Federal Criminal Procedure

Police officers are suspicious that a home owned by Jane and John Crank is being used as a point of distribution for methamphetamine. The police have placed the home under surveillance and verified that John and Jane actually own the home and reside there. A background check reveals that Jane has a prior conviction for DUI, but there is no other indication of prior criminal activity by either John or Jane. Police decide to approach the home and ask if they can "take a look around inside." Two HPD officers knock on the door, and Jane Crank answers. When the officers first spoke with Jane Crank after knocking on the door, she was reluctant to give them consent to enter. However, one of the officers told her "I assume you realize that in Houston there is an ordinance that allows us to take a quick look inside, and we are just trying to be polite" (this is, of course, a lie as no such ordinance could be constitutional). Jane then told the police they could come in and look around. John Crank was asleep on the couch when police spot a zip lock bag with white powder on the coffee table near him, with a small mirror and razor also on the table. Police seize the powder and wake John up and place

A. Both motions will be granted. invalid consent - officer threatened an unlawful act. all evidence is tainted as FOPT.

Now assume that shortly after being arrested Bob is arraigned on a charge of Robbery. Police then arrange for the same victim to observe Bob in a lineup with five other individuals. Everyone in the lineup looks generally the same in terms of age, size, and hair color. Police notify Bob's defense counsel but he tells police he is leaving in a few minutes for a holiday weekend and it will have to wait until the following week. Police then learn the victim has a business trip that will take him out of the country for a month and that he has to leave the next day. Police go ahead with the lineup and the victim picks Bob without hesitation and says, "I'm positive it is him; he is the guy I know from high school." Prior to trial Bob moves to suppress the ID. The court should: A. Grant the motion and suppress the ID. B. Deny the motion and admit the ID.

A. Grant the motion and suppress the ID. D was arraigned here, making him a defendant. His lawyer was absent and it was a corporeal ID. The out of court ID is therefore per se inadmissible at trial.

The police received a report that women dressed as superheroes had robbed a man in his house and stolen many of his valuables. The only way onto or off the island where he lived was a ferry. The last ferry was getting ready to leave for the night when the report was made to the police. Without attempting to get a warrant, the police set up a checkpoint and stopped all the cars entering the ferry ramp. In one vehicle, the police noticed three women fidgeting rather nervously. Officers decided to search the car and upon doing so they found the victim's stolen property hidden under the front seat. The passengers were immediately placed under arrest. At her trial for armed robbery, the owner of the car moved to suppress the property found in the car. Their motion should be: A. Granted. B. Denied.

A. Granted. In this problem, there is no indication police had probable cause to search the car. In fact, what they observed did not even rise to the level of reasonable suspicion. As a result, there was: 1. No lawful basis to stop (seize) the car, and remember when a car is seized all passengers are seized, so they all have standing to object to the seizure as a poison tree tainting the discovery of the evidence; 2. No probable cause to search, rendering the search of the car unreasonable and therefore unlawful.

Defendant, a 19-year old who has never before been arrested or interrogated by police, is brought to trial for burglary. Prior to trial the defendant moves to suppress a confession the prosecution intends to offer, and burglary tools discovered pursuant to a warrant to search his garage. Defendant testifies that he is a member of a gang and has obvious gang associated tattoos on his face and neck; that he was brought into an interrogation room after being arrested; that he was read and waived his Miranda rights. The interrogation record indicates that defendant denied any involvement in the burglary for about 3 hours of questioning. At that point, defendant says that one detective said to the other, "I'm done with this guy. Let's just drive him over to the other gangs block and dump him on the street." Defendant asked if they were serious and says, at that point the started to remove him from the room and one detective said, "I'm going to get the car." At that point defendant admitted his involvement in the burglary. Based on the admission, detectives obtained a warrant to search his home and garage, where they seized the burglary tools. You are the judge. You will: A. Suppress the admi

A. Suppress the admission and the tools. The officer implicitly threatened physical harm to the suspect. The fact that there was a Miranda waiver does not mean a confession will never violate DP as actually involuntary. Here, *there is enough evidence to establish police "overbore" the free will of the suspect; that is a coerced confession. This is an actual constitutional violation*, and but for the confession the police would not have had PC to get the warrant, so the evidence discovered is *fruit of a poisonous tree.*

