COLLEGE OF LAW

Criminal Procedure Fall, 1993

Professor Paul G. Cassell December 15, 1993

FINAL EXAMINATION

 Instructions

 This examination begins at 8:30 a.m. It is designed to be a three-hour examination with three questions of one hour each. Each of the three questions will be given equal weight in determining the final grade. You are given an extra 30 minutes to allocate as you see fit. You must turn in your examination by noon.

 This is essentially an open book examination. You may have the following materials with you: your textbook, your textbook supplement, any materials distributed during the course, any outline that you may have prepared by yourself or with other students. You may not have the following materials: any commercial publications, hornbooks, or the like.

 In accordance with standard law school procedure, do not write your name anywhere on your exam or any other information that could be used to identify you. Write your exam number on your exam. This permits evaluation without knowledge of the exam-taker's identity. If possible, please do not write in pencil (it is difficult to read).

 If you think that you need more facts for any question, identify the facts you need and state how they would affect your answer.

 This examination consists of five pages (including the cover page). Please make sure you have all pages.

QUESTION I (one hour)

 On Thanksgiving day, 1993, Officer Francine Fife was monitoring traffic on I-15 south of Provo. She usually pulled over only cars that were going more than 75 miles per hour. But because "business" was slow on that day, she decided to pull over all vehicles that were travelling more than 70 miles per hour. (The speed limit was 65 miles per hour.)

 The first car that she pulled over was a mobile home driven by Doug Driver, who was travelling 73 miles per hour according to Fife's radar. Driver produced a valid driver's license and registration for his vehicle. Officer Fife returned to her patrol car and verified that the license and registration were valid. Officer Fife then went back to the mobile home and returned the driver's license and registration.

 Officer Fife then handed to Driver a citation for speeding driving. As a normal part of the ticket process, the driver must sign the citation. While Driver was signing the citation, Officer Fife asked the Driver whether he had any guns or drugs in the car. Driver said that he did not. Officer Fife then asked "Mind if I look around?" What happened next is disputed. According to Fife, Driver said, "It's up to you" and then returned the citation. According to Driver, he first returned the citation and then said, "I think we're through."

 At this point, Fife entered the mobile home and, crawling around on the floor saw the outlines of what appeared to be a false compartment under a lounge chair immediately behind the drivers seat. It is undisputed that at this point Driver became worried and said, "I never said you could look in here." Fife ignored Driver's statement and lifted up the chair and the floorboards underneath it. There Fife saw a stack of obviously counterfeit twenty dollar bills.

 Officer Fife then placed Driver under arrest. Fife saw a small suspicious lump in the jacket Driver was wearing. She reached into the jacket and pulled out a small amount of crack cocaine. Fife also searched the rest of the mobile home, discovering printing materials that appeared to be associated with the production of counterfeit bills. She also searched the spare tire attached to the back of the mobile home, discovering some additional incriminating printing inks there.

 Driver is charged with various criminal offenses relating to production of counterfeit money and possession of illegal cocaine. Milton Mastermind has also been charged. He is the owner of the mobile home. At trial, the prosecutor wishes to introduce evidence pertaining to all of the circumstances surrounding the stop of the mobile home and the eventual discovery of counterfeit bills, printing materials, and printing inks. The attorneys for Driver and Mastermind have each filed motions to suppress all of this evidence. At the suppression hearing, Driver testified that he is extraordinarily afraid of law enforcement officers and is intimidated whenever he sees one. At the suppression hearing, Mastermind testified that he was kidnapped in Arizona by Utah police officers and forcibly brought to Utah completely outside any legal process.

 Discuss the issues of criminal procedure that arise under the United States Constitution and the Utah Constitution.

QUESTION II (one hour)

 On September 1, 1993, Deputy Dobbs was involved in a fast moving investigation of a kidnapping. The prime suspect was Sam Suspect, who had been in trouble with the law before. In fact, on August 15 an attorney, Laura Lawyer, was appointed to represent Suspect on pending robbery charges.

 On September 1, as part of the kidnapping investigation, Dobbs monitored the payment of ransom money by Bob Briggs, the kidnap victim's brother, to Sam Suspect in a shopping center parking lot in Ogden. As Dobbs surveilled the payment from his car, Suspect and Briggs met. Briggs wore a concealed transmitting device. Suspect said, "I've got Valerie; where's the money." As Briggs began to hand over the money, Suspect became suspicious and started to leave. Briggs then jumped Suspect and began to beat him. Suspect said, "Stop. I'll tell you where she is." Suspect, however, said nothing until Dobbs arrived and gave Suspect a menacing stare while fingering his nightstick. Suspect then said, "She is at my house at 101 Pleasant View Drive in Ogden." Dobbs quickly went to that address in Ogden, and found the victim, Valerie Briggs, there alive. She was tied up, but with just a few more minutes might have been able to free herself and escape to the nearby police station.

