Fall, 1993

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

Is this a pretext stop? The officer has deviated from "normal" policy, but it doesn't really seem to be the kind of deviation that Guzman condemned; but how convenient that Driver was the first stop of the day under the "new" policy. Verifying license and registration is proper. (6 points).

Under U.S. v. Torres (my supp.), asking additional questions during the normal citation process does not extend the stop and does not require justification. However there are competing versions of events. Since this is a warrantless search, the burden will be on the state. If the trial court believes the officer, this may be a valid consent search. Even if the court believes the officer, questions remain: (1) Does Friend have sufficient apparent authority to give consent? (2) Is the statement "It's up to you" really consent, especially given the burden on the state to prove consent. If the driver is believed, no consent argument is possible. Consent is the only way for the officer to lawfully enter the mobile home. (10 points).

If the officer is lawfully in the mobile home, consent eventually terminates -- but not before the officer sees the outlines of a false compartment. If you view the "false compartment" along the lines of the Mangelson cases discussed in class, a false compartment by itself gives rise to probable cause. Probable cause for search of a vehicle (even a motor home, see Carney) probably authorizes pulling up the floorboards during the subsequent search. The counterfeit bills could be seized if their incriminating nature was truly "obvious." (6 points).

Search pursuant to arrest is authorized by Robinson. Dickerson is not applicable: this is not a Terry situation. (4 points).

The lawfulness of the subsequent search of the mobile home depends on how you interpret the probable cause. Once you find counterfeit bills, does that suggest other evidence will be found elsewhere? The answer is "possibly," depending on the strength of the analogy to, say, drug cases, aided by whatever additional probable cause arises from the discovery of drugs on Driver's person. Also, apart from probable cause, Belton allows a grabbing area search (does that include the whole mobile home?). Note that the spare tire does not fall within a grabbing area. (5 points).

Standing needs to be analyzed under Rakas. Mastermind's claim stems from an ownership interest in the mobile home. The Driver clearly has standing to challenge the stop and can probably make a good case to challenge the rest of the officer's actions as well. (5 points).

The kidnapping of Mastermind, while unlawful, has no suppression consequences. Kerr-Frisbie. (2 points).

Does the subjective fear of the Driver taint consent? Compare U.S. v. Torres and Rodriguez. (2 points).

Does Larocco (plurality) have application to consent searches? Probably not. How 'bout the general vehicle search? Probably, but is the mobility of the motor home enough of an "exigency." (3 points).

Fruits analysis -- if the stop is bad, a finding of attenuation seems unlikely. (2 points).

Others. (5 points).

Question II

Transmitting the conversation is lawful. Despite the earlier appointment of counsel, the investigation of independent charges is proper under the 6th Amendment. Maine v. Moulton. Suspect can claim no invasion of privacy (see Katz), since the transmitter is only reporting a conservation Suspect is voluntarily disclosing to the kidnap victim's brother. (4 points).

"I've got Valerie" -- statement is admissible. Miranda is not implicated (no interplay of custody and authority, see Perkins). Also, it is unclear whether Briggs is vested with sufficient state authority to be considered a state actor. (4 points).

The subsequent events are more complicated. Again the state action issue looms. If Briggs is a state actor, the beating is clearly a violation of the 5th Amendment. Even if he is not, the truly incriminating statement ("she's at my house") is obtained only after Dobbs fingers his nightstick and gives a menacing stare. Contrary to the answers giving by some students, you don't need to prove a whipping to prove coercion. Particularly since Dobbs' actions follow on the heels of Briggs beating, I think this is coercion in violation of the 5th Amendment. Note: State v. Leon did not say beatings are acceptable. It only said that a later stationhouse confession might be sufficiently attenuated from the beating to be admissible by itself. The fruits of coercion are suppressible, although it is more difficult to suppress a live witness (e.g., Valerie). If you erroneously analyze this only under Miranda, the officer wins on a "public safety"/rescue theory -- but the 5th Amendment has no "public safety" exception (see Quarles). (12 points).

Would Valerie have been inevitably discovered? No speculation is allowed. (3 points).

The first, warrantless entry of the home is probably lawful in view of the exigent circumstances. (3 points).

The search warrant raises problems given the mistaken address (is this covered by Leon?) and the fact that it seems, apparently, to be based on information obtained through coercion in violation of the 5th Amendment. The goods pertaining to the robbery can be seized only if their incriminating nature is immediately apparent (Hicks).

The stationhouse confession is clearly a Miranda situation. Miranda appears to have been followed properly. Suspect makes an ambiguous invocation of counsel, which raises an issue about whether the officers must/may/cannot clarify the remark. As in State v. Leon, there is also a question about whether these stationhouse statements are sufficiently attenuated from the coercion to be admissible.

The Sixth Amendment is charge-specific and forbids specific questions about the robbery charges. (5 points).

Under the proposed Utah Victims Bill of Rights, Valerie would be kept informed of important proceedings (2 points).

Others/exceptional answers (5 points).

Question III

Is the stop a pretext? The facts (wildly weaving in and out of the lane) would seem to be distinguishable from U.S. v. Lyons (on reserve/discussed by Yengich). Accordingly the stop seems valid. Running a license and registration check is appropriate. (5 points).

The continuing events after the issuance of the citations do not seem to be consensual. Although the facts do not indicate whether the license was returned (a factor suggesting a mere "encounter" under U.S. v. Torres), the officer prolonged the stop by asking questions and eventually told Druggie and Friend to stay where they were. This requires a reasonable articulable suspicion, which is possibly present here because of (1) weaving, (2) small object discarded, and (3) bloodshot eyes that the officer associated with drug use. The additional question produced (unusual?) nervousness, which even under Utah cases probably gives rise to a reasonable articulable suspicion when coupled with other factors. The big problem is the extent of the stop while the officer searched the side of the road. It is not clear to me that the 30 minute delay here is as reasonable as the delay in Sharpe, although you can argue it both ways. (12 points).

When the officer returns to the car, there seems to be a good argument that Miranda warnings were required in spite of Berkemer, since the stop is no longer the presumptively-temporary, "normal" traffic stop. As a consequence, the statement ("it was heroin") is suppressible, although not the subsequent fruits of that statement (Elstad). Trickery is probably not a violation of the 5th Amendment (which has fruits consequences), but "you better tell me what you're up to" is closer to the line of impermissible coercion. (5 points).

The officer extended delay for five more minutes, which is probably incrementally-reasonable (if the previous delay was reasonable). Searching an open field for an abandoned paper is reasonable. (1+ points).

The arrest and subsequent search are lawful under Robinson (3 points).

The inventory search appears to be proper, subject to the question of whether the suitcase was a "container" requiring specific authorization. Also, does Larocco (plurality) require a warrant before an inventory search? Utah Court of Appeals has said no. Finally, the previous discovery of the drugs may give rise to probable cause to search the whole car (Acevedo). (4 points).

The standing issues need to be discussed under Rakas. Utah law under the Larocco plurality may be more forgiving on the stolen car issue. (5 points).

The defendants, if indigent, will receive counsel on the felony charges and on the misdemeanor charges if jail time is a possibility. An expert will be appointed if the defendants can make a viable case that an expert is needed and is a basic tool of the defense (Ake).

Fruits analysis has been partially described above. If the stop or delay is bad, everything is likely suppressed. (4 points).

Other issues/exceptional answers. (5 points).