Law enforcement searches fall into two broad categories – those conducted incident to a warrant and those conducted without a warrant.  The law favors searches made pursuant to a warrant as, assuming the validity of the warrant, a determination has already been made by a neutral and detached magistrate that there is probable cause for the search.  Many searches, however, are conducted by law enforcement without a warrant.  For example, vehicle searches for narcotics and other contraband, are both frequent and rarely conducted pursuant to a warrant.

Because Texas state and federal legislatures and courts recognize that there are many circumstances in which is not practical or possible for law enforcement to obtain a warrant, the law has been tailored to allow for warrantless searches under certain circumstances.

Plain View

An oft-cited justification for a warrantless search is that evidence or contraband was observed in plain view.  By way of simple example, if an officer pulls a person over for a traffic violation and observes marijuana in a cup holder in the center console, this is considered “plain view”.  An officer does not need a warrant when 1) the officer has “legitimate presence” in the place where he sees and seizes evidence or contraband; and 2) the item seized is immediately recognizable as evidence or contraband.  See Minnesota v. Dickerson, 508 U.S. 366 (1993).  Texas courts have followed this rule as noted in Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991) and State v. Haley, 811 S.W.2d 597 (Tex. Crim. App. 1991).

The requirement that the officer has “legitimate presence” would preclude the use of the plain view as a justification for search where, for example, an officer unlawfully enters a person’s home and then observes contraband.  Moreover, under the second prong of Dickerson, a search would not be justified by the plain view doctrine if, for example, an officer later found drugs in a purse that was in plain view, but the drugs were not visible before entering the purse.


When a person provides lawful consent to a search, law enforcement need not obtain a warrant.  A person’s consent must be voluntary and intelligent, and under Texas law, the government must demonstrate this by clear and convincing evidence (as opposed to a preponderance of the evidence under federal law).  See Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Hurtado, 905 F.2d 74 (5th Cir. 1990; Tex. Const. art. I, §9; State v. Ibarra, 953 S.W.2d 242 (Tex. Crim. App. 1997).  A person’s consent is not valid if coerced by law enforcement.

© 2021 David A. Nachtigall, Attorney at Law, PLLC