CRIMINAL PROCEDURE

SAMPLE ANSWERS TO THE FINAL EXAM

Fall, 1996

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 main question here is whether there was probable cause to support the search warrant. An anonymous tip can, if corroborated in appropriate circumstances, provide probable cause. See, e.g., Gates v. Illinois. The determination is based on the "totality of the circumstances," see Gates, although the old Spinelli-Aguilar factors remain "highly relevant." The anonymous tip here would not provide probable cause by itself. However, Deputy Dodge has attempted to corroborate it. See Points 2-6 in the search warrant. The problem is that the "corroboration" is quite thin. Point 2 simply indicates that a shoebox as a "possible" container. Point 3 applies to tens of thousands of persons. Point 4 applies to thousands of persons and, in any event, is unconnected with the crime (except in the most attenuated and indirect fashion). Point 5 applies to many people, and establishes a "motive" only indirectly. Point 6 is probably the best single bit of corroboration, although here again it applies to many people.

Dodge was also able to confirm that Crystal was staying up late at night. (This appears to have been permissible. Crystal was apparently in plain view, and therefore no Fourth Amendment "search" was involved.) However, again this could be entirely innocent activity. Taken together, it seems unlikely to me that what Dodge has collected and reported in the warrant application amounts to probable cause to search Crystal's workshop.

Judge "Friendly," however, has approved the warrant. This means that the defendant's motion to suppress will be denied on the grounds of police officer "good faith," see Leon, unless the defense shows the warrant falls into one of the four exceptions listed in Leon. The best argument for the defense is that the warrant was so lacking in probable cause that reliance on it was unreasonable, although this argument is unlikely to prevail. Judge Friendly is also likely to be a "neutral and detached" magistrate; previous work as a prosecutor or police officer is not a disqualifying factor for a magistrate.

With respect to the seizures, the (1) partially built bomb and (2) black powder are both covered by the warrant. A (3) letter from the University of Utah appears to be evidence of motive and whose evidentiary value is probably immediately apparent and therefore seizeable, see Arizona v. Hicks. The firearms are not covered by the warrant and therefore cannot be seized. (It is a separate issue whether the officers might be able to secure them during the search for their safety while executing the warrant.)

The premises to be searched appear to be properly specified in the warrant.

The car search was not designed to raise a Larocco issue. (The Larocco issue makes its appearance in Question III, below.) The difference is that the car here was parked on private property, that is, was parked on the driveway. Cf. Larocco (car parked on the street). As a result, the whole California v. Carney vehicle-exception-to-the-Fourth-Amendment line of cases are not available to the police. Instead, they need a search warrant specifically listing the car. They don't have one, so the evidence from the car will be suppressed.

Question II

The infamous Cassell Miranda problem. Actually, the real difficulty here was that the question was too easy, that is, almost everyone correctly resolved most of the issues, making it difficult to distinguish the best papers from the not so good ones.

Statement 1. No custody, therefore no Miranda problem. (Note: Crystal was told he could leave.)

Statement 2. Still no custody, because Crystal doesn't know about the officer behind him. Dodge's subjective intent is irrelevant. See California v. Stansbury. Also raised is the question of interrogation: Is asking "Oh, really" in a disbelieving tone of voice "interrogation" for purposes of Miranda? Probably since there is no other reason for the question. But, even so, since there was no custody, Miranda is not required.

Statement 3. Custody is a much closer question now. The best case for the prosecution is California v. Behler, where Mr. Behler "voluntarily accompanied" the police to the station and was found not to be in "custody" for Miranda purposes. The defense will distinguish Behler, however, by noting that Mr. Behler was specifically told he was free to leave. Here, no such information was provided. Custody can be argued either way by analogy to Behler, but if Behler is a close case and this is "more custodial" than Behler, then perhaps Miranda warnings are required here. Note also that Crystal quickly asked for his rights, perhaps an indication he (reasonably?) believed he was in custody. If so, statement #3 is suppressed.

The videotape may help the prosecution since it eliminates disputes as to what was said during questioning. In federal court, the prosecution can argue 18 U.S.C. 3501.

