Fall, 1995

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

Would looking over the wall be considered a "search" subject to Fourth Amendment scrutiny? If so, was it reasonable? On the one hand, no special enhancements to law enforcement senses were used. However, Rogers had erected a substantial wall around his estate. Reasonable arguments can be offered on both sides. (7 points possible)

Vaulting the wall quite clearly requires Fourth Amendment justification. It is hard for me to see how police can provide such a justification. Unlike the Simpson case, there is no perceived risk to other victims, only the possible presence of the murderer. Police have the place surrounded. They should obtain a search warrantCunless they can demonstrate that the football field is an "open field." This can be argued both ways, but I think the proximity to the home and use for personal rather than agricultural activities would suggest it is not an open field but rather curtilage of the residence. If open fields doctrine applies, items found would be in plain view. Otherwise, police failure to obtain a search would probably lead to the suppression of tangible evidence found in the estate. (8 points)

Meanwhile, out on the highway, a pretext issue emerges. Under Lopez, Utah state law would pose no problem for Fife. Federal law recognizes pretext doctrine, but it is unclear whether this is the kind of pretext that the doctrine is aimed at preventing. Fife clearly has grounds for extending the stop when learning that there is no registration in the name of Dodgers and that the license appears to be fake. (11 points)

On his return to the car, a Miranda issue arises quickly. While Berkemer says ordinary traffic stops are not considered "custody," the stop probably changes in character when Fife tells Rodgers he is under arrest and returns to the car and asks for backup. A reasonable person might think he was in custody at that point. Since no Miranda warnings were given, the subsequent statements probably will be suppressed. (7 points)

The search of the passenger compartment of the car is proper under Belton. The consent argument is also available to Fife, although the strongest argument against consent (not spotted by many students) is that, unlike many of the other cases we talked about, Rodgers has been told that he is under arrest. This is probably his best argument suggesting the consent was not voluntary (although it might not be a winner). Consent is important, because Belton can't get Fife into the trunk. A plain view argument for seizing the fake beard, etc., is also available if their incriminating nature was immediately apparent (in connection with a fake i.d. arrest!). If Fife can make the argument fly, then perhaps that gives him probable cause to search the trunk because he is still looking for incriminating materials (although this seems like a stretch). If Fife is lawfully in the trunk, searching the briefcase probably goes with his authority to be searching the trunk. A weaker argument for Fife is that this was an inventory search (which might not get him into a "container" like a briefcase. (10 points)

Fife volunteered a statement without questioning ("I know what you're thinking ....") that is not suppressible under Miranda. However, Fife's follow-up ("What murder?") looks like interrogation that probably requires Miranda warnings (unless you say this is all spontaneous or perhaps public safety questioning). (3 points)

Other issues. (4 points).

Question II

Miranda issues galore! Rogers is plainly in custody. The warnings are messed up. The right to counsel part of the warnings are 100% identical to those in Duckworth (a surprising number of students missed this) so they are acceptable. However, other parts of the Miranda warnings are missing, rendering everything that follows suspect under Miranda doctrine. (6 points)

The waiver argument revolves under Rodger's ambiguous reference to counsel. While Davis v. United States offers some comfort to the government, a key distinguishing feature is that Davis involved a situation where a suspect had already waived his rights and the issue was whether the reference was enough to terminate an already on-going interview. Here, the question is whether we should conclude that Rodgers has waived his rights before an interview starts, an issue on which the government clearly has the burden. The government might still prevail, but Davis really is distinguishable. These issues control whether statement [1] is admissible. (8 points)

Statement [2] presents a Mosley issue: Did police scrupulously honor Rodgers' right to remain silent. (Several students pointed out the Mosley involved new questioning on a different crime, a fact that cuts against the government here.) (6 points)

Statement [3] presents the Davis issue. No problem under Davis. (6 points)

Statement [4] does not appear to be an ambiguous request for counsel, but rather a request for counsel. Statement probably suppressed under Edwards. (6 points)

Statement [5] likewise suppressible under Edwards, with an additional point if you noted that the government's argument that this was questioning about a "new crime" is rejected under Roberson. (The state might try "rescue doctrine" here: they needed to rescue the roommate.) (6 points)

Statement [6] clearly suppressible under Edwards. (6 points).

Statement [7] does not present a Sixth Amendment issue (no "ears" vs. "voice" question, etc. Rodgers is not indicted, has not seen a lawyer, etc. Instead, this looks like Perkins v. Illinois to meCno interplay of police blue, etc. Maybe you can argue that this is different than Perkins because Rodgers is in custody on the murder charge, but it still seems like Miranda is not in play. (6 points)

Some nutty law professor in Utah thinks Miranda doesn't apply in federal cases (1 point) and that videotaping might be argued as a replacement for Miranda (1 point).

Question III

Vehicle search. The first question is whether we are in the federal world of the "vehicle exception" to the Fourth Amendment or the Utah/Larocco (plurality opinion) of search warrant required unless classical exigent circumstances are demonstrated. (5 points)

The tipster in support of the search warrant will be assessed under the Gates totality of the circumstances test. But the old veracity/credibility issues will likely resurface. The main problem is that we know little about the informant, but that was not fatal in Gates and probably won't be fatal here.

The helicopter. This presents a plain view issue. Many students did not resolve the issue one way or the other. I prefer seeing some resolution. My resolution is that the police were only seeing what was in plain view anyway. They fact that they took a helicopter to get there shouldn't make a difference. (Think of it this way - suppose they flew too low to Park City and then got out 100 feet away from the car and walked over. That would be legal; why not this?) (5 points)

Muhrman's lies will have to be taken out the warrant in assessing probable cause, but the balance of the warrant probably will suffice to establish p.c. (5 points)

Because the police got a warrant, Leon's good faith exception is in play. (But you might argue that police should not be able to use "good faith" when they have also included deliberately false information in the warrant.) (5 points)

The items to be seized are a little vague, notably the "useful materials" language. Some of the items seized seem reasonably within the specific language. The marijuana does not, but would be seizable as contraband in plain view. The note isn't really covered; the police have to argue deference to their experience in investigating these kinds of cases. (10 points)

Rescue of the roommate. Note that Rodgers isn't going to have standing to complain about this, it isn't his house and, in any event, courts are reluctant to suppress the testimony of a witness (as opposed to a tangible object). On the merits of the search, police failed to get a warrant, but the exigent circumstances of such a situation seem apparent (but this was really a pretty lucky guess to hit the right house). (10 points)

* * * *

Overall, most everyone did well, making sorting out the grades quite difficult. My sense is that the page limits were too tight for the exam. Something like 12 pages total (rather than 3 per question) would have been about right.