COLLEGE OF LAW

Criminal Procedure Fall, 1995

Professor Paul G. Cassell December, 1995

FINAL EXAMINATION

Instructions

This take-home examination begins at 8:00 a.m. It is an all-day examination with three questions. Each of the three questions will be given equal weight in determining the grade. You must re turn our examination to the registrar's office by 4:30 p.m.

This is an open book examination. However, you may not check out from the library criminal procedure hornbooks, treatises, or the like on the day you take the examination.

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.

Your answer for each question is limited as follows: Typewritten C for each question, three 8 2 x 11" pages, double spaced, using 10-point (nonscalable) type, standard 1" margins; Handwritten C for each question, six pages (that is, one side of a bluebook page), single spaced (twelve pages, double spaced) using neat handwriting.

No extra points will be given for citations of materials not covered in class or in the class materials. 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 six pages (including the cover page). Please make sure you have all pages.

WARNING: Law school policy forbids disclosing the contents of this exam to other students before the end of the examination period. Your cooperation in maintaining the confidentiality of the examination is appreciated by the instructor C and by your fellow students.

NOTE: Please read and answer the questions in order C specifically, do Question 1, then Question 2, then Question 3.

QUESTION I

On September 1, 1995, the ex-wife of former football star J.R. Rogers was found murdered with a knife in her home in Sandy, Utah. Police suspected that Rogers had committed the murder, and a large number of officers went to and surrounded his walled three-acre estate in Park City to ask questions. When they received no response to repeated buzzing of the intercom on the wall, one of the officers held another officer up so he could see over the ten-foot solid wall. The officer looking over the wall saw the Rogers' residence and, through an open window, a shadowy well-built figure, who the officer strongly suspected was Rogers' himself. At that point, the officer and several others went over the wall and into the estate. Inside the wall, they found an open, undersized football field immediately next to Rogers' residence. On the field in plain view were a bloody knife and bloody clothing, which the police seized. The figure, however, turned out to be a former teammate of Rogers', not Rogers' himself.

Meanwhile, later that same day, completely independently of and without knowledge of the events in Sandy and Park City, Highway Patrol Officer Fife observed Rogers driving south at 71 miles per hour on Interstate 15 near Nephi, Utah in his Cadillac with the customized license plate AFOOTBALL." While the speed limit is 65 m.p.h., highway patrol policy is to stop cars going 75 m.p.h. Fife clocked the car at 71 m.p.h., but thought it would be fun to talk to the famous occupant of the Cadillac, whomever that might be. Accordingly, Fife stopped Rogers' car on suspicion of speeding.

When Fife approached the vehicle, he saw in plain view on the back seat a fake beard, dark glasses, a ski hat, which (based on extensive training and experience) Fife thought might be parts of a disguise. Fife asked for and received a driver's license (in the name of R.J. Dodgers) and registration (in the name of J.R. Rogers), and then returned to his patrol to run a routine records check. The registration for the car came back to J.R. Rogers. There was no record of a driver's license in the name of R.J. Dodgers. Fife (on closer inspection) concluded that the driver's license was a fake.

Fife then returned to the car, retaining Rogers' license and registration. Fife asked Rogers about the fake license. Rogers admitted it was a fake I.D. Fife then told Rogers he was under arrest for displaying false identification and asked Rogers why he did it. Rogers gave his real name and said, because of his fame, he liked to keep a low profile.

Fife then returned to his car and called for backup. When additional officers arrived, Fife returned to Rogers' car and asked Rogers if he minded if the officers Atook a look at the car." Rogers said, AGo ahead." Fife then searched the passenger compartment of the car, seizing the fake beard and the other items. He also searched the trunk of the car, finding a closed briefcase. Inside the briefcase he saw a sock with red spots on its, which Fife thought might be blood spots. As Fife removed the socks from briefcase, Rogers' exclaimed, AI know what you're thinking, but I didn't have anything to do with the murder." Fife then said, AWhat murder"? Rogers then said, AOops, I'm not sure."

Microscopic analysis later determined that the red spots were blood of the victim, Rogers' ex-wife.

Rogers has been charged with the murder of his ex-wife. The prosecution seeks to use evidence relating to: (1) the items found in the Park City estate; (2) the items found in the passenger compartment of the car; (3) the sock found in the trunk of the car; and (4) all statements made by Rogers. Rogers objects.

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

QUESTION II

[All facts the same as above. Ignore Afruits" issues arising from possible illegal behavior in Question I C that is, you need not discuss how possibly illegal behavior in Question I might lead to suppression of evidence discussed in Question II.]

