CRIMINAL PROCEDURE

S95-- FORTUNE

May 5, 1995

You have three hours for the test. Closed book and notes.

Please write on every other line. Question A (25 points -- no

more than an hour) is a traditional essay question. Question B

(50 points -- an hour and a half) is a "directed essay" question

consisting of twelve sub-parts. In answering Question B there's

no need to repeat yourself -- you may incorporate by reference

arguments previously made. Question C (10 points) is short

answer, to be answered in a sentence or less. You already have 15

points toward your final grade.

A): (25 points) The state indicted Clark and Nutter for

possession of marijuana with intent to distribute. The following

facts are stipulated:

l) On Jan. 8 at about 10:00 pm on a two lane highway in

Rural County, a dry county, Trooper Keith Taylor began following

a 1988 Ford occupied by two long-haired white males on the

suspicion they might be transporting alcohol in a dry county.

2) The driver of the 1988 Ford immediately slowed from 60

mph to 40 mph, which caused Trooper Taylor to believe the

occupants were engaged in some kind of illegal activity.

3) Trooper Taylor bluelighted the car and it stopped.

4) The driver, Clifford Nutter, had only a learner's permit,

which was valid only when a licensed driver was in the car. The

passenger, Philip Clark, did not have a driver's license.

Clifford Nutter stated that the car belonged to his brother,

Frank.

5) A license search indicated no warrants for the two men

and indicated that the car was registered to Frank Nutter.

6) On the back seat of the car, in plain view, were three

packages wrapped in brown paper.

7) When asked what was in the packages Nutter stated

clothes. Trooper Taylor picked up the packages and shook them.

The packages were heavier than they should have been if they

contained clothes.

8) Taylor asked Nutter and Clark if he could open the

packages. Clark said it was okay with him because they weren't

his. Nutter said he didn't want the packages opened.

9) Taylor arrested Nutter for driving without a license and

told Clark that he would take him home. Taylor placed Nutter in

the rear seat of the cruiser (behind the screen) and Clark in the

front seat.

10) Taylor then returned to the 1988 Ford and opened the

packages. Each package contained ten pounds of pressed marijuana

double-wrapped in plastic.

11) Kentucky State Police procedures provide that when there

is no authorized driver for a vehicle that the vehicle can either

be impounded or left alongside the highway. If impounded all

contents of a car are to be inventoried.

12) Trooper Taylor made no attempt to contact Frank Nutter

nor did he ask Clifford Nutter what he wanted to do with the car.

The car would not have posed a safety hazard if left on the

highway.

13) After discovery of the marijuana Trooper Taylor arrested

Clifford Nutter and Philip Clark for possession of marijuana.

Clifford Nutter and Clark have moved to suppress the marijuana.

Consider all issues raised by this problem. State your

assumptions clearly.

B): (50 points) Frank Nutter (Clifford's brother) has been

indicted for capital murder following the discovery in the trunk

of the car referred to in Question (A) of clothes allegedly

belonging to the victim of a kidnapping/rape/murder. After

arresting Clifford Nutter and Philip Clark for trafficking in

marijuana, Taylor asked Clifford what was in the trunk. Clifford

replied that he didn't know because he had just borrowed the car

from his brother. Taylor said, "Well, I'll have a look, okay?"

and Clifford replied, "Okay." Taylor opened the trunk and found a

duffle bag containing clothes. He opened the bag and found a torn

dress and women's undergarments, which appeared to be

bloodstained. Clifford and Clark denied any knowledge of the

items.

l) The clothes are important evidence against Frank Nutter and he

has moved to suppress them. Discuss.

After discovery of the clothes, Detectives were immediately

called in and they tentatively connected the items with the

disappearance of Carla Peterson, a Convenient store clerk, three

weeks before in Urban County. Clifford provided his brother's

address (Apartment # 3, 2120 Western Road, Urban City), which

corresponded to the address on the registration. Clifford

described his brother as male, white, 5'10", 160 pounds, 25 years

old, mustache, dark hair. Doug Dixon, a customer who was the

last person to see Carla Peterson on the night of her

disappearance, saw a young man enter the Convenient store as he

left. Dixon described the man as male, white, 6'0", about 20,

mustache, dark hair.

2) Detective Hardy and Officers Sims and White went immediately

to Apartment # 3, 2120 Western Road, arriving there about 2:00

am. Hardy knocked and the following dialogue took place:

Sleepy voice: Who's there?

H: Police Officers. We want to talk with you.

Voice: Just a minute and I'll put some clothes on.

H: Open the door. We want to talk to you.

After five seconds the occupant, a 5'6" 150 pound male with dark

hair and a mustache, opened the door. He was in his underwear.

Detective Hardy and Officers Sims and White entered. Sims and

White were in uniform and armed. Their weapons were not drawn.

Detective Hardy questioned the occupant as follows:

H: Are you Frank Nutter?

FN: Yes

H: We want to talk to you about the disappearance of a woman

from a Convenient store two weeks ago.

FN: I didn't shoot her. She was okay when I let her out.

H: You're under arrest for kidnapping and murder. You're

going downtown. Let's get some clothes.

