Analyzing a Search and Filing a Motion to Suppress: A Practical Checklist

Criminal > Search and Seizure | Published 26 March 2024 - Updated 14 March 2025 | UpLaw - uplaw.us

⚠ Send the preservation letter this week. ⭐ Body-worn camera footage and dispatch timestamps decide most ordinary suppression motions, and both are overwritten on a schedule measured in weeks.

Use with Search and Seizure: A Comprehensive Guide to Warrants, Exceptions, Standing, and Suppression and The Search, Seizure, and Suppression Toolkit.

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Phase 1 — Immediate preservation

☐ ⭐ Send a preservation letter at or before arraignment to the agency, the prosecutor, and any third-party custodian. ☐ Demand specifically:

• ☐ ⭐ Body-worn camera footage from every officer present, including pre-event buffer and post-event recording
• ☐ Dashboard and in-car camera footage
• ☐ Fixed camera footage — station, sally port, municipal cameras facing the location
• ☐ ⭐ Dispatch audio, radio traffic, and computer-aided dispatch entries WITH TIMESTAMPS
• ☐ Automated license plate reader records
• ☐ Canine deployment records and the dog's training, certification, and field performance history
• ☐ All officer notes, including field notes not incorporated into the report
• ☐ Any recorded consent exchange
• ☐ Metadata for every recording ☐ ⚠ Ask the agency to confirm preservation in writing, and to state the retention period. ☐ Send letters directly to third parties — a business, a residence, a transit agency — and follow up in person. See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist. ☐ Move for a court order where an agency delays. ⭐ An unanswered letter followed by a destroyed recording supports sanctions. ☐ ⚠ Have the client write down the times — when the citation was handed over, when a second unit arrived, when the dog arrived, when they were told they could leave.

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Phase 2 — Question one: was there a search or seizure?

☐ When did the encounter become a seizure? ⭐ A consensual encounter is not a seizure; the question is whether a reasonable person would feel free to leave or terminate. ☐ Was the client a passenger? ⭐ A traffic stop seizes everyone — Brendlin v. California, 551 U.S. 249. ☐ Was there a physical trespass on a constitutionally protected area? — United States v. Jones, 565 U.S. 400. ☐ Was the curtilage entered? — Florida v. Jardines, 569 U.S. 1. ☐ Was a reasonable expectation of privacy invaded? — Katz v. United States, 389 U.S. 347. ☐ Was sense-enhancing technology used on a home? — Kyllo v. United States, 533 U.S. 27. ☐ Was digital data obtained from a third party? — ⭐ Carpenter v. United States, 585 U.S. 296, and the statutory process at 18 U.S.C. § 2703. ☐ ⚠ Was it a dog sniff of a lawfully stopped vehicle? ⭐ Not itself a search — Illinois v. Caballes, 543 U.S. 405 — so move directly to duration.

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Phase 3 — Question two: was it justified?

The stop ☐ Was there reasonable suspicion, articulated with specific facts? — Terry v. Ohio, 392 U.S. 1 ☐ Or probable cause of a traffic violation? ⚠ Motive is irrelevant — Whren v. United States, 517 U.S. 806 ☐ Was flight relied on, and in what context? — Illinois v. Wardlow, 528 U.S. 119

⭐ Duration — the highest-yield issue in ordinary cases ☐ When did the stop begin? ☐ When was the mission complete — citation written, records check returned? ☐ ⭐ What happened after that, and what justified it? ☐ ⚠ Was the stop extended even briefly for a dog, a second unit, or additional questioning, without independent reasonable suspicion? — Rodriguez v. United States ☐ Build a minute-by-minute timeline from the dispatch log and the camera timestamps.

Consent ☐ What exactly was asked, and in what words? ☐ Was voluntariness established? — Schneckloth v. Bustamonte, 412 U.S. 218. ⚠ The government bears the burden. ☐ How many officers, were weapons displayed, was the client restrained? ☐ Was a refusal overridden, or the request repeated? ☐ Was the client told they could refuse? ⚠ Not required, but relevant. ☐ Did the consenting person have actual or apparent authority? — Illinois v. Rodriguez, 497 U.S. 177 ☐ ⭐ Was a physically present occupant expressly objecting? — Georgia v. Randolph, 547 U.S. 103 ☐ Did the search stay within the scope consented to? ☐ ⚠ Was consent obtained after an unlawful seizure? ⭐ If so, argue taint before arguing voluntariness.

The frisk ☐ ⚠ Was there a SEPARATE basis to believe the person was armed and dangerous? ☐ Did the officer exceed a pat-down of outer clothing? ☐ Was an object manipulated to determine what it was?