 After taking Ms. Briggs home, Dobbs returned to the stationhouse and wrote out an application for a search warrant to search "202 Pleasant View Drive." The affidavit accurately recounted all of the information that Dobbs knew about the kidnapping and Ms. Briggs' rescue. The magistrate signed the search warrant and supporting affidavit. Dobbs then returned to 101 Pleasant View Drive. At the house he found what were clearly stolen goods involved in the robbery charges pending against Suspect.

 Meanwhile, other officers from the force took Suspect to the stationhouse. There the officers read him the four standard Miranda warnings. In response to questions from the officers, Suspect said that he understood his rights and would like to waive them. Suspect then admitted that he had some knowledge of the kidnapping but said, "Gee, maybe I need a lawyer." The officers then said, "We can get you a lawyer if that is what you want." Suspect then said, "Why bother ...." and admitted his involvement in the kidnapping. He also said that as soon as he got the money from Bob Briggs, he planned to return to kill his victim quickly and escape to Mexico. Finally, in response to specific questions concerning robberies, Suspect confessed that he was guilty of the pending robbery charges.

 In the subsequent kidnapping prosecution, the prosecution plans to introduce Suspect's statement "I've got Valerie" and the other statements made in the parking lot after the beating. It also plans to introduce all of Suspect's statements taken at the stationhouse. Finally, it plans to call Valerie Briggs as a witness to explain how she was kidnapped by Suspect. Suspect's attorney has filed a motion to suppress all of this evidence.

 In the subsequent robbery prosecution, the prosecution plans to introduce Suspect's confession to the robbery charges and the stolen good founds at Pleasant View Drive, prompting a suppression motion from Laura Lawyer.

 Meanwhile Valerie Briggs has demanded that the prosecution keep her informed of all subsequent proceedings in the kidnapping case.

Discuss the issues of criminal procedure that arise under the United States Constitution and the Utah Constitution.

QUESTION III (one hour)

 At noon on June 6, 1993, Sheriff Steve Starr of the Sevier County Sheriff's Office decided to stop a Cadillac for weaving wildly in and out of its lane on an interstate highway. Starr then activated his flashing lights and dashboard video camera, which captured all of the following events that happened in the Cadillac.

As the Cadillac pulled over to the side of the road in response to Starr's flashing lights, Starr noticed that the passenger in the car, Fred Friend, threw a small object wrapped in paper out of the window. As he approached the car, Starr noticed that the eyes of the driver, Donna Druggie, were bloodshot in a peculiar way that, based on his training and experience, he associated with the use of illegal drugs.  

Sheriff Starr then ran Druggie's license and registration and found nothing amiss. He returned to the car and issued a citation to Druggie for speeding and to Friend for littering. After the citation process was completed, Starr asked Friend, "What was in the paper you threw out of the car?" Friend then became visibly nervous and said, "Why do you ask? It was nothing at all." Starr asked the two to remain where they were. He then spent about thirty minutes searching the side of the highway, finally discovering a piece of paper that looked something like the paper discarded by Friend.

 Starr returned to the car and tried to bluff the occupants. "I just found your marijuana stash in here," he said, waving the paper around. Starr continued: "You had better tell me what you're up to." At that point, Druggie said, "That's a lie. It was heroin in the paper." Starr then said, "Thanks for the help" and continued searching by the side of the road. Five minutes later he found the paper discarded by Friend. Inside of the paper was a small amount of heroin.

 Starr returned to the car and placed both Druggie and Friend under arrest. At the stationhouse, he conducted a more thorough search of Druggie and Friend, discovering a marijuana cigarette on each of them concealed in their clothing. He also conducted a routine inventory search of Cadillac pursuant to a written policy of the Sevier County Sheriff's Office. In the trunk, he found a kilo of cocaine in a suitcase which had Druggie's name on it.

 Later Starr learned that the Cadillac was stolen on June 5th by a person or persons unknown.

 Druggie and Friend have been charged with misdemeanors for possessing the marijuana cigarettes and the heroin. Druggie has also been charged with felony possession of the kilo of cocaine with the intent to distribute. The prosecution plans to introduce all of the evidence and statements relating to the events described above. Druggie and Friend have moved to suppress everything. They have also sought the appointment of lawyers and expert chemists (to analyze the marijuana and heroin) to assist in their defenses.

Discuss the issues of criminal procedure that arise under the United States Constitution and the Utah Constitution.