After Rogers' arrest, Fife and other officers took him to Interrogation Room #1 in the police station in Nephi, Utah, which had a hidden videocamera that recorded all of the subsequent proceedings. There, Office Fife read him the following warnings: AYou have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have the right to advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." Rogers said that he understood the warnings but that AMaybe I should talk to a lawyer." Fife then made it clear that he would not pursue the matter unless it was clarified whether Rogers was asking for a lawyer or just making a comment about a lawyer. Rogers replied, ANo, I'm not asking for a lawyer" and then said, ANo, I don't want a lawyer." Rogers then signed a standard waiver of rights form kept by the police.

Fife then asked Rogers where he (Rogers) had driven from that day. Rogers said, [1] AFrom Sandy." Fife then asked, AWhat were you doing up there?". Rogers said, AI don't want to say anything more right now." Fife then took Rogers back to his cell, left him there for two hours, and then brought him back to the interrogation room.

Fife then delivered new warnings, identical to those given earlier, and got a new waiver of rights. Fife said, AWhat were you doing up in Sandy?" Rogers said, [2] AI was visiting my ex-wife." Fife said, AWhat time was that?" Rogers said, AMaybe I need a lawyer now." Fife repeated, AWhat time was that?" Rogers said, [3] AIt was 5:00 a.m.."

Fife asked, AWas that the last time you saw her alive?" Rogers said, AWhen do I get to see a lawyer?" Rogers repeated, AWas that the last time?" Rogers said, [4] ANo, I saw her again at 6:00 a.m. I am not going to say anything more about my ex-wife."

Fife then changed directions, having just received information that the roommate of Rogers' ex-wife was missing and police in Sandy feared the worse. Fife asked, [5] AWhere is the roommate?" Rogers' said, AI saw her at 6:00 a.m. but not later. I definitely want an attorney now."

Fife then returned Rogers to his cell and two hours later brought him back to the interrogation room for one last question: AIsn't it true you killed your wife and her roommate?" Rogers said, [6] AYeah, but you'll never be able to prove it."

After the questioning finished, Rogers was placed back in a cell along with Sam Snitch, a police informant. Snitch asked Rogers whether it was true that he had murdered his wife. Rogers said, [7] AYeah, but only in self-defense." Later that same day, Roger had his first appearance before a judge and was first arraigned on all charges.

Prosecutors plan to introduce each of the seven numbered statements made by Rogers in his trial for murder, both in their case in chief and for impeachment.

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

QUESTION III

[All facts the same as above. Ignore Afruits" issues arising from possible illegal behavior in Questions I and II C that is, you need not discuss how possibly illegal behavior in Questions I and II might lead to suppression of evidence discussed in Question III.]

The same day that Rogers' ex-wife was murdered, police in Sandy received a telephone call from an anonymous tipster. The tipster, who refused to give his name, said he had seen a white Ford Bronco leaving quickly from the ex-wife's home at about 6:05 a.m. that morning and that Rogers' was driving. The tipster also said that the ex-wife's roommate appeared to be in the car trying to get out but was restrained by Rogers. The tipster said the roommate was wearing bright red clothes. A check with the Department of Motor Vehicles revealed that Rogers owned two cars: a Cadillac and a white Ford Bronco.

Sandy police then quickly arranged for a helicopter to fly to Park City, Utah, where they saw, parked on a public street close to the Rogers' estate, a white Ford Bronco with an open sunroof. Taking the helicopter down to 100 feet, well below applicable safety regulations, they looked through the open sunroof and saw what appeared to be bright red clothing in the passenger compartment of the car. (The clothing also would have been visible to any passerby on the street.)

The police then obtained a search warrant for the car. The affidavit in support of the warrant recounted:

1. The fact and location of Rogers' ex-wife's murder and the Rogers' estate;

2. All information regarding Rogers' vehicle ownership;

3. All of the information provided by the informant;

4. All of the information obtained from the helicopter; and

5. Information provide by Officer Frank Muhrman, that police had also seen a blood stain on the Bronco from the helicopter. (This information was known by Muhrman to be false, as Muhrman later admitted at a suppression hearing.)

The search warrant authorized police to seize AAll evidence and fruits and instrumentalities" of the murder or possible abduction of the roommate, Aincluding without limitation any bright red clothing, any weapons, any bloodstains, or any other useful materials." Other parts of the warrant and affidavit were properly completed.

Police executed the search warrant, seizing from the Bronco the red clothing, some marijuana cigarette butts found in an ashtray, a pair of bloody socks, a purse belonging to the roommate, and a note with the address A202 Main Street, Park City." Police rushed to that address and, without knocking on the door or identifying themselves, forcibly entered the residence. (It was owned by another former teammate of Rogers'.) There they rescued the roommate, who explained how Rogers' had murdered his ex-wife and abducted her.

The tipster was never located.

Prosecutors plan to use all of the evidence discovered during the execution of the search warrant at Rogers' trial for murder (and kidnaping of the roommate). The roommate will be their star witness. Rogers' objects to all of the evidence and testimony.

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