Now assume the prosecution intends to ask the victim to identify Bob during his trial. Bob's counsel makes a motion in limine to prohibit the victim from making this ID. The trial judge determines that the victim knew Bob well, saw him clearly in daylight, promptly reported the robbery and gave a detailed and accurate description of Bob, and selected him from a lineup with others who looked generally the same. Will the court allow the victim to identify Bob during the trial? A. YES B. NO

A. YES The 6th Amendment violation makes allowing the witness to ID the defendant at trial presumptively prohibited. But the presumption may be rebutted by clear and convincing evidence that the witnesses ability to ID the defendant is independent of the inadmissible out of court ID. Here, there is ample evidence to support that finding.

Now assume that, without making the comment about the fake Houston ordinance, when the police asked Jane if they could come into the house she said, "I guess I really have no choice, so go ahead." Assume also that police looked in Jane's purse and found the cocaine after they seized the bag on the table but before they woke John up and placed him under arrest. Based on these facts, which answer below reflects the most likely outcome of the 4th Amendment based suppression motions? A. Both motions will be granted. B. Both motions will be denied. C. The motion to suppress the cocaine from the table will be granted, but the motion to suppress the cocaine found in the purse will be denied. D. The motion to suppress the cocaine found on the table will be denied, but the motion to suppress the cocaine found in the purse will be granted.

B. Both motions will be denied. Consent is valid now. Her hesitation does not indicate denial. Seizure of the cocaine was valid based on PV doctrine. Search of purse illegal because it was not preceded by an arrest, but D has not standing to object because it was not his purse.

Over a few weeks the police accumulated reliable information that Jason operated a large cocaine distribution network; that he and his accomplices often resorted to violence; and that they kept a small arsenal of weapons in Jason's home. One day, the police received reliable information that a large brown suitcase with leather straps containing a supply of cocaine had been delivered to Jason's home and that it would be moved to a distribution point the next morning. The police obtained a valid search warrant to search for and seize the brown suitcase and the cocaine. Police go to Jason's 1 story house to execute the warrant. The police knocked on Jason's door and called out, "Police. Open up. We have a search warrant." After about 30 seconds with no response, the police forced the door open and entered. Hearing noises in the basement, the two police officers ran down there and found Jason with a large brown suitcase with leather straps. They seized the suitcase and put handcuffs on Jason. A search of his person revealed a switchblade knife and a .45-caliber pistol. Jason cursed the police and said, "You never would have caught me with the stuff if it hadn't been for that lousy snitch H

B. Denied Police had probable cause Jason was in possession of cocaine, and therefore once they discovered him in the house they had authority to arrest him. They were in the house pursuant to a valid search warrant and they discovered him while acting within the scope of the warrant. That means they discovered him lawfully and did not need an arrest warrant to arrest him. Once he was arrested police were automatically allowed to conduct a SITLA of Jason's person and anything within his wingspan. Both the 45 and the knife were found on his person. Accordingly, there is no basis to suppress this evidence.

Bob is arrested by HPD as a suspect in a robbery and brought to the police station. The victim is also at the station, where he is being questioned. He tells police he was held up at knifepoint by a guy he remembers from high school, where they both graduated two years ago. He identifies his assailant as 'Bob Hope,' and says that the two played together on the baseball team for two years. He also gives police a very accurate description of Bob. While Bob is in an interrogation room handcuffed to the table, police have the victim look at him through a one way mirror. The Victim says, "That's him. I'm sure he is the person who robbed me." Prior to trial, Bob moves to suppress the ID. The court should: A. Grant the motion and suppress the ID. B. Deny the motion and admit the ID.

B. Deny the motion and admit the ID. The facts here indicate that although unnecessarily suggestive, the procedure did not create an irreparable risk of misidentification.

Now assume that the police officer questioning the victim did not know Bob had been arrested and was in the interrogation room. The victim asks the officer if he may use the restroom. The officer says, "Sure, it's down the hall. Let me walk you down there." On the way they happen to pass the one way mirror. The victim sees Bob handcuffed to the table and says, "Wait, that's him! That's the guy who robbed me." Prior to trial, Bob moves to suppress the ID. The court should: A. Grant the motion and suppress the ID. B. Deny the motion and admit the ID.

