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
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
