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Calhoun_CrimProI_Answer_SP11

Calhoun_CrimProI_Answer_SP11 - \‘ ID CrimProl_LS...

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Unformatted text preview: \‘ ID: CrimProl_LS 1_Calhoun_Fina1_2 0 1131. Calhoun _________________—______________———————————— ID: (Exam Number) Exam Name: CrimPro1_LS1_Calhoun_Final__2011SL Instructor: Calhoun Grade: ____________—______________—_____—__————— Page 1 0'1 ID: CrimProl L81 Calhoun Final 2011SL Calhoun ._ - _ _ 2) ESSAY QUESTION Cell Phone Lo 5 The first issue is whether the police could lawfully look at the cell phone logs tracking Dan Defendant's (D) cell phone. The 4th amendment protects against unreasonable searches and seizures. A search occurs when someone has a subjective expectation of privacy in something and society would think that this expectation of privacy is objectively reasonable (Katz). Here D may have had a subjective expectation of privacy in his cell phone calls because people generally think that this information is relatively safe from observation by the public. especially now that we all have our own personal cell phones. Objectively. however. this is not a reasonable expectation of privacy because D's already shares his cell phone calls with a 3rd party - the phone company - so it is no longer private information. Since the officers weren't listening to his actual phone calls, they were just looking at the log of who he called, when, and from where, this is the information that he shares with the phone company so he does not have a reasonable expectation of privacy in it. This includes both the log of calls and the location that the calls were made from since the facts say that the phone company can locate the closest tower and also that the phone company ept the lo s. Therefore, this / earch san seizures, it —P was not a search. Since the 4th amendment only pro ct was lawful for the police to obtain this information. j Page 1 of a (Question 2 continued) ID: CrimProl_LS l_Calhoun_Final_2 0 llSL Calhoun —________—__________________—.————-—————— Entering Home Officers can enter a suspect‘s home to execute an arrest warrant against him. Officers can also enter a home when they have freely-given consent to enter. D's 10-year-old did not give them consent according to the facts; plus, children cannot give consent to search their parent's home, so he couldn't give consent even if he wanted to. Since neither consent nor an arrest warrant exists here, the officers unlawfully entered D's home. MED An arrest is reasonable is the officers have a probable cause and an arrest warrant or there are exigent circumstances. Probale cause (PC) for an arrest is a fair or real probability that a crime has been committed and that this person committed is. PC is determined by looking at the totality of the circumstances, including the reliability or veracity of any informants, the basis of the informant‘s information. police corroboration. and any other circumstances that could contribute to a finding of PC. Here the officers are using the fact that D's cell phone was used within 100 feet of 7 of the robberies in the previous 2 months. it is uncertain whether this would be enough information for probable cause. Depending on how spread out the robberies were and how much of a coincidence it would be that his cell phone was near the robberies. the court could determine whether or not this information alone is enough for probable cause. For example, if the robberies all occurred within a 2-block radius and D lived in the middle of that, then this would not be enough for PC. the facts do not give enough information Page 2 of 8 {Question 2 continued) ID: CrimProl_LS 1_Ca1houn_Final_2 O 1 ISL Calhoun for this. but this doesn't matter because it is still an invalid arrest based on the other prong: arrest warrant or exigent circumstances. The facts say no warrant exists. Additionally. exigent circumstances, which are some sort of emergency situation where time is critical and so the police cannot obtain a warrant, do not exist either. There is nothing in the facts that says that the officers had to arrest him at that moment. such as ereforé\ nt or exigent a danger to the public or the risk of imminent destruction of evidence. because there is possibly no probable cause, and definitely no arr circumstances, this arrest is invalid. Incident to a lawful arrest, officers can search the arrestee's person and the area within his immediate control for the purpose of officer safety and evidence preservation. The area within the arrestee's immediate control is the area in which there is a reasonable possibility that he can reach to obtain a weapon or destroy evidence. If the officers had lawfully arrested D. then they may have been able to search the drawer because it was in the table at which he was sitting so this was likely within his immediate control. However, since this was not a lawful arrest, then this was not a lawful search incident to arrest. Also incident to a lawful arrest, officers can do a cursory sweep of the area immediately ___—___—________________.——————-—-———————-—— Page 3 of 8 (Question 2 continued) ID: CrimProl_LS 1_Calhoun_Fina1_2 0 1 ISL Calhoun adjoining the place of the arrest from which an attack could be immediately launched by other suspects. Such a saerch can only extend to where people could be hiding. Therefore, since this is again. not a lawful arrest. and people can't hide in drawers, then this is also not a lawful cursory sweep. Furthermore, this is not a consent search, as discussed above. Therefore. the search of the drawer is unlawful. When evidence is found in violation of the 4th amendment, as the jew lry was ound in this case because it was an unconstitutional search, then it can be excluded under the Exclusionary Rule. Therefore. this evidence will be excluded pursuant to the ER. Computer search The issue here is whether the officers could lawfully search D's computer. Pursuant to the Katz rule above, D likely had a subjective expectation of privacy in his computer and his email. Even though someone could argue that his computer was turned on and opened to email. so he may have been exposing his email to the public and therefore ruined any subjective expectation of privacy, his computer was in his home and so he probably still thought that this information was private. It is unlikely that society would think this was an objective expectation of privacy. however. because like the phone logs. emails are shared with a 3rd party - the email provider and possibly even the internet provider. Google and all other email providers make users sign waivers before obtaining an email account that the emails that users send and receive will be stored on the provider's servers, thus making them available to the provider. j 3 like the / . (Question 2 continued) ID: CrimProl_LS1_Ca1houn_Fina1_20 1151. Calhoun was not a search because one doesn't have any objective expectation of privacy in his email since they are shared with a 3rd party. If the court