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FACTS

On January 1, 2019,

Police Officers Batman and Robin were out on patrol. They were in uniform and in a marked patrol car. They were 15-year veterans of the Gotham County Police Department and tonight, they were assigned to conduct enforcement in downtown Gotham, an area plagued by a recent surge in gun violence and the presence of narcotics. The Officers had an abundance of experience and training in the identification, observation, recovery, and testing of guns and drugs.

At around 9:00 pm, Officer Batman parked his car just up the block from 225 Eastview Drive, a public building known for gang and drug activity in Gotham County, New York. It was a clear, bright night; the moon was out and the block was well lit with street lights and the vehicle's headlights. There was nothing blocking the officers' view. The officers then had the following conversation:

Conversation 1:

Batman: What do you think, Robin, let's arrest someone tonight. I'm going to park right here, and we'll just hang for a bit. Knowing this place, something is bound to happen.

Robin: Yeah, I don't love this post, but that's what the boss wants. Let's watch this building and see if anyone does anything.

Batman: Oh, look who is coming out of 225. It's our favorite duo, Joker and Penguin. I wonder what they're up to tonight, I doubt they're doing homework. You see that bag Joker has? I'm thinking gun or drugs. Robin: I didn't even realize Joker was back out of jail already, how time flies. I see the bag, can't see what's in it, but it looks heavy.

Batman: Ok, keep your eyes peeled. Any sudden movement we take action.

For the next few minutes, Officers Batman and Robin sat in their car and watched Joker and Penguin. Joker and Penguin, two friends and long-time members of the Touro Gang, exited the front of the building, sat down on the front stoop and were just talking, hugging and high-fiving. Joker was carrying a black duffle bag over his shoulder and put it down on the ground between himself and Penguin. The two kept gesturing to the bag and smiling, but never opened it.

After a few minutes, Joker took out a cell phone from his pocket and started playing on it with both hands. His full attention was to his phone. He was taking selfies, texting, and browsing the internet.

After the passing of some time, Penguin got bored of watching Joker surf the internet and sought his own entertainment. Penguin proceeded to reach into his pants pocket and remove a large clear zip-lock plastic bag, reached in and pulled out some of the contents. Robin could see that the contents of the bag were green and leafy and several ounces in weight. His training and experience led him to believe that the bag contained marihuana but took no immediate action. At that point, Penguin went into a side pouch of the bag, removed a lighter, then smoked a marihuana cigarette. Both Officers Batman and Robin smelled the odor of marihuana. The aroma filled the street.

After the Penguin took a few puffs, Joker, who was not smoking, looked up from his cell phone and saw the officers. They made eye contact. Officers Batman and Robin activated their vehicle's turret and police lights, pulled the vehicle up a few feet to the stoop and exited their vehicle. Officer Robin had his hand leaning on his firearm, but no weapons were drawn, and Officer Batman was merely holding his flashlight. As the two officers came to within a few feet of Joker and Penguin, Joker put his phone away. Officer Batman asked the two men sitting on the stoop if they had a minute to talk and Joker said, "not to the cops, let's go!" Joker grabbed the bag and proceeded to run up the block. Penguin, still holding his marihuana, followed.

At that moment chased Joker and Penguin while shouting "stop, police!" At some point, Joker, in an effort to lighten his load and outrun the police, ditched the black bag he was holding. He threw it off to his side during flight, tossing it over a fence onto a neighboring yard, never even looking back to see it land. Within second, Joker and Penguin (hereinafter referred to as "the Defendants"), were ultimately apprehended by the officers around the corner. The Defendants were handcuffed, told to stand still and not to move. Officer Robin frisked Defendant Joker. During his frisk, Officer Robin felt a hard object in Defendant Joker's waistband. The following conversation ensued:

Conversation 2:

Joker: Why are you stopping me. Can I go?

Robin: In a second. First, I have to make sure you don't have anything on you that you shouldn't have. Joker: You don't have probable cause to stop me. All I was doing was playing on my phone.

Joker: This isn't fair, man.

Robin: Life isn't fair. What's this?

Joker: I don't know what you're talking about.

Robin: It feels like a gun. Do you want to start talking?

Joker: Ok, you got me. I carry it for protection.

Robin: Great, well now you're under arrest.

