WILLIAM MITCHELL COLLEGE OF LAW

FINAL EXAMINATION

CRIMINAL CONSTITUTIONAL PROCEDURE

Professor Peter Erlinder

Friday, May 1, 1998

6:30 - 9:30 p.m. (3 hour)

1. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

GRADUATING SENIORS: If you are a graduating senior, note this fact on all bluebooks and this exam paper. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in Room 230. You must return the exam to this room at the conclusion of the exam period.

McGill received an anonymous telephone report that defendant Cole had touched the breasts of his 16 year-old adopted daughter, C.C. while the two were exercising nude as part of her Aninja training.@ McGill called Cole to the police station on the pretext of having him fill out a runaway child report on C.C. In reality, McGill planned to interrogate Cole about the report that he had sexually touched C.C. When Cole replied that he could not come to the station, McGill offered to send a car to pick him up and that the car would arrive in five minutes. When the car arrived at Cole=s home, uniformed officers entered the front gate and walked to the porch where Cole was sitting. Officers asked Cole if he was going to Acome along peaceably.@ Cole said he would be happy to come along and was escorted to the car by the officers.

At the outset of the 72 minute interview, which was held in McGill=s office and which was tape recorded, he told Cole Ano matter what we talk about here tonight, you will not be arrested.@ He said that C.C. was safe and that C.C. herself had made the accusations and that Cole needed to be completely honest with him so that they could Aget help for whoever needs it and get the problem solved.@

Cole said Ayou know, I don=t have to talk with you guys@ and denied that he had any sexual contact with his daughter. McGill then falsely told Cole that the police had been investigating C.C.=s report of abuse for some time and that the state=s attorney had given authorization to give Cole a polygraph test. When Cole said he didn=t trust polygraph tests, McGill falsely told Cole that he had extensive experience with such tests, that he had never known them to be inaccurate and that he was prepared to get a court order requiring such a test. Cole stated that he was still Ascared of the machines@ but he was willing to take a test Aif McGill was going to get a court order and all this stuff.@

McGill then deflected Cole=s attention to considering a series of hypothetical polygraph questions about the alleged sexual touching. As McGill pressed on with the mock polygraph exam, he alternated between accusations of dishonesty and assurances that he just wanted to Aget help for the right person.@ Cole persistently denied sexually touching C.C. or exercising nude with her. McGill falsely informed Cole that police had obtained a warrant and had secretly recorded the previous night=s Aexercise@ session with C.C. At that point Cole broke down and admitted he needed mental help. McGill said that Cole would get no help unless he made a detailed statement. Cole admitted he touched C.C.=s breasts, but insisted it was part of her Aninja training@ of body awareness. McGill returned to the mock polygraph questioning and Cole finally admitted that he had touched C.C. for his own gratification. McGill placed Cole under arrest, read his Miranda warnings and got a signed confession.

Cole now denies having improperly touched C.C. and wants to clear his name at trial. The government seeks to admit Cole=s admission. Discuss the admissibility of Cole=s statement and his trial testimony.

Following three armed robberies of toll booth operators, one of the victims identified a picture of Ilan Glia as the perpetrator. Detective Duggan and two other officers parked across the street from Glia=s apartment building. At 12:30 a.m. a white male resembling the defendant parked near the building and Duggan was able to see it was Glia. As Glia was entering the house, Duggan, who was not in uniform yelled, APolice, don=t move.@ Glia did not stop and went into his second floor apartment where he remained for several hours. Duggan could see Glia looking out a window as officers surrounded the building.

Glia did not respond to phone calls, or knocks on the door. Duggan learned from a prosecutor that a warrant could not be obtained until the next morning. At this point Afearing that some evidence could be destroyed, things could happen, he could hurt himself, we decided to go in and take him out of the apartment.@ Duggan said that Ahe assumed he still had the gun on him.@ Police got a key from the landlord who gave them permission to enter the apartment.

Defendant was allowed to change out of a bathrobe before leaving the apartment. When Glia entered his bedroom Duggan saw a gun on the nightstand. He took Glia and the gun to the kitchen while Skillman revisited the bedroom and found several vials of pills in the drawer of the nightstand which he seized. He then searched the apartment for additional weapons and discovered a sawed-off shotgun under a mattress and another shotgun under a mattress.