Nutter moves to suppress his statement. Discuss.

3) Same as in (2) except that the Detective and Officers did not

knock and announce. Hardy tried the door and found it to be

unlocked. They entered, found Nutter in bed with his wife, woke

him, and the dialogue set out above followed. Nutter moves to

suppress his statement.

4) Same as in (2) with the addition that, on the way to the

station Hardy, driving the car, said to Officer Sims, his front-

seat passenger, "This case bothers me a lot. That girl was an

only child -- an honors student and her parents just adored her.

I sure wish we could find her -- her parents are real good people

and it would help ease their minds to know what happened to her."

Nutter, in the back seat of the cruiser, said, "I'll show you

where I buried her." Nutter moves to suppress this statement.

5) Same as in (4) with the addition that, Nutter took the

Officers to the body buried in a shallow grave in the Red River

Gorge. Nutter moves to suppress all evidence derived from the

body and its location.

6) Same as in (2) with the addition that, after arrival at the

station, Hardy put Nutter in an interrogation room to be

questioned. Hardy then was told by the desk sergeant that an

attorney had called to say that he was on the way to the station

to talk to Nutter and for the police not to question Nutter.

Hardy did not pass this information on to Nutter; instead he gave

Nutter the Miranda warnings. Nutter waived his rights and made a

full written confession which he now seeks to suppress.

7) Same as in (2) with the addition that, after arrival at the

station and being given his Miranda rights Nutter said, "I think

I should have a lawyer." Hardy replied, "Are you willing to talk

to us without a lawyer?" Nutter replied, "Yes, I guess so but

nothing in writing." Hardy replied, "Okay, nothing in writing;

it's just between me and you." Nutter made a full oral

confession which he now seeks to suppress.

8) Same as in (2) with the addition that, after arrival at the

station and being given his Miranda rights Nutter agreed to waive

his rights and talk. His story was that he had gone to the

Convenient store to get cigarettes, engaged Ms. Petersen in

conversation, persuaded her to leave with him, that they had

consensual sex, and he had driven her back to the store and let

her out. He denied any knowledge of the bloodstained clothes

found in his car. After about an hour Detective Hardy told Nutter

(falsely) that the bloodstains on the clothes had been positively

matched through DNA testing with hair taken from Carla Petersen's

hairbrush. In fact no DNA tests had been performed. Detective

Hardy then said, "I know how it is. She asked for it and things

got out of hand. No one is going to blame you." Nutter then made

a full written confession, which he now seeks to suppress.

9) Same as in (8) except that Nutter did not confess. He said he

didn't want to talk anymore and Hardy ended the session. Nutter

was taken to his cell. Nutter's wife arrived and demanded an

opportunity to talk with her husband. Hardy was reluctant to

allow a visit but finally told her that she could talk to Nutter

in the presence of Officer Sims. She agreed and was seated in the

interrogation room with Officer Sims when Nutter was led in. She

jumped up and shouted, "You bastard. What did you do to that

girl?" and Nutter replied, "I didn't mean to hurt her." Sims

heard this statement and would testify to it. Nutter moves to

suppress the statement.

10) Same as in (8) except that Nutter did not confess. The next

morning he was arraigned and counsel appointed. That night Hardy

arranged for an inmate named Frank Jenkins, anxious to curry

favor, to share Nutter's cell on orders from Hardy to "keep his

ears open." Jenkins engaged Nutter in conversation about the

homicide and Nutter eventually admitting kidnapping and murdering

Ms. Petersen. Nutter moves to suppress his statement to Jenkins.

11) Same as in (8) except that Nutter did not confess. Hardy

terminated the interrogation and Nutter was jailed for the night.

Nutter was arraigned the next day and counsel appointed. Two days

later Nutter appeared to suffer a mental breakdown, perhaps from

drug withdrawal. He was taken to the jail infirmary and there

made statements, overheard by a deputy jailer, which indicated

that he had shot and killed Ms. Petersen. Nutter claims that he

has no memory of the statements and moves to suppress them.

12) Same as in (8) except that Nutter did not confess. Two days

after he was arraigned and counsel appointed the police brought

Doug Dixon, the eyewitness, to the station to take a look at

Nutter. Hardy seated Dixon in the interrogation room and had a

guard bring Nutter in. When he saw Nutter Dixon said, "That's the

guy I saw. No doubt about it." Nutter responded, "Where were you?

I didn't see you." Nutter moves to suppress Dixon's

identification and his statement.

C ): Short answer

l) State X amended its Rules of Criminal Procedure to provide

that "the voluntariness of a confession shall be decided by the

jury." Is this Constitutional? Why or why not?

2) For Fourth Amendment purposes what is the significance of

describing a location as being in an ~open field?"

3) For Fifth Amendment purposes what is "use immunity?"

4) Give an example of a search or seizure that would be legal if

performed for administrative purposes but illegal if done to seek

or collect evidence for a criminal prosecution.

5) Give an example of permissible use of illegally seized

~ evidence -- where the state will be permitted to use the evidence

even though it was seized illegally.