Statement 4. This should sound familiar -- it is the problem we did in class (Steele) word-for-word. As we discussed in class, you can argue both sides of the issue of whether the officer has simply "clarified" the Miranda warnings (as in Duckworth) or affirmatively undercut them. Apart from this close issue, the Miranda warnings are otherwise properly given.

Statement 5. This is not a close Miranda question. Crystal has invoked and therefore, under Arizona v. Edwards, etc., the statement must be suppressed. The tricky question here is "public safety" under New York v. Quarles (or, alternatively, as some cases describe a similar principle, the "rescue doctrine"). Quarles is arguably distinguishable because it involved failure to give the warnings, not deliberate violation of an invocation of Miranda rights. But the same safety principle appears to be at stake, and some courts have extended Quarles to such situations.

Statement 6. Public safety continues to be implicated, but now the "real" Fifth Amendment appears and trumps (if the defendant's Fifth Amendment argument is valid) the public safety exception to Miranda. Crystal has a strong argument that the statement was "involuntary" because it was obtained in exchange for a promise not to prosecute.

Question III

The stop of Crystal's jeep is a Terry stop that must be justified by a reasonable articulable suspicion. That is likely provided by the information from Crystal's brother in the previous question.

As for reviewing license and registration, that would appear to be reasonable in these circumstances to permit Dodge to determine whether the driver was indeed Crystal. (Five minutes also appears to be a reasonable length of time.)

As for "extending" the stop on Dodge's return to the car, it is important to distinguish a routine traffic stop. In an ordinary traffic stop, the purpose for the stop is completed upon issuance of a traffic citation. See U.S. v. Walker. Here, in contrast, Dodge's purpose for the stop was to see whether Crystal was involved in mailing letter bombs. Questions concerning bombs had not been resolved when Dodge returned to the car, hence the stop was not unduly prolonged under U.S. v. Walker, etc. when Dodge asked a few further questions to explore her concerns. Accordingly, whether the license was returned (the question doesn't say) is irrelevant. In any event, Dodge also has Crystal's "nervousness" which is probably enough, standing alone, to extend the stop in federal courts for a short period of time.

The search of the car rests on whether Crystal gave a valid consent. This can be argued well both ways. For the defense, note that the burden is on the state to establish consent and Crystal says he is not sure. For the prosecution, note that the "I'm not sure" language is followed by "maybe you can go ahead . . . if it doesn't take too long" and Dodge honored the restraint by not taking too long. Also, Crystal apparently got out of the car. If no valid consent was obtained, the search is bad and the evidence found must be suppressed. Even if Dodge has probable cause to believe Crystal is involved in the bombings (a debatable point and a moot one, since Dodge did not arrest), there is no probable cause to believe that contraband will be found in the car, which is what the Carney line of cases requires.

If the consent is good, the black powder would, on these facts, be seizable even though it is not contraband. Its incriminating nature is immediately apparent.

"Eyeing the bag" might be "interrogation" under the Miranda rules, but it does not seem likely that Crystal is in custody yet. See Berkemer (routine traffic stop not custody). Crystal's statement is admissible.

Dodge now has p.c. for the arrest. She has (1) Crystal's brother's statement; (2) confirmed by black powder in the car; and (3) Crystal's sudden, unprompted statement about mail bombs.

A search incident to arrest will justify seizures in the passenger compartment of the jeep but not the trunk. However, discovery of black powder in the passenger compartment likely provides probable cause to believe there will be black powder elsewhere. (Recall discussion of drug cases in which drugs in one part of the car provide p.c. for the whole car.)

The discovery of the note in the trunk provides probable cause to believe that incriminating evidence will be found in Crystal's Mustang (hint, hint). This raises the Larocco issue. Under federal law, p.c. to search a vehicle in a public place (the Mustang here is on the street) justifies a warrantless search. See California v. Carney (p.c. to search mobile home parked in parking lot justified warrantless search). Under the Utah Constitution, however, this result is unclear. See Larocco (Durham, J., plurality opinion). Under the plurality opinion, it can be argued that the police should get a warrant. You might try distinguishing Larocco on the grounds that the Mr. Larocco was not alerted to police presence, while here Crystal knew the police were searching for evidence.

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Overall, most everyone did well, making sorting out the grades quite difficult. It was especially hard to distinguish many of the answers on Question II. Overall, the average score per question was about 24 points.