found that this was a search. then the officers will likely argue that because the emails were open already and in plain view, then they could seize them. If officers are lawfully in a place when they see somethign that has an obvious connection to criminality, then they can seize it. Here, however. the officers were not lawfully in the house, plus the emails were not in plain view- the facts say that they had to scroll through the email log to find the email to e—Bay. Therefore. if this is a search becau e D had a reasonable expectation of privacy in his email, then the officers cannot search the emails because they do not have a search warrant and they cannot seize’the‘emails\ / because they were not in plain view (an exception to the search warr‘Ant/reduirement). ! r. Courts have held hat a search warrant is required to search a comp / Conversation in the car— "Maybe I did it" \ / \ w“ ,., The 5th amendment protects against compelled self-incrimination. The court interpretted this in Miranda and created the 4 Miranda rights that must be read to anyone who is in custody before he can be interrogated. The purpose is to mitigate the inherently coercive nature of custodial interrogation. Someone is in custody when he is formally arrested or when his freedom of movement has been restricted to such a degree that a reaosnable person would associate it with formal arrest. The facts say that D was arrested. so he was in custody in this case and so before he could be interrogated, the officers needed to give him his Miranda rights and then obtain a waiver Page 5 of 8 (Question 2 continued) ID: CrimPro 1_LS 1_Ca1houn_Final_2 O 11$L Calhoun of these rights. The officers correctly gave him his rights, so the question is whether 0 C they started interrogating him before receiving a waiver fo the guously so that %cer ° rights. Silence alone is not a waiver of one's A waiver of Miranda rights must be given una would understand that he was waiving Miranda rights. so when D said ing after receiving his rights. he did not waive them _,_’ so he could not be interrogated. Interrogation is either direct questions or the functional L. .F~/-"““\ equivalent- words or actions by the police that are reasonably likely to elicit an incriminating response. "We dont‘ need his statement...". while not a direct question. probably isn't enough to foreseeably elicit an incriminating response from D (the officer's subjective intent is not the standard, it is just foreseeability). The statement is preying on any susceptibilities that D has or likely to invoke some sort of emotional response, so most likely this is not the equivalent of a direct question. Since this is not interrogation. D's Miranda rights were not violated and so when he said "Maybe I did that one...". this was a voluntary statement and so it is admissible. D will argue that this is a fruit of the poisonous tree violation (FPT) because the officers did not have probable cause to arrest him (discussed above). When evidence is derived from the exploitation of illegally obtained evidence. it is tainted and suppressed. Here. D could argue that his statement "Maybe I did that one..." was the officers exploiting their earlier illegal arrest by arresting him without probable cause. getting him in the car, and then getting him to confess. Evidence that is tainted by illegal activity will only be admissible is there is an indepedent source for the evidence, if it would have inevitably been discovered, or if the casual connection is broken such that the _____—________——————-—————— Page 6 ol 8 (Question 2 continued) ID : CrimProl_LS 1_Ca1houn_Final_2 0 llSL Calhoun ______________________.__________—.____— evidence is attenuated from the illegal arrest. Here there was no independent source for the statement and there is no evidence that they would have gotten his statement inevitably— they didnt' even have probable cause to arrest him. Therefore, teh court must weigh the Brown factors to determine if the statement was attenuated from the illegal arrest, which include the time between the arrest and the statement, intervening circumstances, and the flagrancy of the police misconduct. Here the time was short, there weren't any intervening circumstances. and the police just barged into the house without PC or a warrant. so this statement could be suppressed under FPT. If the court found above that there was PC, then the arrest would be illegal solely due a lack of a warrant. An exception to FPT is for Payton violations (warrantiess arrests in someone's home). This exception says that if someone is arrested in his home witho a warrant, then his statements int eh home are suppressed but any statements e outside are not suppressed. If the police did have PC from the phone records then t exception would apply and this statement would be admissible as an excepti h to the F PT doctrine. After making the statement "Maybe I did that one..." the police clearly started \ interrogating D because they asked him a direct question. However, at that point h & tM muously in ed his Miranda rights by saying he needed to call his attorney, W they were required to stop questioning immedaitely. The facts show taht they did this. Informant Page 7 of 8 (Question 2 continued) ID: CrimPro 1_LS 1_Ca1houn_Final_2 0 llSL Calhoun ______________________—___—__.___———————— 6th amendment guarantees a right to counsel. This right attaches when formal proceedings against a defendant begin, such as in this case when D was indicted for armed robbery. Once the right attaches, a defendant is entitled to an attorney during all critical stages of the proceedings. Because the 6th amendment is protecting against the police deliberately eliciting statements from the suspect. one of these critical stages is during interrogation. Therefore, since D's right to an attorney had attached. during interrogation he was entitled to have an attorney present. Interrogation occurs whenever the police or a police agent is deliberately trying to elicit a response, so this includes undercover informants. Here, Judas (J) was an undercover informant, so he was an agent of the police. and he deliberately tried to elicit responses from D in his jail cell. Therefore. D was entitled to an attorney during this exchange and since one was not present. his statements made to J are inadmissible. The prosecution may argue that J was not deliberately trying to elicit a response and so there was no interrogation for which D's attorney should have been present. he was just asking sort of mundane questions. However, the court should find "How's it look?" as a statement that is designed to elicit an incriminating chause this is exactly the sort of question where D would weigh in on whether or not he th ght he would be guilty or innocent. Therefore, since his attorn 'was no present. ese statements are inadmissible. (/ Page 8 of 8 CrimProl__LS1_Ca1houn_Final_201151. Calhoun ID: __________————-—~—— END OF EXAM :' I l 5 1 1 ________________.__.__————~—- Page 1 of o ...
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