B. Deny the motion and admit the ID. In this variant, there was not police arrangement of the procedure; it was just a coincidence. Like *Perry v. NH*.

Police receive an anonymous tip that Suspect is dealing drugs out of his home. In response they initiate surveillance of the home from an unmarked car on the street. However, only 20 minutes after they arrive they see the suspect leave his home carrying a backpack. The lead officer decided to confront him as he walked to his car parked on the street. Five officers confronted him, all wearing police uniforms; two stood close behind him; two stood in front of him, and one approached him to ask him questions. One officer had a shotgun; all the others had their weapons holstered. One police vehicle pulled up next to the co-tenant's vehicle with lights flashing and remained there blocking his access to it while police questioned him. None of the officers touched the suspect but one asked for consent to search his backpack. The suspect responded, "I guess I have no choice" and consented. Police discovered illegal narcotics in the backpack. Prior to trial the suspect moves to suppress. The court should? A. Grant the motion based on invalid consent. B. Grant the motion even though the consent appears valid. C. Deny the motion.

B. Grant the motion even though the consent appears valid. In this problem, the consent is voluntary; nothing police did to the suspect "overbore his free will." The fact that he did not know he could decline does not invalidate the consent; consent must be voluntary but need not be "intelligent." However, the police conduct leading up to the consent subjected the suspect to a seizure: the number of officers and how they deployed would lead a reasonable person in the suspect's situation to believe he was not free to leave. Nothing up to that point provided even RS to justify the seizure: all police had was an anonymous tip and they had not even corroborated some future prediction. This means the seizure was unreasonable and the consent and the evidence it led to are fruit of the suspect's poisonous tree.

Police Officer Jones is in his patrol car at 2 A.M. in an area where there have been a high number of burglaries when he sees a man jaywalking. The officer pulls over, exits his vehicle, and calls the man over. The man responds and asks "what's wrong?" Officer Jones asks why he was jaywalking. The man says "I did not realize it was not allowed." Officer Jones then asks for ID. The man says he does not have one. Officer Jones then asks his name. The man gives him the name Peter Pan. Officer Jones asks why he does not have an ID. The man responds "I don't drive and don't need one." Officer Jones tells him he is going to write him a citation for Jaywalking and that he should stand in front of the police car while he calls in his name to dispatch. While he is calling in the name, the man takes off running. Officer Jones chases him. While he is running, Officer Jones sees him reach in his pocket and then throw something to the ground. As Officer Jones is chasing him, the man stops running, turns, and says "OK, I'll stop!" Officer Jones then tells him "get down on the ground". The man complies; Officer Jones places him in handcuffs and tells him he is under arrest for fleeing apprehension. Off

B. Deny the motion to suppress the cocaine an deny the motion to suppress the statement. Statement is admissible because although seized, D was not in custody so no Miranda warning required. Cocaine admissible pursuant to PV Doctrine. D was not seized while running, and initial seizure was lawful pursuant to PC of jaywalking violation and the duration was reasonable.

Now assume that when the trial judge considered the motion to suppress the truck, she determines that although a close call, the information provided in the affidavit was insufficient to establish probable cause. Based on this finding, the court should: A. Grant the motion to suppress. B. Deny the motion to suppress.

B. Deny the motion to suppress. IL v Gates held that when a trial court reviews a magistrate's finding of probable cause to support a warrant, that review is not de novo. Instead, the probable cause finding is given substantial deference. That means that the warrant will be upheld as valid even if the trial judge disagrees with the PC finding, so long as that finding has a plausible basis in fact. In this problem the judge determines the PC finding was a "close call." As a result the warrant will be treated as valid pursuant to the substantial deference standard of review.

