WAYNE STATE UNIVERSITY LAW SCHOOL

FINAL EXAMINATION INSTRUCTIONS

Course: Criminal Procedure I

Date: Friday, May 7, 2004

Instructor: David A. Moran

Time allowed for examination: Three hours

Number of Pages (Including This Page): 5

Students may keep the examination questions.

SPECIAL INSTRUCTIONS:

1) For each problem, assume the jurisdiction follows federal law in all respects. Therefore, do not speculate as to whether the jurisdiction has a state constitution, a statute, or any other law that would produce a different result than would be obtained in federal court.

2) Each of the problems calls upon you to demonstrate knowledge of the state of the law, not the way the law should be. Therefore, you will receive no credit for arguing that certain cases were correctly or wrongly decided, even if I agree with your argument.

3) There are three problems. The problems are worth different numbers of points. Since you have 180 minutes and the total number of points is 180, you may wish to allot approximately the same number of minutes to each problem, or part of a problem, as the number of points that the problem, or part of a problem, is worth.

MATERIALS ALLOWED:

You may use your notes and outlines, commercial outlines, and any textbook, casebook, or treatise including, but not limited to, the books that were assigned for the course.

PROBLEM I (70 Points)

Early on the morning of March 17, two police officers, Bea Beige and Chuck Cream, noticed the front door of Peter’s Pet Shop had been kicked in. The officers entered the store and found Doug Duhan crouching behind an aquarium. The officers arrested Duhan, who smelled strongly of alcohol, for burglary. By running a computer check on Duhan’s license, the officers learned that a grand jury had indicted Duhan earlier that day for robbing a Burger King on March 10. The officers then told Duhan that he had just been indicted and was therefore also under arrest for robbery. The officers then placed Duhan in the back of the squad car.

As they drove toward the jail, Officer Beige said, “You know, Chuck, we’ve had eight burglaries and robberies just in the last week. I bet this drunk did some of the others.” Duhan said loudly, “You can’t get me for eight heists! Two, OK! But not eight!” [Statement #1]. At the jail, Duhan voluntarily took a breath test that determined his blood alcohol content to be .24, three times the legal limit for driving a car.

That afternoon, after Duhan had sobered up, Detective Gina Gold took Duhan to an interview room in the jail, read him his Miranda rights and obtained a written waiver. Gold then asked Duhan why he broke into the pet shop. Duhan replied, “I’m not going to talk.” Gold said, “OK. Let’s talk about the Burger King robbery and who else was there.” Duhan responded, “I was at Burger King when it was robbed, but I didn’t do it.” [Statement #2].

After further interrogation proved fruitless, Gold returned Duhan to his cell, where his cellmate, Sam Snitchly, asked, “What was she interrogating you about?” Duhan replied, “I robbed a Burger King, and she wants me to say who helped me do it.” [Statement #3]. Snitchly, who was a paid police informant, informed Detective Gold of this statement a few hours later.

Later that evening, Detective Gold returned to the jail to speak with Duhan. After reading him his Miranda rights and obtaining a written waiver, she said, “I think you took part in the Burger King robbery.” Duhan replied, “OK, maybe I did.” [Statement #4]. Duhan then said, “I want to see a lawyer,” and Gold returned him to his cell.

The next morning, March 18, Duhan was arraigned for both the pet store burglary and the Burger King robbery. The judge appointed the public defender to represent Duhan for both charges. While Duhan was standing next to his newly-appointed lawyer in front of the judge, Detective Gold brought the manager of the Burger King, Wanda Weir, into the courtroom. Weir looked at Duhan and said to Gold, “That’s him. That’s the guy who had the gun.”

Later that day, Duhan’s mother bailed him out of jail. That evening, Detective Gold called Duhan at his home and said, “Doug, if you just would tell me who was involved in the Burger King robbery, I would talk to the prosecutor and maybe he would make you a deal.” Duhan replied, “The Burger King job was my idea, so I’m not going to take my friends down with me.” [Statement #5].

A. (55 Points) Duhan pleaded guilty to the Peter’s Pet Shop burglary, but is scheduled to go on trial next month for the Burger King robbery. Duhan has moved to exclude all five statements from the Burger King robbery trial. How should the court rule? [Assume that the admissibility of each statement does not depend on the admissibility of any prior statements; in other words, assume that there is no fruit of the poisonous tree for any of the statements].

B. (15 Points) Duhan has also moved to exclude any testimony concerning the statement Wanda Weir made to Detective Gold in the courtroom on March 18. What argument will Duhan make in support of that motion? What additional information would you need to decide whether that motion should be granted? If that motion is granted, should Weir still be allowed to testify at trial that Duhan was the man with the gun who took part in the Burger King robbery?

