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Criminal Procedure Checklist
Fourth Amendment
I. General
I..a The governmental search and seizure of persons, houses, papers, and effects must
be reasonable
I..b Warrants shall have probable cause supported by oath/affirmation describing the
searches and/or seizures
I..c Fourth Amendment applies when a government of the United States searches or
seizes a person in the United States
I..d State action is required
I..e The Fourth Amendment has been incorporated through the Fourteenth Amendment
and applies to the states
I..f The Federal Constitution is a floor that grants only minimal rights
I..g State Constitutions can grant more protection than the Federal Constitution
II. Search
II..a Actual subjective expectation of privacy AND reasonable expectation of privacy
(recognized by society as legitimate)
II..b Reasonable expectation of privacy
II..b..i "Plain Feel Searches" if "probing tactile examination" of property
II..b..ii Thermal Detection Devices detecting heat from inside the home
II..b..ii..1 Where technology allows police to view in the home, consider
the availability of the technology to the general public (eyeglasses v. night vision goggles—more available to society = less likely a search)
II..c No reasonable expectation of privacy
II..b..ii..2 Search in an open field is not a search UNLESS
II..b..ii..2..1 Curtilage—proximity to the home, enclosures, use of area within
curtilage, steps taken to protect from passers-by
II..b..ii..3 Assumption of Risk
II..b..ii..3..1 Consensual electronic surveillance is not a search because one
"assumes the risk" that another will relay communication to the police
II..b..ii..3..2 Where police request bank records
II..b..ii..3..3 Where police request pen registers
II..b..ii..3..4 Numbers left on pagers by callers BUT
II..b..ii..3..4..a Owner of pager has reasonable expectation of privacy—
similar to address book
II..b..ii..4 No reasonable expectation of privacy in trash UNLESS
II..b..ii..4..1 In the curtilage
II..b..ii..5 Public Areas
II..b..ii..5..1 Homeless persons have a reasonable expectation of privacy in
their belongings placed on public property BUT NOT stuff on private property
II..b..ii..5..2 No reasonable expectation of privacy in a bathroom stall where
anyone could observe from outside the stall
II..b..ii..6 No reasonable expectation of privacy under aerial surveillance UNLESS
II..b..ii..6..1 Overflight disturbs property
II..b..ii..7 Police dog sniffing is not a search if all it reveals is the presence of an
illegal substance BUT cannot be grounds by itself for opening the container
III. Seizure
III..a Interference with property rights
III..b Interference with personal freedom (Arrest)
III..c Forcible Stop is a seizure if individual is not "free to leave" under the circumstances
III..d If the individual is "free to leave" under the circumstances, it is a mere encounter
IV. Probable Cause
IV..a Search: Probable cause to believe there is evidence of a crime therein
IV..b Seize: Probable cause to believe the item(s) is evidence of a crime
IV..c Arrest: Probable cause to believe the individual is guilty of a crime
IV..d Probable Cause for a Warrant to be Issued
IV..d..i Totality of the Circumstances
IV..d..ii Persons giving information as basis for probable cause
IV..d..ii..1 Veracity and reliability of the Information
IV..d..ii..1..a Citizens presumed truthful
IV..d..ii..1..b Officers presumed truthful
IV..d..ii..1..c Hearsay is O.K. unless it's the only basis for probable
cause
IV..d..ii..1..d Police Follow-Up Investigation to corroborate information
IV..d..iii Neutral and detached magistrate must find a fair probability that
evidence of a crime will be found/fair probability that the individual committed the crime
IV..d..iv Reviewing court must find a substantial basis for magistrate's conclusion that
probable cause existed
V. Information in the Warrant
V..a Place to be searched—whether the officer made a good faith effort to accurately
describe the place to be searched
V..b Things to be seized—places that could reasonably hold the "thing" to be seized
V..c Execution—must be reasonable
V..d Federal Rules of Criminal Procedure
V..d..i Issuance—Federal magistrate or state court within district
V..d..ii Things Seized—contraband, property, instrumentalities, fruits of a crime
V..d..iii Staleness—10-day-limit on the life of the warrant
V..d..iv Daytime—Before 10:00 PM
V..d..v Copy and receipt for property seized
V..d..vi Remedies—motion to return unlawfully seized property or motion to suppress
VI. Arrests (No Warrant to Seize Person)
VI..a Arrests in the home require a warrant UNLESS exigent circumstances exist
VI..a..i Inside the door and voluntarily opened
VI..a..ii Consider: Home F 0 E 0Apartment F 0 E 0Hotel F 0 E 0Office F 0 E 0Public (Warrant F 0 E 0No warrant)
VI..a..iii Policy—sanctity of the home
VI..b Felony or misdemeanor in the presence of the officer does not require a warrant
VI..c Where there is probable cause to believe a felony has been committed, no warrant
required to arrest
VI..d Where a misdemeanor-fine only offense is committed in the presence of an officer, no
warrant required to arrest