Officer Smith is on routine patrol and receives a dispatch call to an apartment complex. The dispatcher says, "Report of a disturbance in Apartment 4B but no additional information." When Smith pulls up a resident flags him down and says, "Hey, I called. I live in Apartment 6B right above 4B and it sounds like there is a serious fight going on in there; I heard a woman yelling, "Don't hit me" and then a thud lick someone being punched or kicked." Smith knocks on the apartment door and announces himself, but no one responds. He then walks over to the ground floor window and looks inside, where he observes a broken glass coffee table and a blood trail towards another room. At that point Smith breaks the window and enters the apartment. He follows the blood trail to the bedroom where he observes a woman lying on the floor unconscious and bleeding. He calls for backup and an ambulance. He also observes a large kitchen knife with blood on it lying next to her. He seizes the knife. The woman survives and testifies that her boyfriend, who lived in the apartment with her, beat her and stabbed her. His fingerprints are lifted from the knife and the blood is that of the victim. The boyfriend is br

B. Deny the motion to suppress. In this problem the officer conducted a warrantless search of the apartment that led to seizure of the knife. Because the defendant lived in the apartment he has standing to object. However, the search was reasonable pursuant to both the exigency exception (what the officer knew at that point created PC a crime of violence was ongoing in the apartment and waiting for a warrant would have put someone in imminent danger) and the community caretaking function (at a minimum the officer had a reasonable basis to believe someone in the apartment was in urgent need of assistance). Accordingly, the knife was properly seized pursuant to the PV exception.

Now assume another officer observes D walking casually down the street about two blocks from the home. That officer recognizes D as matching the descriptions relayed by the officer who saw him before he ran, and also knows D's friend Joe is already in custody and admitted he and D were burglarizing the home. The officer pulls his patrol car over ahead of D, gets out, and tells D he needs to talk to him to clear something up. D says, "I really need to get somewhere" but the officer says, "I really need you to stay here while I ask you a few questions." D stays put, and the officer asks for his ID, where he lives and where he is going, and where he is coming from. D gives answers the officer knows are false. Finally, the officer says, "Look, what I really want to know is if you realize we already arrested your partner Joe and that he told us you were involved in a burglary." D then says, "That POS, I knew I couldn't trust him to keep his mouth shut." D is then arrested. The prosecutor wants to offer the statement D made about his friend as evidence that he was in fact involved in the burglary. D moves to suppress the statement as a violation of Miranda. The court should: A. Grant the moti

B. Deny the motion. These facts indicate the suspect was subjected to a 4th Amendment seizure, but that seizure did not escalate to the functional equivalent of custody prior to the question being asked. Accordingly, Miranda was not implicated even though the statement was in response to police questioning. The seizure was valid based on reasonable suspicion if not PC and therefore is not a poison tree.

Now assume when police conduct the post-arraignment lineup Bob's lawyer is present. Assume also that the victim did not know his assailant, but instead said he only had a brief look at him and didn't see him very well because it was dark. Prior to the lineup police showed the victim a photo array but the victim was uncertain whether any of the photos was of his assailant. The police then conduct the lineup. Although the victim indicated that the assailant looked "Latin" and had dark hair, Bob is the only one of the four men in the lineup with dark hair. The victim chooses Bob. Prior to trial defense moves to suppress the out of court ID. The court should: A. Deny the motion and admit the ID. B. Grant the motion and suppress the ID.

B. Grant the motion and suppress the ID. Because the lawyer was present, there is no 6th Amendment violation. However, this procedure was unnecessarily suggestive, and considering the weakness of the witnesses initial ability to ID the assailant, the suggestiveness appears to create an irreparable risk of misidentification. Accordingly, this is a due process violation and the ID is inadmissible.

On the evening of April 5, 2006, D was traveling on a Houston Metro Bus, when he pulled out a pistol and shot a fellow passenger in the head. D then fled from the scene and ran to a local Church. He pounded on the door, and a Priest opened the church and let him in. D was obviously distraught and, according to the Priest, he was almost in a "state of shock." D was crying, and when the Priest asked him what happened, D responded "I just shot a man. I don't know why - something just came over me and I felt like I had no control." D was subsequently arrested, and the Priest provided details of his statement to the police investigators. Assume after his arrest D undergoes a psychological examination. According to the report from the examination, D's IQ indicates he is in the bottom 15% of all tested adults; D's formal education ended after 9th grade when he dropped out of school; D has been unemployed for the past 4 years, and never held any job other than as a day laborer. The report also indicates that in the opinion of the examining psychologist, at the time of the shooting D was suffering from paranoid schizophrenia. D has been charged for attempted murder, and you are an associate worki

B. No No Miranda issue (no police questioning), no due process issue, because no government action. His free will may very well have been "overborn" by his mental disease, but absent government action, there is no DP basis to suppress.