The vehicle ☐ Probable cause under Carroll v. United States, 267 U.S. 132? And did the scope match the object sought? ☐ ⭐ Incident to arrest — does Arizona v. Gant, 556 U.S. 332, permit it? Unsecured and reachable, or reason to believe evidence of the offense of arrest is inside? ☐ Inventory — is there a written policy, was it produced, and was it followed? ⚠ Was the purpose investigatory? ☐ ⚠ Was the vehicle on the curtilage of a home? — Collins v. Virginia, 584 U.S. 586

The home ☐ Warrant, consent, or exigency — which is claimed? ☐ Emergency aid? — Brigham City v. Stuart, 547 U.S. 398 ☐ Police-created exigency? — Kentucky v. King, 563 U.S. 452 ☐ ⚠ Misdemeanor pursuit? — Lange v. California, 594 U.S. 295 ☐ ⚠ Community caretaking asserted? — Caniglia v. Strom, 593 U.S. 194 ☐ Scope of a search incident to arrest inside a home — Chimel v. California, 395 U.S. 752 ☐ Detention of occupants beyond the immediate vicinity — Bailey v. United States, 568 U.S. 186

Digital ☐ ⭐ Was a phone searched, and was there a warrant? — Riley v. California ☐ What did the warrant authorize, and was the forensic review limited by date, file type, or protocol? ☐ Was unrelated material seized in plain view during the review? ☐ Was location data obtained, and by what process? ☐ Was a wiretap involved, and was necessity established? — 18 U.S.C. § 2518 ☐ Was notice delayed? — 18 U.S.C. § 3103a

Special needs ☐ Checkpoint — what was the programmatic purpose? ⭐ Michigan Dep't of State Police v. Sitz, 496 U.S. 444, versus ⚠ City of Indianapolis v. Edmond, 531 U.S. 32. Obtain the operational plan. ☐ ⚠ Probation or parole conditions — read them.

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Phase 4 — Question three: standing

⚠ Resolve this before drafting anything else. ⭐ It defeats more motions than any substantive doctrine.

☐ What was the client's connection to the place or item searched? ☐ Overnight guest? ⭐ Yes — Minnesota v. Carter, 525 U.S. 83, distinguishing a brief commercial visitor. ☐ Driver in lawful possession of a rental car, unlisted? ⭐ Yes — Byrd v. United States, 584 U.S. 395. ☐ Passenger challenging the stop? ⭐ Yes — Brendlin v. California, 551 U.S. 249. ☐ ⚠ Passenger challenging a search of the glove box or under the seat? Generally no — Rakas v. Illinois, 439 U.S. 128. ☐ ⚠ Did the client disclaim ownership or abandon the item? That forfeits it. ☐ How will standing be established? Affidavit, proffer, or testimony. ☐ ⭐ Confirm that testimony given to establish standing is not admissible in the case in chief in this jurisdiction, and advise the client accordingly.

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Phase 5 — Warrant challenges

☐ Obtain the warrant, the affidavit, the application, and the return. ☐ Particularity — does the warrant confine the executing officer's discretion as to place and items? ☐ Probable cause on the four corners — Illinois v. Gates, 462 U.S. 213, totality of the circumstances. ☐ Staleness — how old was the information relative to the nature of the evidence? ☐ Nexus — does the affidavit connect the evidence to THIS place? ☐ Informant reliability, basis of knowledge, and corroboration. ☐ Execution — timing, scope, and the return. Fed. R. Crim. P. 41 in federal court. ☐ Detention of persons during execution — Bailey v. United States, 568 U.S. 186. ☐ ⚠ Knock and announce violations do not require suppression — Hudson v. Michigan, 547 U.S. 586.

The Franks challenge — Franks v. Delaware, 438 U.S. 154 ☐ ⭐ Identify the specific false statement or material omission. ☐ Show it was made knowingly and intentionally, or with reckless disregard for the truth. ☐ ⭐ Show it was NECESSARY to the finding of probable cause — excise it and demonstrate what remains is insufficient. ☐ ⚠ Make a SUBSTANTIAL preliminary showing, with an offer of proof — affidavits, records, or witness statements. Conclusory allegations draw no hearing. ☐ ⭐ This is frequently the only route around good faith, because United States v. Leon, 468 U.S. 897, does not protect an affiant who misled the magistrate.

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Phase 6 — Question four: is there a remedy?

⚠ Answer this before promising anything to a client.

