Calhoun-2012-Fall-CrimProI-Answer

Calhoun-2012-Fall-CrimProI-Answer - ID...

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Unformatted text preview: ‘ ID: CrimProl_LSl_Calhoun_Final__20lZFL ID: (Exam Number) Exam Name: CrimPro1_LS1_Calhoun_Final_2012FL Grade: Page1 of1 Exam taken with SofT est v2796 ‘ ID: CrimProl_LSl_Calhoun_Final_20lZFL 8) ======== Start of Answer #8 (1893 words) ======== Part III Was there a search of D's back yard? A search is a gov't intrusion upon a place that a person has both a subjective and objective expectation of privacy. The Katz test would have us look to factors such as the nature of the location, the efforts to increase privacy, the likelihood that the privacy would be breached despite the efforts, and the means of surveillance used by the govt. In this case, the location was the back yard of D's home. D took efforts to increase his privacy by having a high wooden fence surrounding his property over which people on the street could not see. Unfortunately for D, the likelihood that other persons could breach D's privacy despite his efforts are high in this case. The neighbor could have used a step ladder to see over D's wooden fence and therefore lowers D's objective expectation of privacy in this case. In fact, that is exactly what the officers did. They went into the neighbor's yard and used the neighbor's ladder. There is also case law that suggest aerial photographs, perhaps even from the neighbor's second story Window would not constitute a search nor would flying over the premises and looking down. In this case we have no facts that it would be unreasonable to fly at an elevation as to see the car in D's back yard. Finally, the police did not use any unreasonable means of surveillance such as thermo imaging. They used a step ladder and their naked eyes. The Jones test is whether the govt trespassed upon a person's constitutionally protected place (persons, places, papers, or effects) with the intent of finding something. In this case, although Page 1 of 7 (Question 8 continued) ID: CrimProl_LS l_Calhoun_Final_2012FL the police may have trespassed in the neighbor's yard, they did not trespass onto D's yard they saw the car in his backyard. D does not have standing to complain that the police tres sed onto the neighbor's yard. Neither the Katz or the Jones test would find that this was a search and so no analyses of wheth the search was unreasonable need be made. Consent to search D's home. Searching requires PC and a warrant or PC and a warrant exception. — W a ,7 .4, WV)... 77,, . Searching a home is usually considered the most sacred place with the most expectation of owevw case the wa I C . applies. The probable causflvas establish when the privacy and usually requires a warrant. PC when they saw the stolen sports car from the ladder in the neighbor's yard. The warrant exception of consent was given when D's wife (presumably a co-occupant of the house who had authority to give permission, or at least that the officers subjectively thought had the authority to give permission) was asked and permitted olic office to search the house for evidence 4 related to the stolen car. W The wrinkle appears after Officer Smith finishes his phone call to the towing company and D pulls up in another car with F. D asks what is happening and then revokes his wife's consent to search the house. Smith orders D out of the car, arrests, and handcuffs D. At this point, Jones returns from the house to tell Smith what he has found. This timing may be important to show the few seconds/minutes between D revoking his wife's consent to search and Jones exiting the ception consent ficers re onabl susp ion increased to / en/ 7 Page 2 of 7 (Question 8 continued) ID: CrimProl_LS l_Calhoun_Fin l/Léz’ngFL I house. /UlM M ./A When there are two co-occupants’to a home and one consents to search and the other says no, the / one refusing rules what the/police should do. The police cannot search the premises over the “ANNN‘N /, objection ogone occupant just b/c they have consent from another occupant. In this case, there > ,__......r\ was little time b/W D revoking his wife's consent and Jones coming out of the house. 6y bly, J nes had reasonably and legally : revoking his wife's consent. Seizure of D's person. A seizure of a person (custodial arrest) requires PC and a warrant or PC and a warrant exception. The PC to arrest D was when they saw the stolen car in his backyard. T"\ The warrant exception applicable here is arresting a person for a felony in public. D was in driveway, and not in his house at the time of the arrest. The arrest was reasonable a constitutional. Seizure of F. Immediately after placing D under arrest, F asked Smith if she could leave. Smith answered: "why don't you just stay here until we sort this out." There are three types of seizure of a person: casual encounter, detention, custodial arrest. The rule for if it was a detention is if a reasonable person in the same situation would feel free to end the encounter with the police. Smith arguably told F that she could not leave when she asked. F just witnessed D being put into handcuffs and a reasonable person in the same situation very well might not feel like they could break the encounter. F was detained. Page 3 of 7 (Question 8 continued) ID: CrimProl_LS l__Calhoun__Final_2 0 12 FL A reasonable detention requires reasonable suspicion. Smith would be hard pressed to articulate reasonable suspicion of F based on just being with D. On the other hand, D just arrived with F in another fancy sports car. Smith was at D's W/Wiling a fame: sports 0% _ / M 4]! fl III 7 Smith would have reasonable suspicion of F being involved but not PC. The detention ’ “ V. .......... ~—~-_~_____ _ may not have been reasonable based on whether Smith had reasonable suspicion of F or not. The