Defendant is suspected by his neighbors of being a child molester. One night, after a group of his neighbors were drinking, they see him walking down the street to gather his mail. One of them invites him to have a beer in the garage. When he gets into the garage they close the door, grab him, and tie him to a chair. They then start beating him with fists and with a baseball bat demanding that he confess to his crimes. He says he will tell them what they want to know, and one of them records his statement on his phone. The recording clearly indicates defendant has been beaten up badly. The neighbors then send the video through an anonymous email to police detectives. Based on the video, police ask the defendant if he will meet with them at the station. He agrees to do so and goes to the station, where they tell him he is free to leave if he wants. Instead, he stays and tells them about being beaten by his neighbors. They then play the recording and ask him if what he said was true. Worried what will happen with his neighbors if he denies the allegation, he says "yes, it is all true." He is brought to trial based on the statements and other evidence and moves to suppress both statements.

C. Admit both statements. Private action, no matter how offensive, does not implicate due process. The statement made to the neighbors was provided on a proverbial "Silver Platter." Nothing in the police interrogation indicates a Miranda violation of coercion, and the suspect is not formally charged. Accordingly, there is no basis to suppress the second confession.

As to Jason's statement, his motion to suppress should be: A. Granted, because the entry by forcing open the door was not reasonable. B. Granted, because the police failed to read Jason his Miranda rights. C. Denied, because Miranda does not apply to the statement. D. Denied, because the statement was the product of a lawful public safety search.

C. Denied, because Miranda does not apply to the statement. This is another example of a spontaneous statement made after being taken into custody. Miranda requires custody plus interrogation. This statement was not in response to any interrogation. Therefore, there is no basis to suppress.

You are a prosecutor in a case involving a charge of drug possession with intent to distribute. The evidence you intend to offer against the defendant was discovered following a police search of the defendant's residence that led to the seizure of several hundred marijuana plants. Defense files a motion to suppress the marijuana. The search was based on consent of a co-tenant of the home. On the day of the search, police confronted the co-tenant in the driveway when he walked out of the house. Five officers confronted him, all wearing police uniforms. One officer had a shotgun; all the others had their weapons holstered. One police vehicle pulled up behind the co-tenant's vehicle in the driveway and remained there while police questioned him. The police presented the co-tenant with a "consent waiver" form, which informed the co-tenant of his right to refuse to grant consent to search, and then asked if the co-tenant would allow police to search the home. The co-tenant explained that he did not live in the home, but was visiting from Dallas and had been staying there for a week. The officer asked if he had a key to the home and if anyone else was home. The co-tenant responded, "Yeah, I h

C. Even if the judge determines the visitor did not have actual authority over the home, the evidence should be admitted so long as a reasonable officer in the lead investigator's position would have believed he did. D's admission he was growing marijuana in the home is inadmissible against him at trial. The test for valid consent requires that the individual granting consent have actual or reasonably apparent authority over the area. This was the holding in IL v. Rodriguez. In that case, the Court held that because the touchstone of compliance with the 4th Amendment is reasonableness, the fact that it turns out a person giving consent did not have actual authority of the area is not dispositive; so long as the police reliance on the consent was reasonable under the circumstances. Accordingly, this answer provides the accurate statement of the law related to the consent based search. In Simmons v. United States, the Court held that *testimony given by a defendant during a suppression hearing is inadmissible against him or her in the actual trial.* This rule is necessary to allow a defendant to provide testimony to support such a motion. However, the *testimony may be used to impeach the defendant's testimony if he testifies at trial.*

D is charged with burglary. Housebreaking is a lesser included offense. D moves to suppress a confession based on a M violation. The trial court denies the motion and admits the confession. The judge instructs the jury on burglary, and also the lesser included offense of housebreaking. D is found guilty of housebreaking. He appeals based on the Miranda issue. The court agrees that his confession violated M and that the trial judge erred in admitting it, and reverses the conviction. D is brought to trial again for burglary, and moves to dismiss the charge as a Double Jeopardy violation. The court should: A. Grant the motion. B. Deny the motion. C. Grant the motion, but only for the burglary charge and allow him to be retried for housebreaking.

