Criminal Procedure
Fall 98
Fortune
You have 2 and ½ hours for the examination. The examination is worth 70 points. Question 1: 40 points; Question 2: 20 points; Short answer: 10 points total (1 point each). Budget your time accordingly. Put exam # and last 4 digits of SS # on bluebooks. Write every other line.
Honor Code notice and pledge
The College of Law Honor Code prohibits cheating on examinations. The Code requires students to report cheating. Failure to report cheating is a violation of the Honor Code. By turning in this examination, I pledge that I have neither given nor received any unauthorized aid on the examination.
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Question 1 (40 points)
Robbery/homicide in a Taco Bell restaurant in which the cashier was killed and $200 taken. The only witness was Bobby Brewer, a bystander who saw a man run from the restaurant and drive off in an old black car. The next day the Metro Police received an anonymous tip that Chad Murray was the perpetrator. Murray had just been released on parole on a conviction of armed robbery; Anna Murray, a resident of Metro City, was listed as Chad Murray's next-of-kin. A 1979 black Buick was registered to Anna Murray.
Five armed Metro Police went to Anna Murray's residence at 2:30 pm. The Buick was on the street and a ski mask and gloves were on the floor of the car. The police entered and found Chad Murray asleep on the sofa. They woke him and he confessed to the robbery and homicide, committed with a gun belonging to his mother, Anna Murray.
The police searched the bedroom and found $150 in small bills and a check made out to Taco Bell in the sum of $9.20 drawn on the account of Claude Erskine.
Murray told the police he had thrown the gun in a storm sewer opening in the street in front of the Taco Bell. The police searched the sewer and found the gun. Ballistics identified the gun as the murder weapon.
Murray was taken to jail where he was given his Miranda warnings and signed a written confession that he committed the robbery and shot the cashier. Murray was put in a lineup and identified by Bobby Brewer as the man running from the Taco Bell.
Murray filed a suppression motion to suppress his statements, the mask and gloves, the money and check, the gun, and the lineup identification. You are the judge. Rule on the motion on the basis of the following witness statements:
Pat Roberts
I am a detective with the Metro City Police Department with 10 years experience. In the early morning hours of June 10 there was an armed robbery/homicide at a local Taco Bell, in which the cashier (the only person in the store) was murdered. The crime was reported on a 911 call placed by Bobby Brewer, who had driven in for a taco, seen a man (male white, twenties) run from the restaurant, jump in an old black car, and drive off at high speed. Brewer entered the restaurant, found the clerk dead and the cash register open.
I was called immediately. Crime scene investigation revealed only that the clerk had been killed with a .38 bullet. Brewer was interviewed but added little to his 911 call, describing the assailant only as male white, twenties, medium build, dark clothing.
That day (June 10) we began going through a list of possible suspects. At about 1:30 that afternoon I took an anonymous call that Chad Murray had just been paroled and had committed the crime. Investigation quickly disclosed that Murray had been convicted six years before for armed robbery of a Convenient store, that he was male white 28 years old, and that his mother Anna Murray lived at 220 West High in Metro City. A records check disclosed that Anna Murray owned a 1979 Buick Riviera.
I went immediately with a number of other officers and uniformed police to 220 West High. The Buick was parked on the street. Its doors were not locked. I opened the car and looked around. A dark ski mask and rubber gloves were on the floorboard. I took them.
We knocked on the door and announced our presence. There was no answer. I tried the door and it was open. We entered and found Murray was asleep on the sofa. We woke him and questioned him about the robbery. He admitted the robbery and told us the money was in a dresser and he had thrown the gun (which belonged to his mother) in a storm sewer outside the Taco Bell. We found $150 in small bills in the dresser and a check for $9.20 dated the day before and made payable to Taco Bell. We searched the rest of the house for other evidence but didn't find any. We arrested Murray and took him to the station.
I then went to the Taco Bell and searched the storm sewer in the street opposite the store. The gun was lying on the floor of the sewer. I think we would have searched that sewer opening anyway.