VII. Procedure after Warrantless Arrest (Due Process)
VII..a Must be made within 48 hours after arrest
VII..a..i If so, presumed constitutional
VII..a..ii F 0 4 4must prove no delay was necessary or police tried to collect evidence within
that time
VII..b If not made within 48 hours after arrest
VII..b..i Presumed unconstitutional
VII..b..ii Police must prove they could not give a hearing within 48 hours
VII..c Evidence obtained within the 48 hour span is not suppressed even if the hearing was
not given within 48 hours UNLESS the delay caused the evidence to be obtained
XIII. Exigent Circumstances (No Warrant or Probable Cause Requirements)
II..b..ii..2..2 Escape: Totality of the circumstances
II..b..ii..2..3 Danger to the Public: adequate basis to justify the emergency situation
II..b..ii..2..4 Evidence
II..b..ii..2..4..i Drugs: Totality of the circumstances
II..b..ii..2..4..ii Crime Scene: consent F 0 E 0initial entry = no warrant F 0 E 0when police
return, must have a warrant
II..b..ii..2..4..iii Police may forbid entry into a home to preserve evidence while
a warrant is obtained if done reasonably (reasonable in time and scope)
XIV. Consent (No Warrant or Probable Cause Requirements)
II..b..ii..3..5 Voluntary under the totality of the circumstances
II..b..ii..3..6 Undercover Operations
II..b..ii..3..6..i Consensual conversation while officer or other party is
recording is NOT a search
II..b..ii..3..6..ii Scope of consent limits undercover officer's ability to search
XV. Inventory Searches (No Warrant or Probable Cause)
II..b..ii..4..2 Property (Cars, containers, or person) is lawfully taken into custody AND
II..b..ii..4..3 Carried out for caretaking functions pursuant to neutral guidelines or universal
practice
II..b..ii..4..3..i (1) Protection of officers; (2) Protection of owners; (3) Prevent
lawsuits against police for losing property
II..b..ii..4..4 Containers can be searched if the purpose for the search is a caretaking
function, NOT search for evidence
XVI. Roadblocks (No Warrant or Probable Cause Requirements)
II..b..ii..5..3 Where police are primarily enforcing public safety, not criminal law, no
warrant or probable cause requirements are necessary
II..b..ii..5..3..i Balance government interests with private interests
II..b..ii..5..3..ii Make sure there is a police policy that takes away officer
discretion to stop (ex—every third car is stopped)
II..b..ii..5..3..iii Minimize level of intrusion
II..b..ii..5..4 Mixed motives are permissible
II..b..ii..5..5 Pretextual roadblocks have been held unreasonable
II..b..ii..5..6 Drug checkpoint alone is unreasonable because the primary purpose is
enforcing criminal law
XVII. Administrative Searches
II..b..ii..6..2 Totality of the Circumstances AND
II..b..ii..6..3 No warrant requirement
II..b..ii..6..3..i Balance public interests against private interests
XVIII. Special Needs Searches
XVIII..a Students in public school
XVIII..a..iReasonable individualized suspicion
XVIII..a..iiBalance school interests with student interests
XVIII..b Suspicionless Drug Testing
XVIII..b..iBalance government interests with individual privacy
XIX. Exclusionary Rule
XIX..a Rule—Evidence obtained in violation of the Fourth Amendment shall be excluded
XIX..b Policy—Deter police from violating the constitution
XX. Standing to Challenge Fourth Amendment Violations
XX..a Search: Whether F 0 4 4at issue had a legitimate expectation of privacy in the place
searched
XX..a..i Totality of the circumstances
XX..a..i..1 Relationship between owner and F 0 4 4
XX..a..i..2 Time spent at place searched
XX..a..i..3 Sleepover rule
XX..b Seizure—Whether F 0 4 4at issue had an individual property or possessory interests in the
thing seized
XX..c Causation (Illegal search causes the seizure of evidence OR Illegal arrest causes
confession)
XX..c..i But for the illegality, the evidence would not have been obtained AND
XX..c..ii Illegality was the proximate cause of the evidence being obtained
XX..c..ii..1 Whether, considering the totality of the circumstances, the
independent free will of the F 0 4 4OR an intervening event broke the chain of causation
XX..c..ii..1..a Miranda warnings alone do not cure the illegality
XX..d Exceptions (where a violation of the 4th Amendment has been established AND the
illegality was the cause of the evidence being obtained)
XX..d..i Independent Source Doctrine—If the search or seizure was independent from
any violation of the Fourth Amendment, the evidence is admissible
XX..d..i..1 Illegality NOT used to establish probable cause for warrant
XX..d..i..2 Exception—illegality used to establish probable cause AND
grossly intrusive police behavior
XX..d..i..3 Problems—opens the door to confirmatory searches BUT is not
happening in practice (officers do not try to violate the Fourth Amendment)
XX..d..ii Inevitable Discovery Doctrine—IF the evidence would have inevitably been
discovered absent the violation of the Fourth Amendment, the evidence is admissible
XX..d..ii..1 Preponderance of the evidence that
XX..d..ii..1..a Officers would inevitably discovered the evidence linking
F 0 4 4to the crime
XX..d..ii..1..b Officers were already looking in the place where the
evidence was
XX..d..iii Good Faith Exception