C. Grant the motion, but only for the burglary charge and allow him to be retried for housebreaking. Because when he was found guilty of housebreaking and implicitly acquitted of burglary (meaning the State was unable to prove the case against him for that offense - even with the improper use of the confession), that means double jeopardy bars retrial of the greater offense, but the lesser offense can be retried because it was reversed for legal error.

Now assume that once D is at the police station and after he is booked, a detective has him brought to an interrogation room. The detective reads D Miranda warnings and asks D if he understands his rights and is willing to talk without a lawyer. D says, "Yeah, I understand this stuff but I'm not signing any form." The detective then lays out the evidence he says they have against D without asking any questions. This lasts for about 20 minutes. At that point, the detective says, "Why don't you just admit your role. That way you can explain whether it was your idea or Joe's." D then confesses but says he was just going along to help Joe and it was not his original idea to burglarize the home. Prior to trial D moves to suppress this confession. The court should: A. Suppress the confession because the detective violated Miranda by laying out the case against D prior to securing a Miranda waiver. B. Suppress the confession because D never expressly waived his Miranda rights. C. Admit the confession because there was no questioning. D. Admit the confession because the record establishes a valid Miranda waiver.

D. Admit the confession because the record establishes a valid Miranda waiver. Here, the suspect was subjected to custodial interrogation, and therefore compliance with Miranda is a requirement for admission of the statement. Miranda requires police to prove a knowing, intelligent and voluntary waiver of Miranda rights. Nothing in these facts indicates the suspect was coerced into waiving, so it is voluntary. Knowing and intelligent is established by proof the suspect understood those rights and made a decision to give them up by answering questions. Here, the suspect was advised of his rights and indicated he understood them; there is no requirement to prove an express or written waiver. When he then decided to answer questions, he made an intelligent decision to give up his rights. This is identical to *NC v. Butler*. No violation.

Defendant is brought to trial for burglary. The prosecution intends to offer several confessions into evidence. A police officer who arrived at the crime scene in response to the 911 call will testify that when she walked around the back of the house she saw someone coming out of a back door. That person turned out to be D. When the officer told him not to move he immediately started running and yelled, "Joe, get out. Cops!" The prosecution wants to use this statement as circumstantial evidence of consciousness of guilt. D argues that because he never had a chance to invoke Miranda rights the statement should be suppressed. The judge should: A. Suppress the statement because D was functionally in custody and the statement followed the officer's demand. B. Suppress the statement because it is being used to incriminate D. C. Admit the statement for impeachment purposes only. D. Allow the prosecution to use the statement in the case in chief.

D. Allow the prosecution to use the statement in the case in chief. These facts do not indicate an application of Miranda. First, the suspect was not in custody; in fact, he was not even seized because while there was a show of authority there was no submission. Second, the statement was not responsive to express or implied questioning. So the two triggering requirements of Miranda are not satisfied. There is no other basis to suppress this confession.

Joe is suspected of participating in an organized crime conspiracy. FBI Agent Brown visits Joe's place of work and asks if he is available to speak with him. Joe's boss says he is out to lunch, so Agent Brown leaves his business card with Joe's boss and says, "please tell him I would like to speak with him, and that he should call me." The next day, Joe surprises Agent Brown by showing up at his office. Brown says, "listen, I would like to discuss something with you - can we go chat in another room?" Joe says, "OK." Brown escorts Joe to an interrogation room, and when they enter Brown closes the door. She is alone with Joe. Brown tells Joe he is not under arrest, but she believes he is engaged in a criminal conspiracy with several known mobsters and that it will be in his best interest to explain his involvement. Joe denies any association with the people Brown identifies, and says he has done nothing wrong. Brown then says, "just so you know, we have taken some photos of you arriving at this office and sitting in here with me. It will be real easy for us to share these photos with some of your 'friends', and I am sure they won't be too happy knowing that you are cooperating with us." In

D. Be granted based on a violation of Due Process. This is the only basis to suppress. Although Joe may have been seized when Brown closed the door, he was not in custody because she made it clear he was not, and there is no other objective indication of custody. So no Miranda problem. He was just a suspect, so no Sixth problem. There is no FOPT issue. However, Brown essentially threatened Joe with violence at the hands of his suspected co-conspirators if he refused to cooperate. This is just like AZ v. Fulminante. And, the fact that Joe refused to confess until he was given time to consider the consequence of his refusal following the threat indicates that the police conduct overbore his free will.