PROBLEM II (65 Points)

Nebraska State Trooper Gary Gray was driving on Interstate 80 near the Wyoming border when he was passed by a brand new Lexus. Gray later testified:

Something seemed wrong to me with such an expensive car being driven by two young people who looked so shabby. The young man who was driving had a ponytail and was wearing a muscle shirt, and I could see a bunch of tattoos on his neck, and the young woman passenger had a nose ring and her hair was a total mess, like she hadn’t brushed it in weeks. Since lots of narcotics go to and from California along Interstate 80, since it was a luxury car with California plates, and since they looked like lowlife types, I figured they might be drug dealers.

Gray followed the Lexus for two miles hoping the car would commit a traffic violation, but the driver stayed below the speed limit and obeyed all traffic laws. Finally, as the Lexus was nearing the Wyoming border, Gray pulled the car over at 1:18 p.m.

Gray obtained the license and registration from the driver, Dan Dent, who informed Gray that the car belonged to the passenger, Carla Cain. Gray then returned to his police car and radioed the police dispatcher the license plate number, Dent’s California driver’s license number, and the car registration information.

At 1:35 p.m., the dispatcher responded that there were no arrest warrants for Dent or Cain and that the car was properly registered to Cain. Gray then walked back to the Lexus, returned the license and registration to Dent, and asked Cain, “Do you mind if I take a look in your trunk?” Cain replied, “Sure, no problem. Go ahead,” and pushed a button to open the trunk. In the trunk, Gray found three duffel bags, including one with “Property of Dan Dent” stenciled on the side. Gray opened that duffel bag and found that it was full of bags of white powder, which he seized. Gray then opened the other two duffel bags, but they contained only clothing and toiletries.

Gray then ordered Dent out of the car, handcuffed him, and searched him. Gray seized a loaded handgun from Dent’s pants pocket. Gray next ordered Cain out of the car, and she emerged carrying her purse. Gray handcuffed Cain and searched her, but found nothing of interest. Gray then opened Cain’s purse, from which he seized a small bag containing a leafy substance. After placing Dent and Cain in his police car, Gray searched the passenger compartment of the Lexus. Gray found and seized a sawed-off shotgun under the driver’s seat.

The white powder from the duffel bag was later determined to be cocaine, and the leafy substance from the purse was later determined to be marijuana. Dent and Cain have now been charged with multiple narcotics and weapons offenses, and they have each moved to suppress: (1) the cocaine; (2) the handgun; (3) the marijuana; and (4) the shotgun. How should the court rule for each item for each defendant?

PROBLEM III (45 Points)

Responding to a report of a mugging, Officers Barry Brown and Carmen Crimson quickly arrived at the scene, where they found the victim, Vera Vaughn, pointing in the direction of a nearby house. Vaughn said, “He ran that way. I think he went into that house. White guy, heavy build, maybe 6 feet tall. He took my wallet. He had a silver revolver.”

Officer Brown then ran to the nearby house, drew his gun, and burst in through the front door, while Officer Crimson ran around the back of the house. Upon entering the house, Brown found a startled woman, Diana DeSalvo, sitting on a couch in the front room watching TV. Brown asked, “Did someone come running into this house?” DeSalvo answered, “No, I’m the only one here. No one came in here.”

At that moment, Brown realized that DeSalvo was holding a lit marijuana cigarette in her hand. Brown then took the cigarette, ordered DeSalvo to stand up, handcuffed her, and searched her. He then looked under the coffee table next to the couch, where he found and seized a small bag of marijuana.

Leaving DeSalvo handcuffed in the front room, Officer Brown quickly walked through each of the four rooms of the house. In the bedroom, he opened the closet door and spotted a large marijuana plant, which he seized. In the bathroom, he opened the cabinet behind the mirror, where he found and seized a small bag of white powder.

Meanwhile, Officer Crimson found a man fitting the description of the mugger hiding in the bushes in DeSalvo’s back yard. Officer Crimson arrested and handcuffed the man, Rob Roberts, at gunpoint. Searching Roberts, she found a silver revolver in his back pocket, but she did not find Vaughn’s wallet. Concluding that Roberts had probably tried to hide Vaughn’s wallet just before he was arrested, Crimson quickly grabbed a shovel that was propped up against the back of DeSalvo’s house and began digging in the soft dirt next to the bush where Roberts had been hiding. Crimson did not find the wallet but she did immediately discover a human body that had been buried just a few inches beneath the surface. Forensic analysis subsequently determined that the body was DeSalvo’s former boyfriend, who had been missing for several weeks, and that he had been poisoned.

DeSalvo has now been charged with murder, possession of marijuana, and possession of cocaine (the white powder found behind the bathroom mirror). She has moved to suppress: (1) the marijuana cigarette; (2) the bag of marijuana found under the coffee table; (3) the marijuana plant found in her bedroom closet; (4) the cocaine found behind her bathroom mirror; and (5) her former boyfriend’s body. For each item, how should the court rule?