SAMPLE ANSWERS TO THE FINAL EXAM

Fall, 1992

Professor Paul G. Cassell

The following is not intended to be a "sample answer" in the sense of representing what a good bluebook would look like. Instead, it is designed to highlight the main issues that I was looking for and some thoughts on their possible resolution.

Question I

The initial contact between the Office Ochoa and Sam Suspect (5 points possible). Would seem to be a "casual police citizen encounter." The entry into the house would appear to be consensual. Sam does not appear to be in custody, therefore there is no need for Miranda warnings. Does Sam have apparent authority to authorize entry into the home of a friend?

The diapers may be in plain view, but is their incriminating nature immediately apparent in the same way that, say, it is apparent for contraband. However, does Sam have standing to challenge a search in the friend's house. It may also be trash, but probably not covered by California v. Greenwood because the trash has not been taken from the house (5 points).

Is Sam in custody on the way to the stationhouse (4 points)? Good arguments can be made both way. See the "custody" cases in the textbook, especially California v. Beheler.

Miranda warnings (7 points). Four standard Miranda warnings are o.k. (no requirement of a fifth warning). However, Office Ochoa has neglected to insure that Sam understands the warnings and to obtain a valid waiver. All statements accordingly appear to be suppressible under Miranda if Sam is in custody. The statement concerning a lawyer looks a lot like the Duckworth case and the videotape from class.

Lawyer arriving at stationhouse (8 points). Lying to the lawyer appears to be covered by Moran v. Burbine. Lying to the suspect is not directly covered by the case and may pose more difficult issues. The fingerprints lie is probably acceptable.

Other interrogation issues (6 points). The mental health promise may be coercive. See Miller v. Fenton and related class discussion. Information obtained through coercion is suppressible as the fruit of the poisonous tree. Sam has may have invoked his right to remain silent.

The confrontation with the parents raises, among other issues, an Arizona v. Mauro interrogation question. Recall that Mauro says the ploy was not interrogation! (3 points)

The search of the home may be justifiable under a notion of exigent circumstances and perhaps the "rescue doctrine." (4 points).

The testimony about the limp is not suppressible under the 5th Amendment because it not communicative testimony. Pennsylvania v. Muniz. (3 points).

Other issues (5 points). For example, can the prosecution argue that the video camera is an adequate substitute for any Miranda deficiency?

Question III

[Note: this problem may be considerable more difficult for students who were not in my Fall, 1992 Criminal Procedure course. One of the assigned readings for that course was the note by Christian Rowley in the 1992 Utah Law Review at p. 601 concerning Florida v. Bostick.]

The roadblock (18 points). This is a seizure. See Prouse. I would expect to see Sitz and Simms cited and discussed in the course of the answer. Critical factors to examine here include the nature of the state's interest, whether discretion of the officer has really been minimized, has the roadblock been approved by politically accountable officials (important under Simms), and whether the stop is minimally intrusive. There is also a question about the consistency of the whole roadblock with the Larocco plurality opinion. Note that if the stop is bad, everything else is likely suppressible as the fruit of the poisonous tree. Doper will have standing to challenge the stop. Can the prosecution make an argument based on Krull that they acted in good faith reliance upon a statute?

The approach to Donna Doper (32 points -- broken down on my score sheet into various subissues). This looks a lot like Bostick -- although a critical difference may be that the officers have seized the bus, while in Bostick is was stopped on its ordinary route. The smell of marijuana would certainly give rise to reasonable articulable suspicion if the smell came from Doper specifically. (Is it fishy that only cocaine was found in the purse; but a marijuana cigarette was later discovered.) The free-to-leave statement goes to the voluntariness of subsequent actions. But does it make sense to talk about "free to leave" in the middle of the southern Utah desert?

What happens next is disputed. Since the issues pertain to a warrantless search, the burden is on the state to prove its version of the facts. If Sangelnom is believed, the smell of marijuana will provide p.c. for a search. However, it is not clear that p.c. would justify opening the purse without a warrant. Sangelnom might, however, have p.c. for an arrest and then the purse would be in the grabbing area (does he have to formally arrest her to take advantage of this argument?).

Does a bus fit the vehicle exception to the Fourth Amendment? Good arguments can be made on both sides. If so, p.c. means p.c. to search most everywhere in the vehicle without a warrant until the drugs are found.

Following the arrest, Sangelnom has the right to search Doper's person. Accordingly, whether something was "suspicious" or not is irrelevant. Note, however, that if the arrest is invalid, Sangelnom might be able to use the suspicion to justify some kind of Terry frisk. But the suspicion would probably need to relate to a weapon.

The suitcase is probably analogous to Chadwick, as discussed in Acevedo. However, if the bus fits the vehicle exception to the Fourth Amendment, you can argue that the suitcase is just a container in a vehicle. Note that on this line of argument, it may be significant that the suitcase is in a separate storage compartment. What did Sangelnom expect to find there and did he have p.c. to search the suitcase?

Donna has standing to challenge the searches but Friend probably does not. Note: some students went off on a side issue here. The fact that the state has a very weak case on the merits against Friend is not relevant to the issue of whether the searches are constitutional.