John is arrested for burglary after coming to the police station voluntarily in response to a request from a detective over the telephone. At the station, John is immediately booked and jailed. Detective Smith advises John of his Miranda warnings. John states that he does not want to talk with the police until he speaks with his lawyer. John calls his lawyer, and later that day they confer. The next morning, Detective Smith has John brought to the interrogation room. Smith advises John of his Miranda rights and asks him if he is now willing to discuss the matter since he has met with his lawyer. John says he is not sure if he should talk and asks Detective Smith what he thinks. Detective Smith tells John the decision is entirely up to him. John then says he will discuss the matter and signs a rights warning waiver form. John then gives an incriminating statement. His statement includes details on where his burglary tools are hidden in the trunk of his car, which is parked outside the station. At the end of the interrogation, Smith asks John "is there anything else you want to tell me about?" John responds, "just to prove to you I am being honest, I also want you to know that I am the guy

D. Grant the motion to suppress both statements because Detective Smith did not honor John's invocation of his Fifth Amendment right to counsel, but deny the motion to suppress the tools. Once D asked for a lawyer he was "unapproachable." This means the waiver he made the next day was invalid, and all statements (remember, *Miranda is not offense specific*) are inadmissible. The tools are admissible - the statement provided PC, and because they were in a car no warrant required (Miranda is not a poison tree).

As to the Uzi automatic weapon, Jason's motion to suppress should be: A. Granted, because looking in the closet exceeded the scope of police authority. B. Granted, because once the object of the warrant—the brown suitcase—had been found and seized, no further search of the house is permitted. C. Denied, because the police were lawfully in the bedroom and the weapon was immediately identifiable as being subject to seizure. D. Granted, because looking in the box exceeded the scope of police authority.

D. Granted, because looking in the box exceeded the scope of police authority. By the time the officer in the bedroom opened the closet he already knew other officers had discoverd the suitcase. Accordingly, the warrant did not justify looking in the closet at that point in time. However, the facts indicate there was a valid basis to conduct a cursory protective sweep of the home to rule out the risk that one of Jason's partners might ambush police. This is authorized when police have reasonable suspicion others in the home may endanger them. Reasonable suspicion is established when the police suspicion is validated or based on some objective identifiable fact. Here, the fact that Jason worked with accomplices and kept a small arsenal in his home provide minimal objective basis for the suspicion. This is why going into the bedroom and opening the closet was reasonable. But the officer then exceeded the scope of the protective sweep when he opened the box; no person could fit in the box. Accordingly, he discovered the Uzi as the result of an unreasonable search and it must be suppressed.

Police officers have reasonable suspicion to believe that Sally's luggage, which she has taken from an airline baggage check area and is about to carry with her to a waiting taxi, contains drugs. Which of the following accurately describes the police officers' lawful options? I. Police may stop Sally before she places the luggage in the taxi, allow a drug dog to sniff the luggage, and if the dog alerts, seize the luggage for the time required with due diligence to obtain a search warrant. II. Police stop Sally before she places the luggage in the taxi, allow a drug dog to sniff the luggage, and if the dog alerts, search the luggage. III. Police may follow Sally out of the baggage claim area, wait until she places the luggage in the taxi, stop the taxi a minute later, and open the luggage to search for any drugs inside. IV. Police may follow Sally out of the baggage claim area, wait until she places the luggage in the taxi, stop the taxi a minute later, allow a drug dog to sniff the luggage, and if the dog alerts, open the luggage to search for any drugs inside. A. I, II, & III. B. I, II, & IV. C. I, II, III, & IV. D. I & IV. E. II, III, & IV.

