COLLEGE OF LAW

Criminal Procedure Fall, 1997

Prof. Paul Cassell December 18, 1997

FINAL EXAMINATION

Instructions

This examination begins at 1:00 p.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 hour to allocate as you see fit. You must turn in your examination by 5:00 p.m.

This is essentially an open book examination. You may have the following materials with you: your textbook, your textbook supplement, my supplemental materials, 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).

Page limits: if you are handwriting this exam, you are limited to a total of three bluebooks, one side of each page, every other line. The three bluebook limit is a limit for the whole exam; for example, if you have space left over in the first bluebook after answering Question I, you can use that space for Question II, etc. If you are typewriting this exam, you are limited to a total of eleven pages, one side of each page, double-spaced.

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 5 pages (excluding the cover page). Please make sure you have all pages.

QUESTION I (1 hour)

Police in Cedar City, Utah, receive a call from a motorist with a cellular telephone phone that she has "almost been run off the road" by a red Mustang convertible "doing over 90 miles an hour" and weaving in and out of traffic on Interstate 15 five miles south of town. She got the first three numbers of the license plate, 1-2-3, but could not read anything further as the car whizzed by. The caller then is disconnected and does not call back.

Cedar City police send Officer Olivia Ochoa to I-15 on the edge of town, where a few minutes later she observes a red Mustang convertible approaching and driving within the legal speed limit of 75. Ochoa also notices the car bears the license number 1-2-8-A-B-C.

Ochoa activates her lights and stops the car. She approaches and obtains a driver's license and registration from the driver, Chris Breedlove. She returns to her car and, after a brief radio call to her dispatcher, determines that nothing is wrong with these documents. Ochoa then returns to Breedlove's car, while retaining possession of the license and registration.

"Just a few questions," she says. "We got a report that you were doing 90 back there a few miles. Is that true?" Breedlove replies, [1] "I was probably doing 80, but nothing more." (The speed limit for all relevant sections of the highway is 75 miles per hour.) At this point, Ochoa notices a series of unusual and apparently hand-made switches under the dashboard of the Mustang. Her suspicions aroused, she tells Breedlove "I'm going to write you up for doing 80. The limit here is 75."

She returns to her police car and a few minutes later returns to Breedlove's car with a ticket for him. As she approaches the Mustang, she notices for the first time that several of the screws retaining the rear license plate on the car appear to have been recently used. Finding this to be unusual, she returns Breedlove's license and registration and says, "Before I have you sign the ticket, I'm curious, do you have any drugs in the car?" Breedlove replies, "Of course not." Ochoa: "Mind if I have a quick look?" Breedlove: "Go ahead."

After Breedlove leaves the car, Ochoa reaches into it and flips the unusual switch she had seen under the dashboard. Breedlove nervously says, [2] "Hey, what are you doing, I don't want you to do anything else in my car." As Breedlove says that, Ochoa hears the rear license plate flip open. Ochoa replies, "Sorry, pal. Stay cool and stay here. I'm checking it out." She then looks at the compartment that was concealed under the rear license plate, and sees several brick-shaped objects wrapped in brown paper. Without prompting, Breedlove says, [3] "That's where I'm keeping my Christmas presents." She tells Breedlove to remain by the side of the road while she radios for a well-trained police dog and its handler. Two hours later they arrive, and the dog "alerts" by pawing and barking loudly, indicating the presence of cocaine. Watching all this, Breedlove comments: [4] "That mutt couldn't tell cocaine from Coca-Cola." Ochoa turns and replies, "Oh yeah, we'll see what the judge thinks. My guess is that he'll throw the book at you unless you tell us where you got the stuff." Breedlove then says, [5] "I got it from some dangerous folks in L.A., but I'm going to need protection before I tell you anything."

Breedlove is arrested and charged with speeding and possession of cocaine with the intent to distribute. The prosecution seeks to introduce the cocaine and the five numbered statements from Breedlove identified above (that is, statements [1] - [5]).

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

QUESTION II (1 hour)

Police suspect that Donna Doper is involved in distribution of cocaine in Salt Lake City, but have not been able to gather any solid evidence to that effect. They decide to go to her house and see if she would mind chatting with them. As two officers are pulling up in front of her home, they see Doper driving out of the driveway and onto the street in her brand new blue Mercedes Benz (a very expensive car). Doper sees the officers and appears to be surprised. The officers activate their lights and stop Doper a block from her house.

One of the officers approaches Doper's car and, for the first time, notices a cracked tail light. The officer then announces, "Ms. Doper, you're free to leave whenever you want, but we were wondering if you would mind answering a few questions for us." Doper says, "Unless you're arresting me, I'm out of here. You'll never be able to prove I'm dealing coke, you're spending too much time at the donut shop." The officers allow Doper to leave, but pursue their investigation of Doper with particular zeal.

Later that day, one of the officers' street informants calls in to report that he is sure that Doper is dealing illegal drugs because he has heard from several people that Doper is involved in the cocaine business. That same day (December 18, 1997) the officers prepare an application for a search warrant with the following information:

1. On December 18, 1997, Donna Doper was observed driving an expensive new car out of her home at 101 Peach Street, Salt Lake City, UT. The home is a two-story red brick building on Peach Street with the number 101 prominently affixed to the front.

