Code of Criminal Procedure · Art. 18.01

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
Texas Law — Charge Details
Procedure
Offense
Search Warrant — Application
Statute
Tex. Code Crim. Proc. art. 18.01
Classification
Statutory procedure

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

Worked example 1

Under Art. 18.01, a search warrant must be supported by:

  1. An officer's hunch
  2. A written sworn affidavit setting forth substantial facts establishing probable cause Correct
  3. A magistrate's verbal authorization
  4. Anonymous tips alone
Why: A search warrant may not issue except on a sworn affidavit that sets forth substantial facts establishing probable cause for issuance.
Statute: Tex. Code Crim. Proc. art. 18.01(b)–(c)
Worked example 2

SCENARIO. An officer makes a lawful arrest for DWI. Without consent, the officer wants the driver's blood. The driver refuses. The officer must:

  1. Take the blood by force regardless
  2. 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
  3. Wait 24 hours for natural dissipation
  4. Refer to the DA
Why: After McNeely, the natural dissipation of alcohol does not automatically create exigency; officers usually need a warrant for non-consent blood draws. Texas implied-consent law (Transp. Code ch. 724) allows breath/blood specimen requests, but for a forced draw the standard is a warrant or established exception. Birchfield held warrantless breath tests are permissible incident to arrest, but warrantless blood tests are not.
Statute: Missouri v. McNeely; Birchfield v. North Dakota; Tex. Code Crim. Proc. art. 18.01; Tex. Transp. Code §724

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.