XX..d..iii..1 Good faith, reasonable reliance, on a defective warrant issued
by a neutral magistrate, the exclusionary rule does not apply
XX..d..iii..2 Exceptions
XX..d..iii..2..a Misleading evidence
XX..d..iii..2..b Magistrate is not neutral
XX..d..iii..2..c Police submit clearly insufficient affidavit
XX..d..iii..2..d Warrant is facially deficient
XX..d..iii..3 Policy—only apply exclusionary rule for police misconduct, not
magistrates mistakes
Fifth Amendment
I. General
I..a No person shall be compelled in a criminal case to be a witness against himself
II. Elements
II..b..iv Miranda Rights
II..b..iv..i Right to remain silent (Fifth Amendment)
II..b..iv..ii Anything said can and will be used against you in court (consequence,
not a right)
II..b..iv..iii Right to the presence of an attorney during questioning
II..b..iv..iv Right to have attorney appointed if you cannot afford one (not
mandatory if police know you can afford an attorney)
II..b..v Custodial Interrogation
II..b..v..i Custody
II..b..v..i..1 Whether, under the totality of the circumstances, the suspect
has been deprived of his freedom of action in any significant way (free to leave)
II..b..v..i..1..a Arrests generally, but NOT Terry Stops
II..b..v..ii Interrogation
II..b..v..ii..1 Express questioning OR
II..b..v..ii..2 Functional equivalent of express questioning
II..b..v..ii..2..a Any words or police action which the police should know
is reasonably likely to elicit an incriminating response from THIS suspect
II..b..vi Exceptions to Miranda Warnings
II..c..i..2..e Public Safety/Emergency exception applies where, under the totality of
the circumstances, danger to the public outweighs the F 0 4 4's Fifth Amendment rights
II..c..i..2..f More compulsion is generally tolerated in such circumstances although
not freely admitted by the court
II..b..vii Waiver of Miranda Warnings Generally
II..b..vii..i Knowing AND voluntary waiver of rights
II..b..vii..i..1 Knowing—Full awareness of nature of the right AND
consequences of abandoning such right
II..b..vii..i..2 Voluntary—product of a free and deliberate choice
II..b..vii..ii Focus on the suspect
II..b..vii..iii Silence is not enough to constitute a valid waiver
II..b..viii Waiver after invocation of Miranda Rights
II..b..viii..i Whether, under the totality of the circumstances , the police
scrupulously honored F 0 4 4's invocation of Miranda rights
II..b..viii..ii Right to Silence—police may continue to interrogate UNTIL F 0 4 4makes an
express, unequivocal statement that the right to silence is being invoked
II..b..viii..iii Right to an Attorney—once the right to an attorney is invoked, police
must stop interrogation unless the communication is initiated by the suspect
II..b..viii..iv Policy—right to an attorney is generally a higher right than the right to
silence because invoking right to counsel requires additional time before it can be exercised
V. Identifications
II..c..ii Formal Charges—any police lineup after formal charges have been brought requires
the presence and participation of counsel
II..a..iii..ii..3 Policy—Prevent suggestive lineups
II..c..iii No Formal Charges—balance the benefit to the individual in having counsel present
WITH burden on society to have counsel present at this identification
II..c..iii..i Totality of the Circumstances
II..c..iv Permissible suggestiveness
II..c..iv..i Early Identifications—fresh in witness' mind, exonerate the accused
II..c..iv..ii Independent Source—If witness is able to identify suspect without any
suggestiveness and from an independent ability to identify the suspect the evidence of identification is admissible
II..c..iv..iii Photographic Identifications generally do NOT require the presence of
an attorney
Sixth Amendment
I. General
I..a In all criminal prosecutions, the accused shall enjoy the right to have the assistance
of counsel
I..b The accused in felony cases have a fundamental right to counsel
I..c The accused in misdemeanor cases have the right to counsel IF the benefits of
providing counsel outweigh the costs to society of providing counsel
I..d The accused in other cases will have the right to counsel IF liberty is at stake, but
NOT if money is at stake
I..d..i Gives trial judge choice between appointing counsel and being free to
sentence to imprisonment OR forego appointing counsel and be barred from sentencing to imprisonment
II. Scope of the Right to Counsel
II..a Right to counsel attaches at all critical stages of the proceedings
II..b Right to counsel attaches to appeals as of right
II..c Right to counsel does not attach to discretionary appeals
II..d Right to counsel does not attach to sentencing proceedings unless issues of
sentencing are disputed
II..e Right to counsel does not attach to administrative parole/probation proceedings
unless the issues presented require the presence and participation of an attorney
II..f Right to counsel attaches in juvenile cases
II..g Right to use of experts attaches if competent representation would require the aid of
experts
III. Effective Assistance of Counsel
III..a Counsel must provide objectively reasonable assistance AND
III..b The outcome does not prejudicially effect the defendant