At the station I Mirandized Murray and he waived his rights and made a full confession. This occurred about an hour after his arrest. I then put him in a lineup for the witness, Bobby Brewer, who positively identified him.
Chad Murray
I'm 28 years old and currently a resident of the Metro City Jail. Six years ago I committed an armed robbery and received a ten year sentence. I was paroled on May 15 to return to Metro City. I took a room at the Terrace View motel but I sometimes stayed at the home of my mother, Anne Murray at 220 West High Street. She let me use her spare bedroom when I wanted to spend the night.
I couldn't find work so I decided to rob a fast food restaurant. On the night of June 9 (early morning hours of June 10) I took my mother's gun (a .38 revolver) and my mother's car -- a 1979 black Buick Riviera -- and drove to the Taco Bell on Beltline Highway. I waited until there were no customers in the store and went in to rob the clerk. I wore a ski mask and gloves. I thought the guy was going for a gun so I shot him, took the money from the register and ran out. I didn't see anyone. I threw the gun down the nearest sewer, drove to my mother's house, put the money in a dresser in the room I was using and went to bed. I didn't realize I had taken a check when I grabbed the cash.
That afternoon (June 10) I was asleep on the sofa in Mom's house when the cops woke me up. I never heard them knock. There were about five cops in the living room yelling at me. I was just coming out of a sleep and didn't quite know what was going on. I don't think I told them anything but they say I admitted the crime. I'm not sure what I said. They started tearing the house up and found the money and a check in the dresser. They cuffed me, took me downtown without any shoes, put me in a room, and read me my rights. I figured the cat was out of the bag -- they had the gun and the money -- so I waived my rights, agreed to talk and made a full confession.
They put me in a lineup and told me I was picked out by some guy who was in the Taco Bell parking lot when it happened.
Question 2 (20 points)
Sheila Carter is charged with killing her son, John, age 6 and daughter Sara, age 4. On the morning of September 15, the police received a 911 call from Ms. Carter saying that a man had hijacked her car as she drove to the mall with her children. She gave a general description of the robber. That afternoon the police found the car in a shallow pond about a mile away. John was in the car drowned. Castings were taken of muddy footprints on the bank. The police obtained a search warrant for Ms. Carter's home. When they arrived Ms. Carter and her brother, Terry Carter, were present. The police searched the home and found shoes matching the footprints in Ms. Carter's bedroom closet. Later mud particles matching the mud on the bank was found on the shoes.
Detective Jouett Gilbert arrested Ms. Carter for the murder of John. Terry Carter told Sheila Carter not to say anything, he would get a lawyer.
Detective Gilbert took Ms. Carter to the jail for booking. After booking he took her to an interrogation room and read her the Miranda warnings. At this point Jailer Spangler whispered in Gilbert's ear that a public defender was on the phone to say that he represented Carter and wanted to speak to Carter. Gilbert interrupted the interview, telling Ms. Carter he had to take a call. He told Steve Stalls, the public defender, that he couldn't speak to Carter on the phone but could visit her. Stalls instructed Gilbert not to question Ms. Carter. Gilbert returned to the interrogation room and the following is the tape of the ensuing dialogue:
G: Do you understand the rights I've just read?
C: What do you think I did -- kill my own child?
G: Ms. Carter, are you willing to talk to us -- help us find your daughter?
C: Yes, yes. Should I wait for a lawyer? My brother said he would get me a lawyer.
G: Ms. Carter, we need to find your daughter.
C: Who was that on the phone. Was that my lawyer?
G: No. It's a public defender.
C: What's that?
G: A lawyer appointed by the court. Do you want to talk to the public defender?
C: I don't know.
G: All right. Do you have any objections to talking to me? It's up to you. You know what our job is. We need to know what happened and that's basically it. We don't want to force you to do anything you don't want to do.
C: I guess so. I don't care. It's not in writing. I'm not going to sign anything.
G: That's okay. Ms. Carter we know you drove that car into the pond. Footprints matching your shoes were at the scene. Why did you do it?
