Search Warrant — Application
A search warrant may not issue except on a sworn affidavit setting forth substantial facts establishing probable cause for issuance. Particularity required: place to be searched and items to be seized. Issued by a neutral and detached magistrate.
To prove this offense, the State must establish each of the following elements: Sworn affidavit; Substantial facts establishing probable cause; Particularity: place to be searched and items to be seized; Issued by a neutral and detached magistrate.
The base classification is Statutory procedure, with possible enhancements depending on the conduct, victim, location, or prior history of the actor.
Elements you must prove
- Sworn affidavit
- Substantial facts establishing probable cause
- Particularity: place to be searched and items to be seized
- Issued by a neutral and detached magistrate
A search warrant may not issue except on a sworn affidavit setting forth substantial facts establishing probable cause for issuance. Particularity required: place to be searched and items to be seized. Issued by a neutral and detached magistrate.
Practice 2 questions on this topic
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Worked examples
Under Art. 18.01, a search warrant must be supported by:
- An officer's hunch
- A written sworn affidavit setting forth substantial facts establishing probable cause Correct
- A magistrate's verbal authorization
- Anonymous tips alone
SCENARIO. An officer makes a lawful arrest for DWI. Without consent, the officer wants the driver's blood. The driver refuses. The officer must:
- Take the blood by force regardless
- Generally obtain a search warrant for the blood draw, unless an exception applies (e.g., exigent circumstances under McNeely's totality test); CCP art. 18.01 governs blood-draw warrants in Texas Correct
- Wait 24 hours for natural dissipation
- Refer to the DA
Statutory definitions for this topic
- Search warrant Tex. Code Crim. Proc. art. 18.01
- A written order issued by a magistrate to a peace officer commanding him to search for any property or thing and seize it as evidence. Must be supported by a sworn affidavit setting forth substantial facts establishing probable cause.