Criminal Procedure Final Exam Fall 2006

Professor Erlinder

Question 1 (30 pts)

Although Officer Lena knew everyone on her beat, she did not know the young man who approached her and told her that an "old guy" wearing a parka was selling "crack" from his old Mustang in the alley at 4th and Main, and that he had a gun.  Lena reported to her partner, Officer Olie, what the informant had told her.

Based on Lena's report, Olie cruised the alley, but didn't find the car until he got to 5th Avenue. There, just as predicted by the information he got from Lena, Olie saw an old man in a parka sitting in a Mustang.  He went over to the car and told the man to get out.  Olie told him to put his hands on the car and performed a "pat down."

During the pat down, Olie felt a long thin, pencil-like object.  After feeling it several times, he concluded that the item felt like a syringe.  He reached into the pocket,  found that he was right, and ignored the old man's objections that he needed the insulin syringe for injections to prevent going into shock. Olie put the man in the back of the squad car and told him that, if he cooperated, Olie would not arrest him.  But, if he did not cooperate, he would be taken to jail and could talk to a doctor in the morning.

Olie got “old man’s” permission to search the car, and found a small unmarked vial and sexually explicit photos [like Ms. Mapp’s] in a locked briefcase in the trunk.  When he went back to the car the man was sweating profusely, Olie showed him the photos and the vial.  The man admitted  the photos were his and begged for an injection. At the jail, the vial was found to contain insulin and he received his injection.

At the station, Olie realized that the old man fit the general description of a person who had been exposing himself to early morning "mallwalkers."  The next morning, he took a photo of the old man to the mall and began asking if anyone recognized the photo.  One person said she thought she had seen him before, but she wasn't sure because she had never seen the “flasher” fully dressed, and had never looked at the flasher’s face. 

After a week in jail, the old man had a preliminary hearing and bail was set on the pornography charge.  Before he could post bond, Officer Lena arranged a line up for Ms. Mallwalker.  The old man was displayed with 4 others, all were required to wear long coats and flesh colored underwear, each was ordered to "flash" in turn.  When the old man refused, two deputies assisted him in opening his coat.  Ms. Mallwalker identified him, and he was charged with a second offense of criminal sexual conduct.

The prosecutor needs a memorandum identifying potential suppression issues and advising her as to the admissibility of statements, identifications and evidence.

Question 2  (30 pts.)

A detective received a telephone call from an anonymous source, calling from a blocked cell phone number,  who stated the defendant was “holding terrorist meetings in his basement".  The informant provided the defendant's address, a physical description of him and his pickup truck, descriptions of the "arab-looking" men attending the meetings  and further stated that that the defendant was a sharpshooter with the National Guard. 

The detective checked the phone records, vehicle records and drove by the address to confirm the tipster's information regarding address, pickup truck and exterior of the home.  Another officer,  confirmed the defendant's National Guard service and reported that the defendant had once stated at a Guard meeting that he thought "the war in Iraq is bullshit" and that the “war against terrorism is a fraud.”  Following this detailed corroboration, the detective applied for a search warrant, based on a complaint that stated:

Affiant deposes under oath and states: (1) an anonymous source has informed Affiant that defendant was holding "terrorist sleeper cell" operations in his home; (2) said informant provided the defendant's address, defendant's physical description, a detailed description of his vehicle, and (3) said informant provided a detailed description of “suspicious people” entering and leaving leaving the home.  The informant alerted Affiant that defendant has military weapons training.

Affiant, through independent corroborative investigation, has determined that the informant was correct with respect to all information identifying the defendant, his vehicle and his location.  Based on information reported by another law enforcement officer, Affiant has confirmed that defendant has received military-style training and has made statements indicating support for terrorist operations.

This warrant was presented to the State Commissioner of Public Safety, who is authorized to issue warrants under the State "anti-terrorism" statutes. Relying on the warrant, and in light of the potential danger presented by the defendant's military training, detective sought the assistance of a SWAT team in executing the warrant. The Warrant authorized a search for “all terrorism-related items.”

The team burst through the front door with a battering ram, which is also authorized by State "anti-terrorism" statutes for all  "terrorism-related" cases because of the inherent danger in all such cases.  The SWAT team encountered unidentified persons in the home and ordered them to lie on the ground and all received a thorough pat-down search.

