St. Mary's Law Journal
Privacy Lost: Comparing the Attenuation of Texas's Article 1, Section 9 and the Fourth Amendment.
The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This demonstrates that at the heart of these governing documents is a specific intent to protect privacy rights. This Article examines how the focus on Texas and federal courts on the Reasonableness Clause of the privacy protections has affected a loss of overall privacy rights. Part II discusses the language of the Fourth Amendment and Article I, Section 9 in detail, noting the Supreme Court’s historical interpretation of the Fourth Amendment requiring a warrant to ensure reasonableness. Part III examines Heitman v. State, which formally rejected the “harmonious interpretation” rule and transitioned Texas courts from lock-step analysis to independent interpretation of Article I, Section 9. Part IV critically analyzes Hulit v. State, which officially dispensed with the need for a warrant to ensure constitutionality. Part V discusses the Supreme Court’s continued movement away from the warrant requirement toward a focus on reasonableness. An analysis of the precedent established by the Texas Court of Criminal Appeals and the United States Supreme Court finds the parallels in judicial rationale result in an attenuation of privacy rights.
St. Mary's University School of Law
Kimberly S. Keller,
Privacy Lost: Comparing the Attenuation of Texas's Article 1, Section 9 and the Fourth Amendment.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol34/iss2/4
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