CRIMINAL PROCEDURE I FINAL EXAM MODEL ANSWER

David A. Moran

Winter 2001

Problem One

(A) (1) Doyle's Statement. D will argue that his statement was the product of a Terry stop conducted without reasonable suspicion. D must first show that a reasonable person would not have felt free to decline the encounter. The encounter clearly began as a consensual encounter, but R then ordered D to produce identification and to empty his pockets. D will argue that a reasonable person given those orders by a uniformed officer would not feel free to decline them. The prosecutor will argue that the encounter remained consensual as D should have realized that he need not comply with R's requests. D must next argue that there was no reasonable suspicion to justify a Terry stop. As in Florida v. J.L., an anonymous report that someone wearing particular clothing is committing a crime is not reasonable suspicion without more. The tipster did not predict future activity or indicate a basis of knowledge, and the police corroborated nothing other than the fact that a person wearing such clothing was at the station. The prosecution will argue that the fact that D headed to the restroom after spotting R adds enough to the tip for reasonable suspicion, but that activity is hardly suspicious. If the encounter was a Terry stop and there was no reasonable suspicion, the statement is out as fruit of the illegal stop. (2) Marijuana. If the Terry stop was illegal, the marijuana would also be suppressed because it was the fruit of the statement made during the stop. If it was a consensual encounter or a Terry stop with reasonable suspicion, the marijuana is admissible because the statement gives R probable cause to arrest and, therefore, perform a search incident to arrest of D's clothing. (3) Cocaine. The briefcase was searched incident to D's arrest. Therefore, if the Terry stop was illegal, the resulting arrest was illegal and the cocaine found in the briefcase would be the fruit of the illegal Terry stop. D would also argue that even if the arrest was legal, the search of the briefcase was illegal because it was not within grabbing distance at any point during the encounter between D and R. However, the prosecution would point out that the briefcase was within D's grabbing distance when R first came into the station and, under the rationale of Chimel, could have been used to stash something.

(B) D's testimony denying any interest in the briefcase and the cocaine will destroy his expectation of privacy in those items and would result in denial of his motion to suppress for his claim that the search incident to arrest exceeded Chimel. In that argument, D claims that the police unconstitutionally seized and opened the briefcase, so D must have an expectation of privacy in the briefcase to complain. However, D's testimony would not defeat his motion to suppress that the briefcase was the fruit of the poisonous tree from an illegal Terry stop. For that argument, D is claiming that he was seized unconstitutionally, so anything that flows from that unconstitutional seizure must be suppressed whether he has an expectation of privacy in it or not (i.e., in Brewer v. Williams, D would have had no expectation of privacy in the body, but he could move to suppress it because it was the fruit of unconstitutional questioning of him).

Problem Two

(A) Statement # 1. D has two arguments. First, D clearly invoked his Miranda/Edwards right to counsel during custodial interrogation but was subjected to further interrogation. To succeed in this argument, D must show that O's statement after the invocation was the functional equivalent of interrogation, that is, a statement that O should have known was likely to elicit an incriminating response. D should be able to make this showing. Second, D can argue that the statement was involuntary because it was made in response to a promise of help. However, O did not explicitly promise any leniency. Although O lied to D about the evidence against him, there is nothing in the facts to show that the totality of circumstances would favor a finding of involuntariness. If either argument succeeds, the statement would be out for both charges. Statement # 2. D's 6th Amendment right to counsel attached to the robbery charge when he was arraigned, and I, a police informant, deliberately elicited an incriminating statement from D about that charge, so the statement must be suppressed as to the robbery charge. However, D had not been charged with attempted rape, so the statement is admissible as to that charge. Statement # 3. D's 6th Amendment right to counsel was still attached to the robbery charge and the playing of the tape amounts to deliberate elicitation, so this statement must be suppressed as to the robbery charge. Once again, D has still not been charged with attempted rape, so there is no 6th Amendment problem with using the statement for that charge. There is also no Miranda problem because D's prior invocation of his right to counsel expired when he was released from custody.

(B) D will probably be convicted because his entrapment defense will likely fail. In determining whether D was predisposed to possess meth at the time of the first government contact, the jury will look to D's prior record, which shows a willingness to commit crimes but not drug crimes and his lack of hesitation in accepting I's offer. While I did appeal to D's need to hire a lawyer, the appeal was really aimed at D's need for money, hardly a legitimate motive. D can argue from the fact that he knew nothing about meth dealing that he would not have been in position to commit such a crime but for the government, but the prosecution will respond that he easily could have received such an offer from a non-governmental actor and he easily could have become involved in meth dealing without governmental assistance.

Problem Three

(1) Marijuana Plant. The attempted traffic stop of D was legal, regardless of T's bad motives, because she observed D commit a traffic violation and therefore had probable cause for the stop. D left the scene of the stop and went into her apartment, but T could not enter the apartment to arrest D without a warrant for such a minor offense. Welsh v. Wisconsin. Therefore, the warrantless entry and arrest was illegal (a Payton violation), and the marijuana plant, which was seen in plain view during the illegal entry, must be suppressed. (2) Ecstasy Pills. The Ecstasy pills were found during a strip search at the jail, which is a lawful search incident to arrest for anyone booked into jail. D cannot successfully argue that the Ecstasy was the fruit of the Payton violation because there was certainly probable cause to arrest D for leaving the scene of a traffic stop and the Ecstasy was found after D was removed from her apartment. New York v. Harris. Therefore, the Ecstasy should not be suppressed. (3) Cocaine and (4) Heroin. The only two arguments the prosecution has for the search of D's car are search incident to arrest (Belton) and the automobile exception. Inventory will not work since there are no grounds given to impound the car. The big problem with a Belton search is that it was not contemporaneous with the arrest as almost two hours passed from the time D was arrested in her apartment until T returned to search the car. If it was a Belton search, T can look in the glove box and seize the cocaine under plain view, but she could not open the trunk to get to the heroin under Belton. However, finding the cocaine in the glove box would give T probable cause to look for more drugs in the trunk under the automobile exception. Given the long delay before the car search, the prosecution's better argument for the entire search of the car is the automobile exception. To succeed under the automobile exception, the prosecution would have to show that finding the Ecstasy in D's underwear would amount to probable cause that there are drugs in the car that she was in just before she was arrested, a showing that is arguable. If so, then T could search the car and look anywhere drugs might be found, which would include both the glove box and the trunk. Finally, there would no fruit of the poisonous tree problem from the illegal entry and Payton violation since the Payton violation produces fruit only inside the apartment and the marijuana plant that was found in the apartment would not be necessary to justify either the Belton search or the probable cause for the automobile exception.