Moskovitz-2012-Fall-CrimProI-Answer

Moskovitz-2012-Fall-CrimProI-Answer - ID...

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Unformatted text preview: ID: CrimProl_LSN__Moskovit z_Final_2012 FL ID: ‘ (Exam Number) Exam Name: CrimPro1_LSN_Moskovitz_Fina|_2012FL Grade: Page1 of 14 Exam taken with SofT est v1 1 .0.735.93250 ID: CrimProl_LSN_Moskovitz_Final_2012 FL 1) ======== Start of Answer #1 (2924 words) ======== Motion to suppress the cocaine The judge will grant the motion to suppress the cocaine if it is the fruit of a constitutional violation of either Dork's (D) 4th or 5th amendment rights. To determine whether there is a 4th amendment right, we must determine whether the actions of Officer Nark (N) equated to a search and seizure, and whether that search or seizure was reasonable. Exclusion of evidence under the 4th amendment will only occur if there is a constitutional violation and if excluding the evidence will deter police misconduct. Whether Cokie (C) Sniffingmthe car was a search. in order for D to challenge the sniffing of the car, D would first need to show finding for a search of the car. Burden of proof for standing is on the defendant, and D would need to prove that he had a possessory interest of some sort of the car. If no proof is shown then the burden is not met, and D could not challenge the alleged search because it did not infringe on his personal rights. Here we have no evidence that D is the rightful owner, leasee, or even that D has any legitimate interest in the vehicle, therefore we must presume that D's burden is not met and that he has no standing to Page 2 of 14 ID: CrimProl_LSN_Moskovit z_Final_2 O 12 FL x challenge the alleged search. D may argue that his presence within the "x l :1. \f ~_M\_k . vehicle is sufficient, however, under rawlings v. Kentucky mere presence in a home is insufficient to show standing, therefore mere presence in a vehicle / should be no different. Assuming that there is standing to challenge the alleged search, C sniffing the car would only be a search if there is a subjective expectation of privacy which society deems to be reasonable, or if there is a trespass on a person's v effect. A car is considered on effect therefore if C touched the car it would j / be a search, but there is no evidence that the vehicle was touched therefore no search through trespass. D is likely to argue that he had a reasonable expectation of privacy of the scents within the vehicle, however there is no evidence that C sniffed scents which were Finlthe vehicle, only scents which were outside the vehicle. There is no reasonable expectation to things exposedmto the public therefore scents which have drifted from the vehicle are not private and no search exists. If there was a search, it would still need to be considered unreasonable in order for the exclusionary rule to apply. A search by a dog had been considered reasonable, because the dog is only identifying select illegal items, which means the intrusion onto ones privacy is minimal. The success rate being only 60% has no effect on the reasonability of the search, Page 3 of 14 ID: CrimProl__LSN_Moskovitz_Final__2012 FL because it is not increasing or decreasing the invasion of privacy, therefore the success rate is a question of credibility of the evidence not an issue of reasonability. Because there is no proof of standing, there is not likely to be a search, and even if there was a search, it is likely to be found reasonable, the evidence is unlikely to be suppressed because of C's sniffing the car. N almost opening the car door 9/ D may argue that when N "was about to open the car door" a search was performed, but this would run into the same problems as when C sniffed the car. Only if D showed standing to challenge the alleged search, and if N actually touched the car would there be a search. However, this alleged search would still be reasonable because the auto exception permits a search of a vehicle if there is probable cause to believe that evidence is hidden within the vehicle. Probable causevis a determined through the totality of the circumstances and is a determination of whether it is likely that there will be evidence of a crime that was committed, is being committed, or will be committed with in the area. Here we have multiple reports of drug dealing in the area, and a drug sniffing dog alerting to cocaine being within the vehicle. Through these two circumstances it is more likely than not that cocaine is within the vehicle, therefore it is likely that there is probable cause Page 4 of 14 ID: CrimProl_LSN_Moskovitz_Final_2012FL to search the vehicle. With probable cause, and the auto exception, the court is unlikely to grant the motion on these grounds. Seizure of D when D was running away D may argue that he was seized while he was running away, because a reasonable person would not feel free to leave when officers are opening the door of a car in which the person is in, but Hodari D states that no seizure occurs if the person does not submit to the of force or authority. Therefore D could not have been seized as he is running away because he is not submitting to the authority or free. Entering the lobby area of the complex D may try to argue that N entering the apartment complex was a search. Inorder to prevail on this argument, D must first prove he has standing to challenge the officers entering the apartment. This is unlikely because the area is Public housing. As public housing, anyone can enter or leave the common areas, therefore there is no reasonable expectation of priVacy of D against the officers entering the apartment complex. Speaking with the elderly woman in the complex If D was to challenge that speaking to the elderly woman was a search or seizure of the woman, the motion would not be granted on this argument Page 5 of 14 ID: CrimPro l_LSN_Moskovitz_Final__2 O 12 FL because D has no standing to challenge