coke and hubcaps found by Jones. Because of the close amount of time b/w D revoking his wife's consent to search the house and Jones exiting the house, the cocaine and the hubcaps would likely be ruled admissible as evidence in trial. ones was allowed to search the house for evidence of the stolen vehicle and only in places that could have evidence of the stolen vehicle. Evidence of a stolen vehicle could include large things like hubcaps, or small things like car keys or even documents that might be stored in a small drawer in the living room. Jones was reasonably searching for evidence of the stolen vehicle when he found the cocaine in the small drawer in the living room. The plain view doctrine states that if the police are lawfully present and find something in plain View with obvious criminality that it is reasonable and does not violate the person's 4th amendment rights. In this case, Jones was lawfully present in the house based on the consent of D's wife and lawfully opened the drawer to find evidence of the stolen vehicle when the cocaine was found in plain View. Cocaine has obvious criminality to it. The cocaine and hubcaps will likely be ruled as admissible as evidence at trial against D. Searching D's car. The police clearly searched the car and no analysis of whether it was a search Page 4 of 7 (Question 8 continued) ID: CrimProl_LS l_Calhoun_Final_2 O 2 / is necessary. A reasonable search requires PC and a warr tor PC and a warrant ex ption. Here, D was arrested and in handcuffs. This means that e was secured and so searching the vehicle pursuant to the Search incident to arrest exception would not be valid. However, there is another exception besides Search incident to arrest that might apply here. The vehicle warrant exception looks at the inherent mobility of vehicles, the diminished expectation of privacy in vehicles, and that the entire vehicle may be searched. The probable cause to search this vehicle at this time was the stolen vehicle in the backyard, the hubcaps found in the house, the cocaine found in the house and the fact that this was a 2d fancy sports car. The officers had PC to search for any 1dence of stolen vehicles or cocaine. The cocaine found in D's glovebox will likely be ruled as admissible as evidence against D. The search of F's purse will probably be ruled as unreasonable. When F exited the vehicle she took her purse with her and so the purse is no longer a passenger container of the vehicle. A reasonable search requires PC and a warrant or PC and a warrant exception. There was no warrant. When they searched F's purse, F haan been arrested and so the exception of Search incident to arrest would not apply. The contents of the purse were not in plain View. F did not consent to the search of her purse. The state may argue that PC was established when Jones found 2 ounces of coke in the glove box of the vehicle that F was just in with D. The state might cite to cases that talk about co-occupants of a vehicle often have a connected/common enterprise with each other and the case where evidence was found in a car with 3 subjects and the court ruled that there was PC to arrest any and all of the occupants of the vehicle. Even if the state Page 5 of 7 ( Question 8 continued) ID: CrimPro l_LS l_Calhoun_Final_2 O 12 FL were to successfully show PC was established no warrant exception applies here and so the ounces of cocaine found in F's purse would likely be excluded at trial under the exclusio ary rule. F's confession that the coke in the purse was hers. For Miranda rights to apply, the subject must be in custody and the police must be explicitly questioning the subject or the functional equivalent (words or actions likely to elicit an incriminating response). Here, F is detained but not in custody. She had not been Mirandized b/c she was not arrested at this point. The State will likely argue that b/c F was not arrested, Miranda was not necessary and therefore, there was no violation of F's Miranda rights under the 5th amendment. Where detention becomes a custodial arrest depends on factors including how long the questioning lasted, if questioning techniques were used, if the subject was moved to a more secure location, etc.. Here none of those factors exist. This is not the end of the discussion. F would likely argue that the only reason the statement was given was b/c the police had already discovered the cocaine in her purse. This discovery however, was an unreasonable search and seizure as explained above and the statement given was fruit derived from the unreasonable search and should be excluded as fruit of the poisonous tree under the exclusionary rule doctrine. F's confession that the coke in the purse was 3 hers will likely be ruled as inadmissible and excluded as FOPT. D's right to counsel and right to silence. D was Mirandized by Jones. To invoke your Miranda right to silence, simply not saying anything is not enough. Invocation of Miranda rights, either as to silence or to counsel, must be express and explicit. Asking police if the subjects lawyer is Page 6 of 7 (Question 8 continued) ID: CrimProl_LS l__Calhoun_Final_2 012FL outside is not expressly invoking the subjects right to counsel. In the present case, D states: "If you get me a lawyer I will talk." This statement is not express and explicit of either the right to remain silent or the right to counsel. In fact, after Jones asks: "If you’re willing to tell me everything why not tell me now?" D states that he guessed that would be okay. This is a clear and intelligent waiver of his Miranda rights. The confession of D after being Mir lzed w1 ikely be ruled as admissible by the court. / ::==:::: End of Answer :====::: Page 7 of 7 ID: CrimProl_LS1_Calhoun_Final_2 O 12FL END OF EXAM Page 1 of O ...
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