D. I & IV. RS allows them to conduct a "brief investigatory seizure." If the dog alerts, they have confirmed their suspicion. However, with no warrant, they may not open the bag unless they have an exception for the warrant requirement. If they stop her in the terminal, they can't open the bag even with PC, but may detain the bag in anticipation of a warrant (remember, they could also tell her that while requesting consent). If they wait for the bag to be placed in the taxi, they may open it without a warrant ONLY after they establish PC.

Now assume that upon reviewing the warrant application, you conclude that the information presented to the magistrate was sufficient to establish probable cause to search for the burglary tools even without considering the admission. Will this change your ruling?

Yes - when a warrant is tainted by a predicate constitutional violation, it is presumptively invalid. However, if the court determines that the other information presented to the magistrate was sufficient to establish PC, the warrant will be upheld based on the *independent source exception.*

Now assume when police applied for the search warrant, they did not disclose any information related to the interrogation. Would this change your ruling?

Yes, this is *Murray v. United States*. Even if there is a constitutional violation, there is not a causal link between the violation and the issuance of the warrant. This means the warrant is based on independent information, and the *independent source exception applies.*

Now assume that when Brown returned to seize the truck Tom was home. Brown knocked on the door and Tom answered and, pursuant to Officer Brown's request, stepped outside to discuss the matter with Brown. Brown then arrested Tom for grand theft auto. When Tom asked why he was being arrested, Brown told him other officers were already in the garage pursuant to a warrant and found the truck. While Brown was walking Tom to the patrol car in handcuffs, Tom muttered, "I knew I should have taken the truck to my brother's farm." Prosecutors intend to offer that statement against Tom at trial, and Tom moves to suppress it arguing that he never waived his Miranda rights. The court should: a. Suppress the statement. b. Admit the statement.

b. Admit the statement. The Miranda warning and waiver requirement apply as a precondition to admission of a statement made by a suspect subjected to custodial interrogation. Both *Custody and interrogation are required to implicate Miranda.* Interrogation is formal questioning or the functional equivalent: words or actions a reasonable police officer would expect will elicit an incriminating response. In this problem, Tom was certainly in custody. However, Brown did not question him or interrogate him; the statement was spontaneous. Brown telling him about the activity of the other officers is like telling a suspect why he is under arrest: it does not qualify as functional equivalent questioning. Accordingly, Miranda was not triggered and the statement is admissible.

Officer Brown is investigating the theft of a red Ford F150 pickup truck, license plate A5Z-BK9. The owner reported the theft and that he suspects a guy named Tom stole the truck from the parking lot at a bar and provides Tom's address. The house has an attached garage. Brown goes to the address. Using binoculars from the seat of his patrol car to look through a broken window on the front of the garage door, Brown notices what looks like a pickup truck in the garage. By standing on the roof of his patrol car (parked on the street) he is able to get a sufficient angle to see that the pickup truck is red and to make out the first few letters on the registration sticker: A5, and what he thinks is either a 2 or a Z. Brown then walks up the driveway to the garage door to get a closer look and confirms the license plate matches that of the stolen truck. Brown the prepares an affidavit indicating the information obtained prior to walking up to the window, to include the fact that he was not sure whether the third digit was a 2 or a Z. He requests a warrant to search the garage. The magistrate determines the affidavit establishes probable cause and issues the warrant. Brown then seizes the truc

c. Deny the motion even though Brown violated the Fourth Amendment when he walked up to the garage door and looked through the window. This fact pattern is similar to the Murray "confirmatory search" case. There is no question Brown violated the Fourth Amendment when he walked up to the garage to look through the broken window. Because it was an attached garage it was part of the curtilage of the home. When police physically trespass on the curtilage to look for evidence it qualifies as an "investigatory trespass" search (unless the officer acts within the scope of social license, like knocking on the front door). However, the problem indicates that Brown's warrant affidavit did not include any information obtained from the trespass. In fact, Brown was honest about his uncertainty as to the 2 or the Z. Accordingly, the warrant provided an "independent source" for discovery and seizure of the evidence. Because there is no but for connection between the Fourth violation and the evidence, it is admissible.