CRIMINAL PROCEDURE I FINAL EXAM MODEL ANSWER

 

David A. Moran

Winter 2004

 

Problem One

 

            (A)  Statement #1.  D has three arguments.  First, he will argue that Beige deliberately elicited incriminating information and therefore this statement cannot be used in the Burger King case since the 6th had attached.  The prosecution will argue that she was not deliberately eliciting from D but conversing with her partner.  Second he will argue that Beige’s statement constituted interrogation for purposes of Miranda.  Once again, the prosecution will argue that this was not interrogation since she could not reasonably expect this statement to her partner to produce an incriminating remark, but she did know he was drunk and therefore likely to respond.  Finally, D could argue that the statement was involuntary because he was drunk and Officer Beige deliberately exploited it.  Once again, the prosecutor will argue that she was not trying to exploit D but merely conversing with her partner.  So long as the judge believes Beige was not trying to get something out of D, the statement will probably come in.  Statement #2.  D’s only argument here is that he unambiguously invoked his right to silence but Gold continued with the interrogation.  The prosecution will point out that she asked about a different crime, but there was no significant break.  No 6th violation because D did waive his Miranda rights.  This statement is probably out. Statement #3.  This statement is out because Snitchly deliberately elicited incriminating information and D’s 6th Amendment right had attached.  (Moulton). Statement #4.  This statement should come in.  Gold asked about a different crime than the one to which D invoked his right to silence, there has been a significant break, and a fresh set of warnings and waiver.  There is no 6th Amendment violation because D waives his 6th Amendment right with his Miranda waiver.  Statement #5.  No Miranda issues because D is not in custody, but the statement is out because D has now invoked his 6th Amendment right at arraignment so Gold cannot initiate any deliberate elicitation on that subject.  No voluntariness issue because Gold did not make any specific promises of leniency.

 

(B)    Since his lawyer was present with him at the time of the identification at the arraignment, D’s only argument is that the identification procedure was so unnecessarily suggestive as to produce a very substantial likelihood of an irreparably mistaken identification in violation of Due Process.  To decide whether the motion should be granted, we would need to know all of the information used in the Biggers factors, such as how good a look the manager had at the time of the identification, her degree of certainty, how close her description was to D, whether she identified anyone else, etc.  If the motion is granted, Weir should not be allowed to identify D at trial because a grant of the motion means that her ability to accurately identify the robber has been irreparably tainted.

Problem Two

 

            (1)        The Cocaine.  (a) Dent.  Dent would argue that the initial stop was illegal because there was not reasonable suspicion to justify a Terry stop.  The basis of Gray’s suspicion (California plates, expensive car, shabby looking occupants) seems very vague but such drug profiles have been upheld as justifying stops in many cases.   If the stop is illegal, all of the evidence seized would be suppressed against both defendants as fruit of the poisonous tree.  Gray would next argue that even if there was reasonable suspicion, the stop became an arrest without probable cause before anything was found because it took 17 minutes before Gray asked for consent to search.  17 minutes is at the edge of the time that a Terry stop becomes an arrest.  Once again, if the stop became an arrest without probable cause both defendants would be entitled to suppress everything as fruit of the poisonous tree.  In addition, Dent should be able to argue that the opening of his clearly-marked bag was illegal (no probable cause and no warrant) since Cain wouldn’t have authority to consent to the opening of his bag even if the scope of her consent was that broad. (b) Cain.  Cain could also get the cocaine suppressed as fruit of an illegal Terry stop and/or fruit of an illegal arrest if the stop went on too long.  However, if the stop was legal and didn’t turn into an arrest, she cannot object to the illegal opening of Dent’s bag, even though it exceeded the scope of her consent, because she has no expectation of privacy in his bag.  Coke seized under plain view.

 

(2)   The Handgun.  (a) Dent.  Suppressed if the Terry stop was illegal or it became an arrest.  Dent gets the handgun suppressed in any event since it is the fruit of the illegal opening of his bag, which gave probable cause to arrest and search him incident to arrest.  The prosecution could argue that if the Terry stop was legal, the officer could obtain the handgun during a Terry frisk but it doesn’t appear that this was, in fact, a Terry frisk but a search incident to arrest.  (b) Cain.  Cain can’t object to the opening of Dent’s bag or his arrest and search, so Cain can only get the handgun suppressed as FOPT of an illegal Terry stop or if the Terry stop turned into an arrest.

 

(3)   The Marijuana.  (a) Dent.  Dent can’t complain about the arrest or search of Cain except that the arrest or search were the FOPT of the illegal opening of his bag which gave probable cause to arrest both of them.  Therefore, Dent can get the marijuana suppressed if he wins: (i) the illegal Terry stop; (ii) the Terry stop became an arrest; or (iii) the illegal opening of his bag. (b) Cain.  Besides the illegal Terry stop and the stop-becoming-an-arrest arguments, Cain’s only argument is that finding drugs in Dent’s bag didn’t amount to probable cause to arrest her.  This argument probably loses since there is a fair probability that if one person is carrying a large quantity of drugs, that the person traveling across country with him is in on it.  Cf. Maryland v. Pringle.  If there was probable cause to arrest, no problem with opening and searching her purse and seizing the marijuana under plain view.

 

(4)   The Shotgun. (a) Dent. The car was searched pursuant to either the automobile exception or Belton.  Either way, the probable cause for the search or the probable cause to arrest an occupant of the car came from opening Dent’s bag.  Therefore, Dent should be able to get the shotgun suppressed even though he has no expectation of privacy in the car.  (b) Cain.  Cain can get the shotgun suppressed as fruit of an illegal Terry stop or if the Terry stop became an arrest, but otherwise she loses because finding the cocaine in Dent’s bag (about which she can’t complain) gives probable cause both to arrest Dent (leading to a Belton search) and probable cause to search the car under the automobile exception.

 

 

Problem Three

     (1) Marijuana cigarette.   This should come in because the entry of D’s house was lawful as Brown was in hot pursuit of a dangerous felon and he saw the marijuana in plain view (2) Marijuana under coffee table.  This should also come in because once Brown saw the joint, he had probable cause to arrest D and then search the area within the grabbing distance of D, which should include the coffee table next to the couch where she was sitting. (3) Marijuana Plant in bedroom closet.  This one could go either way.  Even though Brown has just arrested D, he has no facts that would justify a conclusion that she has armed accomplices who are likely to attack him and she has not been arrested for a violent felony, so he cannot justify a protective sweep.  On the other hand, Brown could argue that he was continuing to look for the armed robber even though DeSalvo had assured him that no one had come in.  Brown perhaps wouldn’t believe her and might conclude that she was harboring the robber in the house.  (4) Cocaine behind bathroom mirror.  This is definitely out because there is no argument that Brown could be looking for the robber or anyone else behind the bathroom mirror and it’s not within grabbing distance.  (5) Boyfriend’s body.  The body probably comes in.  Crimson is in DeSalvo’s curtilage but is justifiably there in hot pursuit of a dangerous felon.  Upon arresting, Roberts, she’s entitled to do a grabbing distance search, so the only question is whether such a search can include digging with a shovel.  If it can, the body comes in.