Although no weapons were found, one person, who lived next door,  was found to possess "khat"...an illegal substance widely used in the Middle East and Africa as a substitute for caffeine. Defendant was later arrested at his girlfriend's apartment and also defendant was found to be in possession of "khat," as well. Both neighbor and defendant have been charged with possession of a controlled substance. The senior partner wants your analysis and advice with respect to Fourth Amendment issues, with respect to neighbor and defendant, and whether the firm should take both cases as appointed counsel.

Question 3 (30)

Officer Friendly was investigating a fire that killed a minor who lived in the home that burned.  The owner of the home,  Ashcroft, was in the hospital recuperating from burns sustained in the fire.  Friendly went to the hospital to try to learn more about how the fire started. When Friendly entered the room, Ashcroft appeared to Friendly to be coherent, but was on IV's and was being treated with strong pain medication.  Friendly said he only wanted Ashcroft to look at some photos.  For about half an hour, Friendly showed Ashcroft a series of photos of the fire scene, including photos of the dead minor, the minor’s room and toys. 

According to Friendly,  Ashcroft blurted out “I’m sorry, I didn't mean to kill him. I just wanted the insurance money."

Friendly told Ashcroft that he needed a formal statement and that, “you have a right to remain silent, but you can talk to me if you want to.  You also have a right to a lawyer if the case ever goes to court.” According to Friendly, Ashcroft he said, “I know all about those rights, I watch Miami Vice, maybe I should talk to a lawyer."

After permitting Ashcroft a few minutes of reflection, Friendly asked Ashcroft if he “wanted to get anything off his chest?” According to Friendly,  Ashcroft again said he was "sorry for starting the fire." Friendly, went to the now empty house and, after a lengthy search, found a burned gas can in the basement.  The prosecution will seek to use it as evidence.

While Ashcroft was still in the hospital, he was indicted on an arson charge in a grand jury proceeding at which neither he, nor his counsel were present.  Shortly after the indictment, Friendly returned to the hospital to verify details in the earlier statements.

Friendly says he asked Ashcroft, who was now fully alert and getting ready to leave the hospital, if he wanted to talk with him.  According to Friendly, Ashcroft agreed to talk with him and he took yet another statement as both walked out of the hospital.

A nurse is willing to testify that Ashcroft repeatedly told her that the minor had been playing with matches, and that she found matches on the body of the deceased boy. No one other than Friendly ever heard Ashcroft make any admissions regarding the fire.

Ashcroft took the stand at the trial and denied having made any statements to Friendly.  The alleged statements by Ashcroft and the gas can were introduced by the Prosecution.  The nurse testified for the defense and Ashcroft’s statements were used to impeach both Ashcroft and nurse.  Ashcroft represented himself at trial and seeks to do so on appeal.

As clerk to the Appellate Court, you have been asked to identify the issues raised by these facts and to suggest whether the evidence was properly admitted at trial.  In addition, the Court wishes to know whether Ashcroft’s pro se representation at trial and on appeal meet constitutional standards.

Question 4 (10 pts.)

Explain the significance of James Madison's Speech to the First Congress and how its major thrust can be reconciled with the positions taken by Publius [the pen name of Hamilton, Jay and Madison] in Federalist 84.

INSTRUCTIONS

1.  The Exam must be completed in three (3) hours.

2.  You may bring any handwritten materials into the exam and refer to them during the exam.  You may not use books, duplicated, typed or word processed materials, unless you have prior approval because of medical reasons.

3. Using un-approved materials is an honor code violation.

4.  Begin each new answer on a separate page and clearly indicate which question, or subpart you are answering, since each answer is evaluated in comparison with other answers to the same question.

5.  Please remember that I have to be able to read your writing to understand your analysis and to give you credit for the content of your answer.

6.  DO NOT write answers that try to anticipate the outcome I would prefer.  You will be evaluated on your ability to identify the constitutional issues raised by the facts, and your ability to analyze the issues and apply constitutional doctrine to the facts and to reach a reasonable conclusion. ( Just for clarification, when I say, "you can be in the majority or the dissent," what I mean is: you must apply Supreme Court doctrine as it is given us by the majority in past Supreme Court opinions, but you may apply that doctrine in a new factual setting in a reasonable manner that could either be the majority or dissent.  This means: stay within existing doctrine and apply it in a reasonable fashion to new facts.)

7. If you find what you think are typos or ambiguities in the exam describe the problem you perceive, make an assumption that resolves the problem and complete your answer based on that assumption.

Have a great holiday season!