Criminal Procedure Essay Outline
4th Amendment Search & Seizure
The 4th Amendment, which is applicable through the Due Process clause of the 14 th Amendment,
protects individuals from unreasonable searches & seizures in places where individual has a reasonable
expectation of privacy. In order for the search to be reasonable, a valid search warrant is required unless
it falls within an exception (search incident to an arrest, plain view search, automobile search, consent,
exigent circumstances or stop and frisk). Under the exclusionary rule, any evidence obtained in violation
of someone’s 4th Amendment right may not be used unless one of the exceptions apply (plain view,
independent source, inevitable discovery or attenuation).
A seizure occurs when the officer makes an arrest/detains an individual. Depending on whether
it is an arrest/detention determines whether the officer must have PC or RS to make the stop in the first
place. Here: ________ was required bc it was a ________. [arrest, detention to obtain search warrant
and stationhouse detention = PC; stop & frisk, automobile stop = RS that criminal activity is afoot]
Valid Warrant
A valid search warrant is based on probable cause, usually there is a police affidavit
demonstrating that a search or seizure will produce evidence. The affidavit usually must contain facts
showing probable cause or information from an anonymous source (police corroborated tip). If the
warrant is based on false information the warrant is invalid. Additionally, the warrant must describe with
certainty the place to be searched and/or items to be seized. Further, it must be issued by a neutral and
detached magistrate.
Upon issuance of the valid warrant, the officer must act on it without unreasonable delay. When
acting on it the officer must knock and announce first unless the officer has reasonable suspicion that
announcing their presence would be futile or dangerous to the investigation.
Valid Warrantless Searches (ESCAPIST)
Certain searches and seizures do not require a warrant. These are commonly known as the
warrant exceptions search incident to lawful arrest, plain view, consent, automobile, automobile
stop/checkpoint, stop & frisk and exigent circumstances). Here the applicable exception is ______.
Search Incident to Lawful Arrest: Under this exception the police may search a lawfully arrested person
and their immediate surrounding area without a warrant. The arrest must be lawful and the search must
be contemporaneous with the arrest. Additionally, the search is limited to places within the suspects
immediate reach or control. NOTE → If this is an arrest involving suspect and car, police can search the
vehicle’s interior and glove box - NO TRUNK, unless probable cause exists.
Plain View: Police may search any place where they are legitimately present and evidence of criminal
activity or contraband is present. Recall, the theory behind this is that we don’t want our officers to walk
away from a crime scene. Nevertheless, the police must have probable cause that the plainly viewed
item is contraband or relates to a crime. NOTE → This includes smell.
Consent: So long as the police have consent they can search anything unless the individual giving the
consent limits its scope. The most important concern with this exception is that the individual giving the
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consent has authority to give consent. Further, the police cannot lie or deceive to obtain consent, nor
does an officer have an obligation to tell the individual they have a right to refuse consent.
Automobile Search Exception: Under this exception, so long as probable cause exists, the officer can
search the entire vehicle (including the trunk!) as well as containers and compartments. More
importantly, that probable cause must exists before the search begins.
Automobile Stop & Police Checkpoints: Under this exception an officer must have reasonable suspicion
that a law has been violated. It doesn’t matter the officer’s subjective state of mind and whether the
stop was pretextual so long as there is reasonable suspicion. If there is reasonable suspicion the officer
has the authority to search passengers, passenger compartment or any open containers that may
reasonably contain evidence. On the other hand, if the vehicle is pulled over due to a checkpoint or
roadblock, the search is valid so long as the stop was neutral and based on an articulable standard (i.e.,
every fourth car) and serves a purpose related to automobiles and their mobility.
Terry Stop and Frisk: Under this exception an officer may detain an individual for investigative purposes if
they have reasonable suspicion that criminal activity is afoot. The detention must be reasonable in time
and limited to a frisk meaning if the officer believes the individual is armed they can frisk the suspect
and determine if he is armed based on ‘plain feel’. An officer cannot manipulate the item. It should also
be noted that a stop and frisk can turn into an arrest provided probable cause develops as a result of
something discovered during the stop and frisk.
Exigent Circumstances: An officer can seize/search evidence w/o a warrant if exigent circumstances exist.
Exigent circumstances include when an officer is in ‘hot pursuit’; the evidence is evanescent (meaning it
could disappear if officer = required to wait for a warrant); or if it is an emergency situation.
Special Circumstances: Special circumstances include public school searches, administrative searches or
searches at the border. With respect to public school searches, the school official can search a student if
the search offers a moderate chance of finding evidence of a wrongdoing, it is reasonably related to the
objective of the search and the search is not excessively intrusive in light of the student’s age and
gender. With respect to administrative agencies, government agencies may conduct routine searches or
inspections of highly regulated businesses or industries (airlines, food safety, building code inspection).
Finally, with respect to border control an officer or official may conduct a routine search without a
warrant, probable cause or reasonable suspicion. Border is defined as any place where one can arrive to
the US from a foreign country. Detention can occur at border if there is reasonable suspicion.
5th Amendment Privilege Against Self-Incrimination
The 5th Amendment, which is applicable to the states through the Due Process Clause of the 14 th
Amendment, guarantees a freedom against compelled self-incrimination in a civil or criminal case. To
protect this right, police are required to inform the detainees of their rights via Miranda warnings before
they conduct any custodial interrogation. Miranda warnings require the police inform the accused that
he has (1) a right to remain silent; (2) anything he says can be used against him; (3) he has the right to an
attorney; (4) if he can’t afford one, the state will appoint an attorney for him. After receiving Miranda
rights, the accused may either elect to remain silent or request counsel. If counsel is requested, it must
be an unambiguous request and all questioning must cease until counsel is provided and present.
This privilege does not extend to the gov’t’s grant of immunity from prosecution for self-
incriminating testimony, incrimination is not possible (i.e.,2 SOL has run), or the detainee/defendant
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waived the privilege. When waiving this privilege, the burden is on the prosecution to establish that the
waiver was valid by showing it was knowing, voluntary and intelligently made.
6th Amendment Right to Counsel
Under the 6th Amendment, when right to counsel attaches, police may not elicit any
incriminating responses from the Defendant absent the presence of counsel. Unlike the 5 th Amendment
right to counsel via Miranda, this right is automatic and attaches once charges have been filed. However,
it is offense specific, meaning the police can question the suspect about any other crimes without
violating the 6th Amendment right to counsel. 1
It should also be noted that the 6th Amendment right to counsel extends to in-person line-up or
showup identifications. Identifications should not be unnecessarily suggestive/present a substantial
likelihood of misidentification. While the 2 aforementioned factors are determined under a totality of
circumstances test, the remedy consist of suppressing any subsequent in-trial IDs made by a witness.
Double Jeopardy
Double jeopardy essentially means that the defendant cannot be retried for the same criminal
offense once jeopardy attaches. Situations in which double jeopardy usually arises involve the D being
charged with one crime & then charged with another crime based on the same offense. For purposes of
double jeopardy, offenses are not the same if conviction for 1 offense requires proof of an element not
included in the other offense. There are exceptions to this same offense rule, including the availability of
new evidence for a greater offense, or if there is a battery, however the individual later dies as a result of
the battery. It should also be noted this applies only in criminal cases and attaches either when the jury
is sworn in or at a bench trial when the first witness is sworn in.
1 Note the main difference b/w 5th and 6th amendment right to counsel is that 5th amendment applies to custodial
interrogation whereas the 6th amendment right to counsel occurs automatically after charges have been filed.
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