Search/Seizure

This section was compiled, organized and written by Greg Rapkoch, in collaboration with Alex Bassos.

 Search and Seizure Checklist

A.  Was there an infringement upon a privacy  or possessory interest?

• Privacy—Was there an infringement of informational privacy (search)?
• Possessory—Was there a significant interference with control, direction or disposition (seizure)?
• Abandonment—Did your client intend to forego the exercise of his constitutional interests?
• Third Party Access—Did a third party affect the privacy or possessory interest?

B.  Was there a warrant?

• Search Warrants
• Arrest Warrants

C.  Was there a seizure and, if so, was it justified?

• “Free to Leave” vs. “Stop”—Did the officer interfere with your client’s freedom of movement?
• Reasonable Suspicion—Was the officer’s investigatory stop supported by articulable facts indicating criminal activity?

.                            ●  General Principles

.                            ●  Crime-Specific Cases

• Patdowns—Did the officer have a reasonable, articulable suspicion of an immediate threat of serious physical injury?
• Extension—Did the police extend the duration of a lawful stop beyond that necessary to accomplish its purpose?
• Exploitation/Attenuation—Was the evidence discovered because the police exploited a bad stop, or was there a lawful intervening cause?
• Probable Cause/Search and Arrest—Was your client under actual or constructive constraint, or taken into custody, pursuant to probable cause to believe a crime had been committed and/or evidence of a crime would be uncovered?

D.  Was there consent for the search?

• Voluntariness—Was consent given and, if so, was it an act of free will or did it result from police coercion, either express or implied?
• Exploitation/Attenuation—Was the consent a product of unconstitutional police conduct? Or was the consent attenuated from such conduct?
• Third Party Consent—If consent was given by a 3rd party, did that person have authority to give consent?
• Scope of Consent—Did the investigating officer exceed the objective scope of the consent given?

E.  Was there an exception to the warrant requirement?

• Emergency Aid—Was the officer’s search motivated by a good-faith and reasonable belief that a threat to human safety existed and that the intrusion would serve to alleviate that threat?
• Exigent Circumstances—Did the police have probable cause and face circumstances that required them to act swiftly to prevent serious violence, escape or the destruction of evidence?
• Inventory—Was the exercise of custody lawful, and did officers thereafter follow a narrowly tailored policy promulgated by a politically accountable agency that served to limit officer discretion?
• Officer Safety—Did an an officer’s lawful encounter with a citizen give rise to a reasonable suspicion that the citizen poses an immediate threat of serious physical injury to the officer or others?
• Search Incident to Arrest—Were the actions reasonably calculated in time, place and scope to protect officer safety, prevent the destruction of evidence, or discover evidence relevant to the arrest?

F.  Is there an exception to the remedy of suppression?

• Exploitation/Attenuation—Was the consent a product of unconstitutional police conduct? Or was the consent attenuated from such conduct?
• Inevitable Discovery—Would proper and predictable investigatory procedures  have been used, and would those procedures have inevitably resulted in the discovery of the evidence in question?

G. Can you Federalize the motion?

• Federal Search and Seizure Resources

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