Criminal Procedure – 4th Amendment Analysis for Searches and Seizures of Persons and Evidence

A Helpful Flowchart to Avoid MEE and MBE Mistakes!

The principles and surrounding law pertaining to the 4^th Amendment are some of the most heavily tested rules of Crim Pro on the exam. The below flowchart provides an easy way for us to memorize whether a government agent’s seizure of a person was lawful or not and then whether a search and seizure of evidence would be deemed lawful or not. Underneath this chart, I provide the same information in text format for those who prefer the rules presented in this fashion.

• · Did a government agent seize a person? Yes?

  • For a Terry Stop and Frisk?

    • With reasonable suspicion? Stop is Lawful.

    • With NO reasonable suspicion? Stop is Unlawful.

  • For an Arrest?

    • With probable cause? Stop is Lawful.

    • With NO probable cause? Stop is Unlawful.

• For a Government Search and Seizure of Evidence:

  • Was the search performed by a government agent?

    • No? NO 4^th Amendment Issue!

    • Yes?

      • Did the search violate the defendant’s reasonable expectation of privacy?

        • No? NO 4^th Amendment Issue!

          • NOTE – A reasonable expectation of privacy does NOT apply to items of known exposure to third parties including:

            • Paint scrapings on a car;

            • Account records held by a bank;

            • Airspace (anything that can be seen while publicly and legally flying overhead);

            • Garbage left outside one’s home;

            • The sound of one’s voice;

            • Odors emanating from car or luggage;

            • The style of one’s handwriting;

            • Open fields.

          • Yes? Did the Government have a valid search warrant?

            • Yes? Was the execution of the warrant proper?

              • Yes? Lawful seizure.

              • No? Unlawful seizure.

            • No? Unlawful! Unless an exception applies.

              • Exceptions include:

                • Mnemonic of ESCAPIST:

                  • Exigent Circumstances;

                  • Search Incident to a Lawful Arrest;

                  • Consent;

                  • Automobile searches;

                  • Palin view;

                  • Inventory search;

                  • Special needs search;

                  • Terry Stop and Frisk.

If we can apply the flowchart contents in an instance where we are faced with an MBE question and/or an MEE issue dealing with a government search and/or seizure we will avoid some of the foolish mistakes made with these relatively easy questions.