admissibility of evidence of N talking to another party. There is no evidence that D's rights have been violated in any way when an officer talks to another person. C sniffing around the apartment door D may argue C sniffingflthe‘door is a search. Again D would first need to show that he has standing to challenge the alleged search. Standing requires the defendantto show that they have a reasonable expectation of privacy, and that their constitutional rights have been infringed upon. If D owned the apartment, leased the apartment, was a frequent visitor of the apartment, or even an exclusive guest of the apartment then he would be able to prove standing, however based on the fact pattern, the only thing we know is that D is in an unlocked apartment, and that he had been holding cocaine found within the apartment for his buddy. This evidence does not show any connection of D to the apartment, therefore based on the facts given, D does not have standing to challenge the sniffing of the apartment. J.— However, assuming that D has proved standing to challenge the alleged search, he that the sniffing outside of the apartment was indeed a search. Like the sniffing of the car, if C touched the door to the apartment, then there would be a trespass. D may argue that he has a heightened expectation of privacy at a home and therefore sniffing intrudes Page 6 of 14 ID: CrimProl_LSN_Moskovitz_Final_2012FL on his privacy more than in a car, but this would not have an effect on the prior argument that the scents are not from within the property, but out in public. D may argue that the drug dog infringes on the rights of the property owner in a similar manner to what a thermal imager does, and the “gawk,” - . thermal imager is an unreasonable search, but the case law for a thermal imager specifically was used for sense enhancing technology. there the dicta a stated that if the technology is readily advisable to the public, then it may i / l / mans best friend since they have first been domesticated. The K9 scent [if f not be an unreasonable search. Here we have a dog; and dogs have been capabilities have never changed, we have only figured out how to train the dogs how to communicate their detections. Because the technology (dogs) has been around for so long, and dogs are readily accessible to the public, it is unlikely that society will find a subjective expectation of privacy against dogs to be reasonable. If it is not a reasonable expectation of privacy, then it is not a search. If it is considered a search, then the evidence would not be suppressed if it is a reasonable search. A search is reasonable if there is a warrant, or one of the exceptions to the warrant requirement are met. Here there is no warrant, but the exception of hot pursuit may come into play. The officers M _, were chasing a fleeing suspect. They saw D enter the apartment complex, and were informed that he had gone into a specific room. By going unto the room, they were in hot pursuit of the suspect they intended to detain. Page 7 of 14 ID: CrimProl_LSN_Moskovitz_Final__2012FL However, hot pursuit also requires probable cause to believe that the person would be in the area which they are Egg Under the totality of the circumstances test we would look at the fact which the officer has articulated and determine whether a reasonable officer with like training and experience of the searching officer, ould have probable cause to believe that the fleeing suspect was within the building. The facts which have been articulated are: N believed D committed a crime based on the actions of C, D's sudden flight upon observing the officers, the high crime area, N observing D enter the building, and an old lady telling N which apartment D went into. The old lady is acting as a witness to the event. D may argue that she is an unreliable witness because there have been multiple reports of drug dealing at the housing project, but there is no evidence that the old lady was involved in the drugs, and there is no evidence that N had any prior knowledge of the old lady being involved in the criminal underworld, therefore the testimony of the old lady is likely to be that of an ordinary citizen, and considered reasonable. further evidence of the reliability is that the officer was able to have a face to face interaction with the woman, therefore he was able to make an assessment of her credibility and determine subjectively whether she is credible or not. Because of the credibility of the witness should not be an issue, plus the other circumstances listed, it is likely that the court will find probable cause of D being in the apartment and therefore hot pursuit plus probable cause would make the search reasonable. Page 8 of 14 ID: CrimProl_LSN_Moskovitz_Final_2012FL Furthermore a defendant cannot create an unreasonable search by entering a home when they know that officers are pursuing the defendant, therefore entering the apartment cannot create an unreasonable search against D when he fled the officers and ran into the apartment. Because D has not proven standing for a search of the apartment, because sniffing the door is likely not a search, and even if it were a search, either the hot pursuit + probable cause exception, or the defendant creating the unreasonable search through flight into a home, means that the court is unlikely to grant the motion on these grounds. Knocking on the door '3‘] Knocking on the door is a search, because it is a trespass on the home of a person, but there is still the same issues of standing, and it is likely that the search would be reasonable under the same grounds for hot pursuit + PC, or flight into a home causing the unreasonable search. Furthermore PC is now stronger because the dog has signaled that there was drugs within the home. Opening the door and entering the apartment Page 9 of 14 ID: CrimProl_LSN_Moskovitz_Final__2012FL Opening the door and entering the property