C: I don't know. I just panicked. It was pressure, terrible pressure, and John was crying and all of a sudden I had done it. I let the car roll into the pond. I didn't mean to kill him. I tried to get the door open and I couldn't.
G: Ms. Carter, WHERE IS YOUR DAUGHTER? WHERE IS SHE?
C: My brother said he would get me a lawyer. Where's my lawyer? I shouldn't say anything.
G: TALK TO ME!! MS. CARTER, WHERE IS YOUR DAUGHTER? IS SHE DEAD? DID YOU KILL HER?
C: Yes, yes, yes. She was crying and I hit her and I kept hitting her. She quit crying and she wasn't breathing and I put her out in the woods.
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Sheila Carter will move for suppression of the italicized statements. Analyze the fact situation, identifying the grounds for suppression and the court's likely ruling in light of the following witness statements:
Sheila Carter
On the morning of September 15 I lost control of myself and killed both my children. I was driving to the mall with my children, Sara, age 4, and John, age 6. Sara was crying over something and wouldn't stop. I slapped her and she cried harder. I hit her with my hand and she must have hit her head on the doorknob. She quit crying and I couldn't get her to wake up. I left her in the woods. By that time John was crying and I got out of the car and let it roll into a pond. I didn't mean to kill him. I jumped in the pond but couldn't get the door open.
Detective Gilbert took advantage of me. He didn't tell me a lawyer wanted to see me. I didn't know what a public defender was. I didn't know Mr. Stalls wanted to see me and didn't want me to say anything.
Furthermore I thought if it wasn't in writing it couldn't be held against me. It's just not fair.
Detective Gilbert yelled at me, scared me, wouldn't wait til my lawyer got there.
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Jouett Gilbert
I am a detective with the Metro City Police Department. The tape accurately reflects what occurred between me and Sheila Carter. I never agreed with Steve Stalls that I wouldn't interrogate Sheila Carter. I did tell him he couldn't speak to her but he could see her. I didn't say anything when he told me not to speak with her.
I don't think she ever asked for a lawyer. She was advised of her rights, waived them, and told us she had killed both children. I would have questioned her even if she hadn't waived her rights. This was an emergency. We didn't know if the little girl was alive or dead.
Steve Stalls
Once again I am frustrated by the deceit of the Metro Police Department. When I got the call from Ms. Carter's brother I knew Ms. Carter needed help immediately. It's true I hadn't been hired or appointed but in my opinion it was my duty to intercede at the request of her brother.
I called the jail and got Detective Gilbert on the phone. He told me I couldn't speak to my client but I could visit her. I told him specifically not to question her til I got there. He said, "okay.okay." By the time I arrived she had confessed.
3) Short answer (one point apiece)
1) What is the difference between the objective and subjective approach to entrapment?
2) A parolee is arrested for possession of cocaine and the state moves to revoke his parole. What is the rationale for not applying the exclusionary rule in the parole revocation hearing?
3) Assume a search pursuant to a warrant. Name at least two of the exceptions to the "good faith" rule of Leon v. United States.
4) What is the rationale for the Court's holding that the 4th Amendment is not violated by the secret recording of a conversation by one of the parties (i.e Linda Tripp) to the conversation ?
5) What is the difference in scope between a Terry "search" of a person for weapons, and a search of a person incident to lawful arrest?
6) In considering the admissibility of identification procedures (lineups, showups, photospreads) what is the significance of the attachment of the right to counsel?
7) Under what circumstances does the Due Process Clause require exclusion of an unnecessarily suggestive identification (for example, a one person showup)?
8) In construing the privilege against self-incrimination, the Court has developed a number of exceptions to the proposition that a person cannot be compelled to produce incriminating evidence. Name at least two exceptions.
9) A defendant is in custody and asserts his right to counsel. What is the difference, if there is a difference, between a 5th amendment assertion (Edwards v. Arizona) and a 6th amendment assertion (McNeil, Jackson)?
10) Why does a majority of the Supreme Court consider Miranda violations to be less serious than coerced confessions?