CRIMINAL PROCEDURE

SAMPLE ANSWERS TO THE FINAL EXAM

Fall, 1997

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

 

Most students did very well on this question, which tracked (in some respects) the practice question that we did at the end of the semester.

 

The first police activity subject to constitutional scrutiny is the STOP of the car. Because it is a stop, it need only be justified by a reasonable articulable suspicion, not probable cause (as some students seemed to suggest). This is important, because the r.a.s. standard is less demanding than the p.c. standard at issue in Gates. A anonymous tip can provide r.a.s. to support a stop. See Alabama v. White.

 

The police here were able to corroborate a few things in the tip (e.g., red Mustang traveling down the road) and the license number seems close. On the other hand, the Mustang is not speeding or weaving when observed by the police. My sense is the courts would allow a brief traffic stop based on this kind of information, particularly since it appears to have been provided by a citizen-witness to a crime, not someone involved in criminal activity. However, a few papers made nice arguments to the contrary.

 

If the stop is justified, it is important to keep firmly in mind the reason for the stop: to confirm or dispel the suspicion that Breedlove was speeding in violation of the law. The officer reverses the normal course of stop in asking for license and registration first, then asking questions -- but it is hard to see how this raises a problem. Walker says asking for license and registration is proper. Asking one question directly related to speeding ("We got a report ....") is clearly within the scope of the stop. No problems there, and this produces something akin to a "confession" from Breedlove ("I was probably doing 80 ...."). At this point, the officer has probable cause for a speeding citation (although there is a gnarly legal question, outside the scope of this course, as to whether Breedlove's statement by itself is enough to convict). The officer properly writes up the ticket and returns.

 

Here she sees suspicious screws, combined with suspicious switches observed earlier. This would appear to create a r.a.s. about possible drug transporting, probably enough to briefly extend the stop to confirm or dispel this suspicious. The officer only briefly extends the stop to ask for consent. Note that the stop has not be transformed into an "encounter" because it is clear Breedlove is not free to leave ("Before I have you sign the ticket" -- this would clearly be understood by a reasonable person as indicating that signing the ticket is required before the stop is over). Since the stop can be briefly extended, the officer can ask for consent. The consent appears to be voluntary.

 

The scope of the consent is to look for drugs in the car, which would seem to include flipping the switch. Breedlove then withdraws consent, but the officer would appear to now have an additional basis for extending the stop - the flip of the license plate. She can confirm or dispel that suspicion and the compartment in the back of the car is now in "plain view."

 

Observing brick shaped object in a concealed compartment in the car might itself amount to probable cause, although we would like to know more details here about the objects and the compartment. If this does not amount to p.c., then the hardest part of the question is presented -- did Ochoa legitimately extend the stop to get a drug to sniff. A 2 hour Terry stop seems long, see Place, but probably was pursued expeditiously. After the dog alert, p.c. is not in doubt. A Larocco (plurality opinion) issue is also floating around here.

 

Statement [1]. No custody, see Berkemer, so no Miranda problem. [2] -- No Miranda problem. Maybe Breedlove can argue that this was invoking his legal right to terminate consent and therefore should not be used against him, but this is a stretch. [3] Breedlove is now probably in custody, as the stop seems to have matured from a routine traffic stop. But this is a volunteered statement produced without interrogation. [4] A dog sniff does not seem to be interrogation, so no Miranda problem. [5] There is probably interrogation here (unless this is viewed as a continuation of the discussion that Breedlove initiated in [4], above), but there is a "real" Fifth Amendment problem here -- threatening Breedlove to obtain the statement.

Question II

 

The initial stop of Doper requires r.a.s., which the police plainly do not have. Doper's expensive car is not close to a reasonable suspicion and being "surprised" (as opposed to the more arguable, but probably still insufficient, "nervous") does not add much at all. The stop is bad. While the officers then tell her Doper is free to go, it is unlikely that this is sufficient attenuation to avoid application of the "fruit of the poisonous tree." The first statement ("You'll never be able to prove ....") is suppressible as the fruit of a bad stop.

 

The police may, however, continue to investigate Doper and may even do so with "particular zeal" without constitutional problems. The issue then becomes whether the search warrant is good. Point #1 does not add much to probable cause, but does particularly describe the place to be searched. Point #2 may not be considered, per analysis above. Point #3 is essentially nothing ("informant is confident" -- on what basis!?), not even close to the kinds of tips discussed in Gates, Draper, Spinelli, etc. Point #4 is out, because it applies not to Doper but to Felon.⁽¹⁾ That by itself does not invalidate the warrant, as under Delaware v. Franks, the courts can consider the remaining parts of the warrant to see if it establishes probable cause. Point #6 is useful for tying in cash and guns, but doesn't add to probable cause for the search. That leaves only point #5, but that point by itself clearly establishes probable cause to believe that Doper is dealing drugs. So the warrant is supported by probable cause.

 

The tricky point (one that tended to distinguish the "A" answers from the "B" answers) was the "nexus" between the "buy" from Doper and the search of Doper's home. There is nothing to indicate why the officers believe they will find drugs at the home based on a sale elsewhere in Pioneer Park. The warrant could well be deficient for that reason. Even if the warrant is deficient, the Leon good faith exception will come into play, on this point at least.

 

The nighttime search is authorized by the magistrate, but is not supported in the search warrant. That is a violation of the Utah statute, but that violation may not have suppression consequences. See State v. Rowe (open question).