2. When questioned this morning, Doper said, among other things, "You'll never be able to prove I'm dealing coke."

3. One of our informants on the street, whose identity must remain secret to protect his safety, is confident that Doper is involved in the illegal distribution of cocain.

4. Officer Frank Smith, while acting as an undercover agent, purchased one ounce of white powdery substance later determined to be cocaine from Doper in Pioneer Park, Salt Lake City, on December 15, 1997. Doper said it was "good stuff that will get you flying."

5. Officer John Jones, while acting as an undercover agent, purchased one ounce of white powdery substance later determined to be cocaine from Doper in Pioneer Park, Salt Lake City, on December 16, 1997.

6. Your affiant has extensive experience in the investigation of illegal drug trafficking and has frequently observed that, wherever illegal drugs are stored, firearms and quantities of cash associated with the drug trade will be found as well, and that "coke" is often used by those involved as shorthand for "cocaine."

The warrant application seeks authority to search Doper's home, as specifically described in point #1 above, for "any and all white powdery substances, including cocaine, and for all firearms and quantities of cash" and to do so "at any time of day or night."

A magistrate approves and signs the warrant in the ordinary course of things, authorizing both a daytime and nighttime search. It is later determined that the affiant for the application has recklessly made a mistake about point #4: Officer John Jones purchased drugs not from Doper, but rather from her cousin Francine Felon.

As the officers secretly approach Doper's home that night at midnight, they hear a toilet flushing repeatedly. They burst into the house unannounced and find a startled Doper in the bathroom, attempting to conceal ten kilos of cocaine and ten thousand dollars in cash. She exclaims, "I can't believe I've been caught by the donut chasers." The officers draw their guns, order Doper to stop, and ask her if anyone else is in the house. Doper replies, "Just my boyfriend, but he doesn't know anything about this stuff." Doper refuses to say anything further.

The prosecutor has charged Doper with possession of cocaine with intent to distribute and seeks to introduce the ten kilos of cocaine and all the statements made by Doper (1) upon leaving her house, (2) during the sale to Officer Smith, and (3) during the search of her home.

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

QUESTION III (1 hour)

Police in Juab County, Utah, receive an anonymous letter that says "Randy Rancher strictly makes his living on selling drugs. He has a big field of marijuana under netting in a corner of his property. Check it out."

After receiving this letter, Chief Craig Cope flies over Rancher's 200-acre ranch in a helicopter, remaining at all times at 1000 feet, well above the minimum height required by federal aviation authorities. Using high-powered binoculars to examine an isolated corner of the property well away from any structures, Cope observes something green and leafy growing. Cope is unable to see anything more because there is a strange camouflage netting over that field that appears to be designed to conceal the field from any view.

Cope returns to the ground and drives along a public road adjacent to hidden field. He again sees the netting, which is unlike anything he has ever seen on other ranches in the area, but is unable to see what is under it. Frustrated, he parks his car and crawls under the surrounding barbed wire fence (with accompanying "No Trespassing" sign) and walks over to the netting. He peaks under it, and sees plants that, based on his extensive training and experience, he immediately recognizes as marijuana plants.

Cope then returns to his office and prepares applications for a search warrant for the corner of the property covered with the netting and an arrest warrant for Rancher (the owner of the property) for cultivating marijuana. These applications do not recount peaking under the netting, but do fully and accurately recount the anonymous letter and the unusual observations from the helicopter. The warrant application properly and particularly describes both the field in the corner of the property to be searched and the marijuana to be seized. The magistrate issues both the search warrant and the arrest warrant. Cope executes both of them the next day. Cope locates, again, the marijuana under the netting and seizes some of it. Then seeing Rancher's pickup parked outside the homestead on the ranch, Cope approaches and knocks on the front door. Receiving no answer, he enters the home, finds Rancher in the basement, and arrests him. He then pats down Rancher, feels something small but suspicious in one of his pockets, and reaches in and pulls out a small vial of what is later determined to be illegal methamphetamine. A search of Rancher's upstairs reveals two additional vials of methamphetamine; three more vials are found in Rancher's pickup under the front seat; police then notice four empty vials rattling around in the back bed of the pickup. Later testing of all these vials reveals they all contain at least some methamphetamine.

Cope properly gives Rancher his Miranda rights and asks if Cope would mind talking about the netting on his property. Rancher say, "I'm not sure whether its a good idea or not. It probably isn't but what do you think?" Cope replies, "Hey, it's your choice." Rancher then says, "Alright, I'll bet the netting seems strange to you. It seems strange to me, too. Some friends of mine put it up and I don't know what it's for."

Rancher is arraigned on the marijuana cultivation charges contained in the arrest warrant later that day and requests counsel. The next day Rancher consults with his appointed counsel. Two days later, federal agents from the Drug Enforcement Administration arrive to ask Rancher further questions about drug dealing. They give Rancher his Miranda warnings and obtain a written waiver of those rights. Rancher then explains in detail his involvement in marijuana trafficking and how he obtained the vials containing methamphetamine .

Later, new and superseding charges are filed against Rancher for both the illegal cultivation of marijuana and illegal possession of methamphetamine. The prosecution wishes to use all of the above-discussed information and evidence that Cope and the DEA agents developed in the course of their investigation, including the marijuana, all vials discovered by the police, and all the statements by Cope.

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