CRIMINAL PROCEDURE
1) Arrest (4A)
Under the Fourth Amendment of the US Constitution, a governmental agent cannot carry out an arrest
unless he has probable cause to believe that the arrestee has committed a crime under the totality of
the circumstances, based upon trustworthy sufficient information. An arrest may be seen as a seizure,
in which a reasonable person would not feel free to terminate his encounter with a police officer or
escape from the situation. Examples include threatening presence of several officers, display of
weapons, physical touching, or indication that compliance with request is an order. An arrest may
also require a warrant if an arrest is being made at a person’s own dwelling, unless during an
emergency situation (hot pursuit of a fleeing felon), in a public place, consent is given to enter the
dwelling, during exigent circumstances, or for a misdemeanour arrest. Ultimately, an arrest warrant
allows police to enter the arrestee’s home only, not third parties.
2) Search and Seizure (4A)
Under the Fourth Amendment, an individual cannot be subject to an unlawful search or seizure. This
requires three elements. Firstly, the search or seizure must have been conducted by a governmental
agent, such as a police officer or a private citizen acting pursuant to the police officer’s directions. If
a private citizen searches or seizes items of a crime from an individual, he cannot assert his Fourth
Amendment rights. Secondly, the individual must have standing to demonstrate that the police were
either intruding upon a constitutionally protected area, or they were invading his reasonable
expectation of privacy. An individual may enjoy reasonable expectations of privacy at his own
dwelling which he owns as a landlord, occupies as a tenant or is staying as an overnight guest. He
may also enjoy privacy in his owned vehicle, not as a passenger though. However, his privacy will
not extend to areas that are open to the public. For example, his bank accounts, handwriting or voice
samples, paint on his car are open to the public where he cannot assert standing. This also includes
open areas which he owns that are visible to helicopters, and garbage collection and buildings outside
of his curtilage under the ‘open fields doctrine’. His lack of privacy further extends to his luggage if
subject to dog-sniffing searches. However, he may enjoy privacy over areas within his own curtilage
which cannot be subject to dog-sniffing searches, dog-sniffing searches of his car’s interior where he
is being held by the police longer than the normal time for ticket-issuing (not lawfully stopped car’s
exterior), or squeezing luggage. Also, a criminal fugitive in a foreign jurisdiction cannot argue that
he is subject to privacy, nor searches conducted by police using sense-enhanced technology that is
generally accessible to the public. Lastly, the police must have obtained a warrant in order to search
the person or seize his items. A warrant requires probable cause (new evidence, not old stale evidence)
to believe that the fruits of a crime committed by the person is likely to be found upon a search or
seizure, and an affidavit including such explanations must be submitted to the magistrates. Ultimately,
a warrant will be issued to the police who must then knock and announce their purpose for entering
a person’s dwelling under the ‘knock and announce’ rule, unless it is too futile or dangerous for them
to do so because the evidence to be searched may likely disappear or be destroyed, or the persons
named in the warrant may be dangerous. Once the police have entered a person’s dwelling, they may
search only persons named in the warrant, but seize any contraband or fruits of any other crime that
they discover in the house whether or not named in the warrant. Thus the scope of seizure is broader
than the scope of a search. An arrest warrant is limited to the arrestee’s home. Whereas a search
warrant is open to the arrestee and third parties’ homes. Even after arresting the defendant pursuant
to the warrant, the police may conduct a protective sweep of his home to search for other suspects
hiding. If they have no reasonable suspicion, they may only search immediately adjacent areas. If
, they have reasonable suspicion, they may search non-immediately adjacent areas where they are only
reasonably likely to find a suspect hiding only (cursory visual inspection).
Police may conduct wiretapping only with a warrant. They must provide an affidavit with the court
explaining the particulars of the conversation with the alleged individual that they wish to record, as
well as identifying that individual, and that they will terminate the wiretapping once they have
obtained the necessary information.
A warrant is not always required to conduct a search or seizure under the Fourth Amendment,
particularly where a person’s vehicle is involved. For example, police may carry out a warrantless
search incident to a person’s arrest if they had probable cause to believe the person committed a crime
for which they have arrested him. Once arrested, they must conduct the search contemporaneously,
in the exact same location and same time as the arrest has been made. The scope of such a search is
generally limited to the arrestee and his wingspan in the car where he would be likely to reach and
grab the fruit of a crime. The search may also extend to the interior of his vehicle and his passenger
compartment (not glove compartment). However, it may only be conducted for the purpose for which
the arrestee was arrested to locate the item of the crime he committed, or where the arrestee is
unsecured and may reach for the item in the compartment. The police can also conduct a search in
the compartment without arresting the person where they have reasonable suspicion that it may
contain a dangerous weapon if they carry out a terry frisk believing that the person is dangerously
armed. Thus, the search of a compartment would be limited to weapons only, but it will not require
an arrest nor probable cause.
Following the arrest, the police can still search the interior of the car at a separate location
usually at the police station once they have impounded the vehicle. However, it must be subject to a
search that is part of a typical routine inspection by the police.
They may also search a person’s personal belongings to find any dangerous weapons as
inventory before he is sentenced to prison.
Under the automobile exception, the police may search a person’s entire vehicle without arresting
him nor obtaining a warrant, only if they have probable cause to believe that he has committed a
crime and will likely discover items or fruits of that crime. This means that the police can seize items
of any other crimes that they find in the car including the glove compartment, in which an automobile
search can further expose the person to arrest for other crimes. They may also search any closed
containers in the vehicle. However, this is only limited to the crime for which the police have probable
cause to believe he has committed. For example, police cannot search a closed container believing
that it will contain a large gun if they arrested the person for possessing dangerous weapons. However,
searching the container for drugs will be lawful if they have probable cause the defendant is in
possession of substances.
However, probable cause is not always required to search a person’s vehicle where special
law enforcement needs automatically require a search to be conducted. This is limited, however, to
searches conducted on articulable and neutral bases whereby the search may relate to the mobility of
the vehicle, rather than random searches to determine any crimes committed by the individual. A
valid search may include testing for drink driving, entering the state as an undocumented alien or
traffic violations, but never for carrying illegal drugs.
Police can seize items of a crime from a person that they witness in plain view without a warrant.
This is only permitted if the police had legitimate grounds to be present in the area where they seized
such items, it must have been immediately apparent and they must have had probable cause to believe
that such items were fruits of a crime committed by the person.