At that point, Officer Robin formally recovered the gun. While that was occurring, Officer Batman was frisking Penguin, recovered the bag of marihuana from Penguin's pocket and the still-lit marihuana cigarette from Penguin's hand. The following conversation followed:

Conversation 3:

Batman: Where is your id?

Penguin: In my wallet. I think I dropped it back on the stoop where I was sitting.

Batman: Do you know why we are stopping you?

Penguin: There is no way you could see my weed from where you were parked.

Batman: I'm a superhero. I see everything. You have anything on you that you shouldn't have? Robin: Just my weed. I don't have any weapons or anything.

The two Defendants were placed in the police car. Officer Batman then drove everyone back to 225 Eastview Drive to retrieve Penguin's id and to investigate the black bag. When they approached 225, the following conversation occurred inside of the police car:

Conversation 4:

Batman: Ok, here is the stoop. Is that your id?

Penguin: Yeah, that's it over there, next to that bag.

Batman: Is that your bag?

Penguin: Nope. Never seen that bag before.

Batman: You sure? I saw you reach into it before when you took out that lighter.

Joker: Not me. You saw wrong. You better take off that mask and start wearing glasses.

Conversation 5:

Robin: What about you, Joker? Is that your bag?

Joker: You already got my gun. Now you're going to question me about that bag. Not mine.

Robin: I saw you holding it. It was in your hand until you literally threw it away when you ran from us. Joker: That bag ain't mine.

Robin: So, you and your boy Penguin have no idea who this bag belongs to. You expect me to believe that? Joker: I'm tired of you. Can I get my lawyer now?

Robin: Ok, you don't want to talk to me. That's fine, but I'm still checking that bag.

             


At that point, Officer Robin remained in the police car with the Defendants and Officer Batman got out and approached the bag. Batman unzipped it, turned it upside down dumped the contents out onto the street - a brick of cocaine fell out. Officer Batman recovered the brick, got back into the police car, turned around to face the Defendants, wherein the following conversation occurred:

Conversation 6:

Batman: Ok, guys. Let's get straight to the point. Who does this belong to?

Robin: If neither of you fess up, you're both getting arrested for it. Now or never, boys.

Joker: Ok, fine. The bag is mine, so is the brick. Don't arrest Penguin, he had nothing to do with it. Batman: Good answer.

Arrests:

The two Defendants were arrested and removed to Gotham County precinct for booking and processing.

• Defendant Joker was charged with Criminal Possession of a Firearm and Criminal Possession of

Controlled Substance with Intent to Sell.

• Defendant Penguin was charged with Criminal Possession of Marihuana.

Procedural History:

• January 1, 2019, the Defendants were arraigned in Gotham County Criminal Court. They pled not guilty. The People declined to serve any notices on the Defense at the time of arraignment and instead, reserved notices.

• January 13, 2019, the People served statement notice pursuant to CPL 710.30(1)(a) for each of the above statements.

o The Defense objected to the late notice; they assert that any and all notice should have been served and filed on January 1, contemporaneously with the arraignment.

• March 1, 2019, the Defense served an omnibus motion on the People, challenging the lawfulness of the entire encounter of both Defendants and accordingly, seeking suppression of all evidence, namely, the physical evidence and all statements.

o The Defense's motion consisted of two items: (a) Notice to the People; and (b) a written memorandum of law, signed by the Defense attorney.

     


QUESTIONS

Question 1 - Defendant Joker

(a) Discuss the lawfulness of the police's initial stop of Defendant Joker. Please analyze the street

encounter. What 'level' was it? Was there a seizure? Was it lawful? Why or why not?

(b) Discuss the recovery of the firearm from Defendant Joker's person. Was it lawfully recovered?

Should it be suppressed? Why or why not?

(c) Please analyze Defendant Joker's confession to the gun in Conversation 2. Was the statement

lawfully obtained? Will it be admissible in the People's case-in-chief? If so, under what theory? If not, why? (d) Please analyze Defendant Joker's confession to the cocaine in Conversation 6. Was it lawfully

obtained? Will it be admissible in the People's case-in-chief? If so, under what theory? If not, why?

Question 2 - The Penguin

(a) Discuss the lawfulness of the police's initial stop of Defendant Penguin. Please analyze the

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