has the exact same analysis as before. Standing is not proven, and the trespass search would be reasonable under either the hot pursuit + PC exception or the defendant creating the unreasonableness. Arrest of D D may now challenge that his arrest was an unreasonable seizure. A reasonable seizure requires either a valid warrant, or probable cause. Because this is a residence, the officers would also have to show that an exigency exists for the entering of the home. Here there is no warrant, so N would need to show probable cause that D has committed, is likely to commit, or is committinga crime. Probable cause is determined through the totality of the circumstances test and requires that the officer articulate facts which a reasonable officer with like training and experience would be able to determine that there is a strong possibility that the person has committed a crime. Here N has articulated that a drug sniffing dog has detected a scent of cocaine within a vehicle which D was in, D has known prior arrests for drugs, the area is a known for narcotics sales, D had sudden flight when N attempted to enter the vehicle, and C detected drugs a second time when he sniffed the apartment door. With all of these circumstances there is likely to be PC to arrest for possession of the drugs. Page 10 of14 ID: CrimProl_LSN_Moskovitz_Final__2012 FL The seizure in a home would be reasonable because of the aforementioned exigent circumstances of either hot pursuit or defendant creating the unreasonableness by entering the home as officers approached. Because the arrest is likely to be considered reasonable, it is unlikely that the court will grant the motion upon these grounds. Search of the Pockets (( I in; N searching D's pockets is a search, because D has a reasonable expectation 62' l of privacy of his person, and he has standing because it is himself who is being searched. However the search will be found reasonable as long as the arrest was reasonable because of the Search Incident to Valid Arrest exception. A search of a person after a valid arrest is always considered reasonable; therefore this search will not be grounds for the motion to be \ approved unless the arrest was not valid. Search of the couch cushions D may assert that the search of the couch cushions was a violation of his rights, but he would first have to show that he has standing, which we have already determined there is no proof of D having standing to challenge a search of the couch. Furthermore it is likely that a search of the couch Page 11 of14 ID: CrimProl_LSN_Moskovitz__Final_2O 12FL cushions would be reasonable as a search incident to valid arrest because the reaching area of an arrestee is considered part of the incident to arrest search. here D was sitting on the couch, therefore searching the couch cushions would likely be found to be a reasonable search. 4 3,87 Seizure of the cocaine D may argue that the cocaine was unlawfully seized. Seizure of property occurs when there is an interference with a person's possessory rights to the item. Taking the cocaine from the cousin would therefore be a seizure, however there would again be an issue with standing because D has not \ 6;! i I! ‘ proven he has a possessory interest in the apartment, and seizures are Reasonable when an officer has probable cause to believe they are evidence of a crime. The bag of cocaine is evidence of a crime, therefore N has PC to seize it. Motion to suppress the statement: "I was just holding it for my buddy" Fruit of a prior violation If there is a violation of D's rights above, then the resulting statement w0u|d be a fruit of that violation. There are no intervening circumstances, and the tie between the statement and the prior acts is short, therefore it is unlikely Page 12 of14 ID: CrimProl_LSN_Moskovitz__Final__2 O 12 FL that there will be any attenuation. Miranda violation D may argue that there is a miranda violation. Miranda rights are required any time a person is partaking in a custodial interrogation. Custody is determined through either an arrest, or a functional equilivent. Here D was arrested therefore he was in custody. Interrogation is any express questioning, or any verbal/nonverbal actions by an officer which would reasonably be likely to elicit an incriminating response. There is no express R \ questioning, but there is the showing of the drugs. this is similar to laying a pile of furs in front of an arrestee, therefore it is likely that the court will find ' this to be interrogation. However, when an arrestee is partaking in custodial interrogation, what is required is the officer give the miranda warning, which is given here. THerefore there is only a violation if D did not waive his rights, or if D asserted his rights. A waiver must be knowingly and intelligently given. It can be found through either an express waiver, or an implied waiver. Here we have D nodding after reading the miranda rights, and D speaking to N W after reading the rights therefore an implied waiver will likely be found. “.5,” ..__mm__..~..s Mi“, J...»— Page130f14 ID: CrimProl_LSN_Moskovit z_Final__2012 FL D may have asserted his right to an attorney by his statement, however an M assertion of rights must be unambiguous. Here we have 2 sentences, on question "a lawyer?" "yeah that sounds good to me". because some may interpret this as an assertion of right to an attorney, while others may interpret it as an assertion that he knows his rights, there is ambiguity. When there is ambiguity, there is no assertion of rights, an officer does not have to ask if an assertion was made and can simply continue with the interrogation. Because the assertion was ambiguous, and there is likely to be an implied waiver, there should not be a miranda violation, and the Due process violation Was it voluntary ::==::== End of Answer ::==::== END OF EXAM Page 14 of14 ...
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