Glia was taken to the station where he was held on gun charges for three days while police investigated further. After three days, the witness who first identified Glia=s photo was present in court at Glia=s probable cause hearing on the gun charge and identified him as the toll booth robber. He was charged with the robberies. A search conducted under a warrant that was based upon the discovery of the guns resulted in seizure of a substantial quantity of bootleg cigarettes that did not carry the new $1.50 per pack federal stamp required by the recently enacted ATobacco Consumption Reduction Initiative.@ The pills were not contraband.

Glia and his girlfriend Leah, who sometimes shares Glia=s apartment on the weekend, are both charged with cigarette and gun possession. Glia has been charged with robbery. Discuss and decide the constitutional limitations on the admission of the evidence against both defendants.

Two Boston police officers in plain clothes were driving through a Ahigh crime area@ in an unmarked car when one of the officers saw a group of young people in front of a sandwich shop. Stout and another young man were cycling past the sandwich shop headed toward the officers. As the car passed the group, a girl yelled that the second young man had a gun. Officers followed, pulled up alongside and one said APolice, hold up a minute.@ The second young man stopped, was frisked, and nothing was found. The police followed Stout, who had continued riding down the street at an increased speed. Officers shouted to stop, Stout got off the bike and began running in the opposite direction. With officer Murphy in pursuit, Stout jumped over a fence and discarded a knife. Murphy seized him, searched his pockets and found a small amount of marijuana. Stout was arrested, the knife and marijuana were seized.

Stout was taken to the station for booking. His pockets were searched again and a store receipt for AThe Pony Keg@ in Cincinnati was found. His bail was set within 24 hours by a magistrate and he was released. A few days later Stout received a call from Detective Smith and was asked to come in Ato get his knife back.@ When he arrived at the station, Smith took him into a small room and confronted him with evidence that a murder had occurred at the APony Keg@ on the date shown on the receipt and the knife matched the wounds on the body. Stout said, Ait was an accident@ and AI don=t want to talk now.@ A homicide complaint was filed and second bail hearing was held before a magistrate on the homicide the next day. After the hearing, Smith went to see Stout. In a gush of remorse, Stout made more incriminating statements.

After being returned to Cincinnati, Stout was placed in a video lineup with four other individuals. The only persons present during the videotaping were police personnel. The videotape was shown to an injured victim after he got out of the hospital, along with another witness who had recently been located. Both witnesses identified Stout.

The trial court allowed the admission of all evidence regarding the homicide. Write an argument to the court of appeals on behalf of Stout.

The Big City Police Department=s Mobile Taxi/Livery Robbery Task Force was created to Aeducate taxicab drivers on safety and decrease the robberies and homicides against taxicabs.@ Officers stated that the program is governed by unwritten rules that are well known to all officers. They generally stop one in every five occupied taxicabs, but on the night in question the officers stopped either every occupied cab, or the closest occupied cab if several went by at once. The officers testified that they were told to explain the purpose of the stop, issue a pamphlet on taxicab safety, and Ainspect the back seat of the cab@ to make sure Athe passenger is O.K.@

In this case, the officers stopped a taxi at the same moment that a passenger had entered the cab. The passenger got back out of the cab and began to hail another cab. The officer opened the back door of the cab and observed a small wooden case which, from the officer=s experience, was commonly used to transport marijuana and marijuana paraphernalia called a Aone hitter.@ There was also a briefcase on the seat of the car.

The officer told the passenger to Ahold it right there.@ As the passenger turned to respond to the officer, the officer spun the passenger around, told him to face the cab and performed a frisk of his outer garments. Finding nothing, the officer asked the passenger to remove his shoes and patted down the passenger=s feet. The officer testified AI felt a crumpled plastic bag in between his toes that I know is the preferred place to conceal cocaine.@ The officer pulled out the bag and performed a Anasal field test@ by ingesting a pinch of the powder in the bag,

The passenger was placed under arrest and the wooden container and briefcase were seized and opened pursuant to regular inventory procedures. The wooden container held a small amount of marijuana and the briefcase contained illegal betting records implicating Green. When Green went to the station to bail out passenger, after passenger=s bail hearing, as they were leaving the station a detective asked them both Awhy were they involved in this mess.@ Both of them made statements that were harmful to their case(s). Green has told you that, after he was arraigned, he was called to the station to give handwriting samples and he went because he could not reach you while you were on vacation.

The statements, writing samples and physical evidence are being introduced against passenger and Green.

Passenger and Green originally retained you for $50,000. Now Green wants to defend himself and wants 1/2 the retainer refunded. Discuss and decide the issues.