☐ Good faith reliance on a warrant? — United States v. Leon, 468 U.S. 897. ⭐ Exceptions: the affiant misled, the magistrate abandoned neutrality, the affidavit was bare bones, or the warrant was facially deficient. ☐ Isolated negligence rather than systemic error? — Herring v. United States, 555 U.S. 135. ☐ Reliance on then-binding precedent? — Davis v. United States, 564 U.S. 229. ☐ ⚠ An outstanding warrant discovered during the unlawful stop? — Utah v. Strieff, 579 U.S. 232. ⭐ Attack it on the flagrancy factor. ☐ Independent source or inevitable discovery? — Nix v. Williams, 467 U.S. 431. ☐ Derivative evidence — is it fruit? — Wong Sun v. United States, 371 U.S. 471. ☐ Attenuation factors: temporal proximity · intervening circumstances · ⭐ the purpose and flagrancy of the misconduct, which is where the argument lives. ☐ ⚠ Does the applicable statute provide its own remedy and exclude suppression? ⭐ Read the remedial provision. ☐ If suppression is unavailable, identify the alternatives — a civil action, an administrative complaint, or a sentencing argument — ⭐ and tell the client which.

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Phase 7 — Discovery

☐ All reports, including supplemental and corrected versions ☐ ⭐ All camera footage, with metadata ☐ ⭐ Dispatch logs, radio traffic, and CAD entries with timestamps ☐ The warrant, affidavit, application, and return ☐ Canine training, certification, and field performance records ☐ The written inventory policy ☐ The checkpoint operational plan ☐ Any consent form or recording ☐ Officer training records and prior suppression testimony ☐ Informant history, subject to disclosure limits ☐ Any forensic extraction report for a device, and the tool's parameters

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Phase 8 — The motion and the hearing

☐ ⚠ File on time. Fed. R. Crim. P. 12 and state analogues, ⭐ and calendar it at arraignment. ☐ Plead specific facts, not doctrine. ☐ State the burden posture explicitly — ⭐ warrantless search: the government justifies; with a warrant: the defendant invalidates. ☐ Establish standing in the motion itself. ☐ Request an evidentiary hearing and identify the disputed facts. ☐ ⭐ Prepare the timeline as an exhibit. ⚠ In a duration case, the cross-examination is a clock exercise. ☐ Pin the officer to the sequence before playing the recording. ☐ Separate the stop justification from the frisk justification. ☐ Address good faith and attenuation affirmatively, not in reply. ☐ Preserve every issue, including those currently foreclosed.

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Common mistakes

⚠ Not sending the preservation letter, and losing the footage. ⚠ Arguing the merits without establishing standing. ⚠ Missing the filing deadline. ⚠ Pleading doctrine instead of facts. ⚠ Ignoring duration and litigating only the initial stop. ⚠ Treating a Franks allegation as sufficient without an offer of proof. ⚠ Failing to obtain the canine records or the inventory policy. ⚠ Overlooking probation conditions that authorized the search. ⚠ Promising suppression before assessing good faith and attenuation. ⚠ Failing to advise the client about roadside conduct going forward.

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The timeline worksheet

⭐ Build this before drafting. In an ordinary case it is the motion.

Time	Event	Source	⚠ Note
	Stop initiated	Dispatch log / body camera
	First contact with driver	Body camera
	Documents collected	Body camera
	Records check requested	Dispatch / CAD
	Records check returned	Dispatch / CAD
	⭐ Citation or warning complete	Body camera	The mission ends here
	Documents returned	Body camera	⭐ Or not returned — that matters
	Consent requested	Body camera	Exact words
	Consent given or refused	Body camera
	Second unit requested	Dispatch
	Second unit arrived	Dispatch
	Canine requested	Dispatch
	⭐ Canine arrived	Dispatch / body camera	⚠ Compare to the mission-complete time
	Alert	Body camera
	Search began	Body camera
	Item located	Body camera
	Arrest	Body camera

⭐ Every minute between "citation complete" and "search began" needs a justification. ⚠ If none exists, that is the motion.

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Analytical worksheet

Question	Answer	Authority	Strength
Was there a seizure, and when?		Brendlin, 551 U.S. 249
Was there a search?		Katz, 389 U.S. 347; Jones, 565 U.S. 400
Basis for the stop?		Terry, 392 U.S. 1; Whren, 517 U.S. 806
⭐ Was the stop prolonged?		Rodriguez; Caballes, 543 U.S. 405
Was the frisk separately justified?		Terry, 392 U.S. 1
Consent — voluntary? authority? scope?		Schneckloth, 412 U.S. 218; Rodriguez, 497 U.S. 177; Randolph, 547 U.S. 103
Vehicle — probable cause or Gant?		Carroll, 267 U.S. 132; Gant, 556 U.S. 332
Home — which exception?		Brigham City, 547 U.S. 398; Lange, 594 U.S. 295; Caniglia, 593 U.S. 194
Digital — warrant and scope?		Riley; Carpenter, 585 U.S. 296
⭐ Standing?		Rakas, 439 U.S. 128; Carter, 525 U.S. 83; Byrd, 584 U.S. 395
⚠ Remedy after every exception?		Leon, 468 U.S. 897; Herring, 555 U.S. 135; Strieff, 579 U.S. 232

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Client counseling, going forward

⭐ Five minutes at the end of the representation, and worth more to most clients than the motion.