 

There is no authorization from the magistrate for a "no knock" entry, but the officers can argue exigent circumstances presented by repeated flushing of the toilet. That is not the most clear-cut exigent circumstance imaginable, so reasonable arguments can be made both ways.

 

The first statement is clearly admissible because there is no "interrogation" to trigger Miranda. The second statement would appear to be made in custody (maybe you could argue that events are moving so quickly that custody has not yet been established), so apparently it is suppressible under Miranda . Perhaps the Quarles public safety exception comes into play, but officer (not public) safety appears to be the main issue and Orozco seems to take a limited view of the circumstances in which this qualifies. See Textbook discussion at p. 541 note (b). Maryland v. Bouie will be helpful to the prosecution here as a "cf." possibility (viz., all the officers were doing was attempting to verbally conduct a protective sweep). There is also a voluntariness question because guns are drawn, but this does not mean the officers are extorting a statement at gunpoint (not "Talk or we'll shoot!") as some bluebooks erroneously suggested in arguing that the statement was clearly involuntary. Instead, that is one of the totality of the circumstances that might support the claim the statement is involuntary.

 

Question III

 

This question had a lot of issues (perhaps too many, in retrospect).

 

The anonymous tip looks like the Gates letter, only with less information. However, the police do not even need a r.a.s. to undertake an investigation. Thus, the flyover (if permissible) does not need to be supported by any level of suspicion.

 

The flyover is permissible. See Riley. The only issue the use of high powered binoculars. It is not clear that the binoculars were necessary to the observations that Cope made, so this is probably acceptable under the principles outlined in Dow.

 

Cope's drive along the public road is, of course, fine. A number of students thought that his entry into the field (past the "No Trespassing" signs!) created a violation of the Fourth Amendment, not recognizing the applicability of the "open fields" doctrine in Oliver and other cases. Even for students who recognized that the Oliver was applicable, there seemed to be a surprising amount of angst over whether this field was somehow curtilage under the Dunn factors. Perhaps this was because the test did not give much information about the field, but still the test specifically stated that this was an "isolated" corner "well away" from any structures on a 200 acre ranch. Thus, I thought my fact pattern looked easily like the open fields cases such as Oliver that allow the inspection, not a nail-biting close decision about curtilage.

 

Having discovered the marijuana, Cope does not include it in the search warrant. Accordingly, even if the peek was in violation of the Fourth Amendment, it did not taint the warrant. (If the peek were unconstitutional, however, it would raise an issue under Murray v. U.S. as to whether the officers would have continued to seek a search warrant but for

the peek.) However, failure to include the material leaves the warrant awfully thin. All that is left is a thin anonymous tip, partially corroborated, and some "green, leafy" material floating around. This might amount to p.c., but I'm skeptical. In any event, the magistrate issues the warrant, meaning Cope can rely on a Leon good faith argument. (Failing to include the peek in the warrant does not really seem to be bad faith -- instead simply leaving information that would, as noted above, have provided support for the warrant application.)

 

The search warrant justifies search and seizure under the netting. The arrest warrant authorizes entry into the house. See Payton. (It would be better to knock and announce purpose, rather than just knock.) Executing the arrest authorizes a full search of Rancher. Most students saw the trick here -- the fact pattern is exactly like Dickerson (the "plain feel" case), but the police are making an arrest, not conducting a Terry frisk, and therefore are free to manipulate or simply grab the suspicious item. The upstairs vials, however, are not within the "wingspan" of Rancher and, unless encountered in plain view during a legitimate Bouie "protective sweep," are not admissible. The search warrant likewise does not mention the car, so the vials in the car are suppressible. The vials in the bed in the pickup may be in "plain view" if their incriminating nature is immediately apparent.

 

Statements: The key issue is waiver of Miranda rights. A number of students thought that the "I'm not sure" statement should be evaluated under United States v. Davis. Davis, however, governs equivocal responses after a valid waiver of rights. Here the question is whether Rancher has waived his rights in the first instance, and the burden is on the government at this juncture. See State v. Leyva (discussed in class). The government's argument rests on "Alright" and the fact that Cope just laid out the options.

 

The subsequent statements may be suppressible under Miranda if the request for counsel at arraignment is viewed as invoking Miranda rights. At arraignment the Sixth Amendment right to counsel plainly attaches. The only realistic argument for the DEA is that the subsequent questioning was on "different" charges, but they really seem very closely connected.

* * * *

 

Overall, the tests were very solid, even though I thought this exam was harder than the 1996 exam. There were very few poorly written exams. That raises a question I am frequently asked by students who "only" got a B on the exam: What did I do wrong? Frequently, it is not so much a problem of doing "wrong" as failing to do more right. In general, most students taking the exam got most of the points right. Unfortunately, that means that many students who did a nice job on the exam end up with a B. To move into the A category, it is necessary to "break out of the pack" by doing very well on all three questions. The A papers typically identified virtually all the main issues and resolved almost all of them properly, showing great insight into the application of the relevant doctrines.

 

Note to future test takers: Since I read each question separately (e.g., I first do all the questions I, then all the question II, etc.), it does not good to cross-reference an answer in your bluebook. I do this deliberately so that your grade on Question II is not influenced by how you did on Question I. Thus a bluebook note that says "For the law on probable cause, see my answer in Question I" is not useful (although I don't take points off for doing that).

 

1. There is a small problem in the way the problem is written, since it was unfortunately unclear whether the police knew about the "buys" at the time they first stopped Doper and which of the two "buys" was from Doper. I gave full credit to students, regardless of which way they read the problem. Similarly I gave full credit to students, regardless of how they read the names of the officers conducting the "buys."