grounds for Issuance” of a search warrant cannot be the object of a search, then surely an item specifically and expressly excluded by that very statute should not be fair game. Thus “personal writings”, often seized in order to connect the accused to the searched premises or seized contraband should be excluded under TEX. R. CRIM. P. Art. 18.02(10)’s express prohibition when specified in the warrant or pursuant to TEX. R. CRIM. P. Art. 18.01(d) if they are not:

TEX. R. CRIM. P. Art. 18.01 Search Warrant:

(d)“only the specifically described property or items set forth in a search warrant issued under Subdivision

(10) of Article 18.02 of this code or property or items enumerated in Subdivisions (1) through (9) of Article 18.02 of this Code may be seized.” [emphasis supplied]

However, Article 18.02(10) does not exclude from seizure, as a personal writing, a list of stolen property.

Nikrasch v. State, 698 S.W.2d 443 (Tex.Crim.App. 1985).


 U.S. v. Perez, 700 F.2d 1232 (8th Cir. 1983) [warrantless entry into and securing of home for 13 ½ hours until search warrant could be obtained after Defendants were arrested was not justified]; U.S. v. Griffin, 502 F.2d 959, 961 (6th Cir. 1974); But see Segura v. U.S., 468 U.S. 796 (1984) (“The valid search warrant was a ‘means sufficiently distinguishable’ to purge the evidence of any ‘taint’ arising from the entry.” (quoting Wong Sun, 417 U.S. at 488))).

Officers may not enter a suspect’s home to effectuate an arrest without an arrest warrant and exigent circumstances making it impossible or impractical to obtain a warrant. Whether “hot pursuit” of a fleeing suspect justifies warrantless entry into the home, is a fact intensive question, which necessitates consideration of how severe the offense in question truly is. A misdemeanor offense is less likely to justify warrantless entry. Lange v. California, 141 S. Ct. 2011, 2024 (2021) (“The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all of the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so – even though the misdemeanant has fled.”).

4     The “personal writings” exception to the “grounds for issuance” of a search warrant has been mentioned in passing by the Court in Gentry v. State, 629 SW2d 77 (Tex.Cr.App. 1981); Aliff

  1. State, 627 SW2d 166 (Tex.Crim.App. 1982); Doescher State, 578 S.W.2d 385 (Tex.Cr.App. 1978).

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Morgan, 743 F.2d 1158 (6th Cir. 1984) [that encircling a home, flooding it with search light and coercing occupants out with a bullhorn amounted to a warrantless entry]; U.S. v. Maez, 872 F.2d 1444 (10th Cir. 1989) [where police surround home and order defendant to come out same vitiates consent given and taints statements given]; U.S. v. Edmondson, 791 F.2d 1512 (1986);

See also New York v. Harris, 495 U.S. 14, 109 L.Ed.2d 13, 110 S.Ct. 1640 (1990) [stamp of permiture upon a custodial statement obtained from a suspect detained outside his home after he had been illegally arrested, without a warrant in violation of Payton v. New York, explaining that Payton was designed to protect the physical integrity of one’s home, not to give the defendant additional protection for statements made outside his home]. The Fourth Amendment permits police officers to conduct a post-arrest, protective sweep of a home even if the officers’ fear of an ambush is not based on concern about a particular, identifiable person. The court decided that, in combination with other circumstances, a defendant’s “casual, inviting response” from the top of the stairs to police officers who had just burst into his home justified a search of the basement for any possible confederates planning an ambush or escape. See United States v. Winston, 444 F.3d 115 (1st Cir. 2006).

However, an “arrest” within [one’s own home] does not provide a license for the police to search the entire residence for evidence.”

U.S. v. Satterfield, 743 F.2d 827, 845 (11th Cir. 1984); U.S. v. Cueto, 611 F.2d 1056 (5th Cir. 1980).

Nor will same authorize entry of another’s home to effectuate that arrest, without a search warrant for the third party’s home or exigent circumstances.

Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

However, in Segura v. U.S., 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Chief Justice, in a portion of his majority opinion joined only by Justice O’Conner, stated that:

“We conclude that, assuming that there was a seizure of all the contents of the petitioner’s apartment when agents secured the premises from within, that seizure did not violate the Fourth Amendment. Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures.”  Segura v. U.S.,468 U.S. at 798.

See also Griswold, Criminal Procedure, 1969 — Is It A Means Or An End, 29 MD. L. REV. 307, 317 (1969);See generally2 W. LAFAVRE, SEARCH AND SEIZURE ‘ 6.5 (1978); U.S. v. Munoz-Guerra, 788 F.2d 295, 298

(5th Cir. 1986) [Government’s knowledge of the presence of firearms and destructible evidence within a home does not, by itself, justify a warrantless entry into that residence. There must be “reason to believe that a criminal suspect was aware of police surveillance”].

But see U.S. v. Morales, 868 F.2d 1562 (11th Cir. 1989) [drug agent’s seizure of defendant’s apartment was justified by the defendant’s statements and the possibility of destruction of evidence].


 Forcible entry for the purpose of executing a search warrant is Constitutional only as a last resort.

Dalia v. U.S., 441 U.S. 238, 247, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979); Payne v. U.S., 508 F.2d 1391, 1394 (5th Cir. 1975).

Where the manner of entry is potentially dangerous to the occupants or their neighbors, such as the deployment of a motorized battering ram, one court has required more than a valid warrant to justify such entry. The California Supreme Court in Hangford v. Superior Court, 729 P.2d 822 (Cal. 1987), held that a motorized battering ram could be used only upon:

  • obtaining a warrant upon probable cause:
  • receiving the magistrate’s authorization to use the ram, upon his weighing the risks against society’s interests; and
  • prior determination by police of either an immediate threat of injury to the officers executing the warrant or reasonable grounds to suspect destruction of


 Noncompliance with knock and announce requirement not justified by possibility that Defendant might destroy narcotics where there was no evidence or suspicion drugs would be destroyed. See also U.S. v. Morino, 701 F.2d 815 (9th Cir. 1983); Sabbath v. U.S., 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); U.S. v. Whitney, 633 F.2d 902 (9th Cir. 1980).



 The Court in Hudson v. Michigan, 547 U.S. 586 (2006), ruled that evidence need not be excluded when police violate the “knock-and-announce” rule. The opinion by Justice Scalia reaffirmed the validity of both the knock-and-announce rule and the “exclusionary rule” for evidence obtained by police in most cases of Fourth Amendment violation. However, the majority held that the exclusionary rule could not be invoked for evidence obtained after a knock-and-announce violation, because the interests violated by the abrupt entry of the police “have nothing to do with the seizure of the evidence.” Justice Scalia wrote that the knock-and-announce rule was meant to prevent violence, property-damage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible “deterrence benefits”, and that alternative measures such as civil suits and internal police discipline could adequately deter violations. Justice Stephen Breyer wrote a dissenting opinion, and was joined by Justices Stevens, Souter, and Ginsburg. The dissent noted the Court’s long history of upholding the exclusionary rule and doubted that the majority’s cited precedents supported its conclusion. The dissent also expressed doubt that knock-and-announce violations could be deterred without excluding the evidence obtained from the searches.


Citing Hudson, the Texas Court of Criminal Appeals upheld the search of a safe which prosecutor conceded was not described in the warrant. “Assuming that the seizure of the safes by the police violated appellee’s Fourth Amendment possessory rights in these safes, we believe that the ‘massive’ remedy of exclusion of the methamphetamine in this case is not required under the United States Supreme Court’s decision in Hudson v. Michigan.” State v. Powell 306 S.W.3d 761 (Tex.Crim.App. 2010).

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