☐ Give them three sentences: "I do not consent to any searches." · "Am I free to leave?" · "I am going to remain silent. I want a lawyer." ☐ Explain that declining consent is not evidence and cannot be used against them. ☐ ⚠ Explain that physical resistance is never the answer. ☐ ⭐ Explain the phone — a warrant is required for its contents, and unlocking it on request gives that away. ☐ ⚠ Explain any probation or parole conditions that authorize searches, plainly. ☐ Tell them to write down the times immediately afterward. ☐ ⭐ Explain honestly what suppression can and cannot achieve, so the next decision they make is informed.

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Scenario supplements

The traffic stop that became a search

☐ Get the dispatch log first. ⭐ It is timestamped, contemporaneous, and not written by the officer for litigation. ☐ Compare the citation's printed time to the search's start time. ☐ Identify every event between them and demand a justification for each. ☐ ⚠ Watch for documents not returned — an officer who keeps a license has not ended the seizure. ☐ Check whether the consent request came before or after the mission concluded. ☐ Obtain the canine's field performance records, not just certification.

The home entry

☐ Which exception is claimed, and when was it first articulated — at the scene, in the report, or at the hearing? ☐ ⭐ What did the officers see or hear before entering? ☐ Was the entry preceded by a knock, and what was said? ☐ ⚠ Was the "exigency" created by the officers' own conduct? — Kentucky v. King, 563 U.S. 452 ☐ Was the offense a misdemeanor? — Lange v. California, 594 U.S. 295 ☐ Was the curtilage entered before any exception applied? — Florida v. Jardines, 569 U.S. 1; Collins v. Virginia, 584 U.S. 586 ☐ Who else was present, and did anyone object?

The device

☐ Was the phone seized, searched, or both — and when? ☐ What did the warrant authorize, and how was the forensic review scoped? ☐ ⭐ Request the extraction report and the tool's parameters — date ranges, file types, and keyword lists. ☐ Was unrelated material reviewed or seized? ☐ Was the passcode or biometric compelled? ⭐ Preserve the issue; it is unsettled. ☐ Was location data obtained, and under what process — 18 U.S.C. § 2703? ☐ If a geofence or keyword warrant was used, attack particularity and probable cause — ⭐ it begins without a suspect, which is the argument. See The Data Privacy and Breach Response Toolkit for the parallel civil framework.

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The one-page version

⭐ When a new case arrives:

1. ⚠ Send the preservation letter this week. Body camera, dispatch, canine, metadata.
2. Build the timeline from the dispatch log and the footage.
3. ⭐ Find the moment the mission ended, and ask what justified everything after it.
4. Establish standing before drafting.
5. Identify the exception the government will assert, and attack its elements.
6. ⚠ Assess the remedy — good faith, attenuation, inevitable discovery — before promising anything.
7. File on time, plead facts, and request a hearing.
8. ⭐ Give the client the three sentences for next time.

⚠ Steps one and three decide most ordinary cases. ⭐ Everything else is elaboration.

For the letters, motion templates, and cross-examination outlines, see The Search, Seizure, and Suppression Toolkit; for the doctrinal treatment, Search and Seizure: A Comprehensive Guide to Warrants, Exceptions, Standing, and Suppression; and for the client-facing explanation, May I Look in the Car: What the Fourth Amendment Actually Requires. Where the same conduct also supports a civil claim, see Mental Health Treatment and Civil Commitment: A Comprehensive Guide to Standards, Hearings, and Rights for the adjacent framework governing detentions on other grounds.

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Related Documents

• Search and Seizure: A Comprehensive Guide to Warrants, Exceptions, Standing, and Suppression
• May I Look in the Car: What the Fourth Amendment Actually Requires
• The Search, Seizure, and Suppression Toolkit
• The Data You Did Not Know They Had: How Privacy Law Actually Reaches Your Information
• Data Privacy and Security: A Comprehensive Guide to Collection, Consent, Breach Response, and Enforcement
• Responding to a Data Breach and Exercising Privacy Rights: A Practical Checklist
• The Model Said No: How Automated Decisions Are Made and How They Are Challenged
• Held Against Your Will: How Civil Commitment Actually Works and What Rights Attach
• Responding to an Emergency Hold or Commitment Petition: A Practical Checklist
• Issuing a Litigation Hold and Preserving ESI: A Practical Checklist
• The Data Privacy and Breach Response Toolkit