MOOT
COURT
Artist Ron Leone
Judge Packet
MOOT COURT – PACKET FOR JUDGES
TABLE OF CONTENTS
Bench Memo for Utah v. Strieff..................................................................... A1–A12
Basic Controversy.........................................................................................A1
Facts and Procedural History........................................................................A2
Questions Presented.....................................................................................A2
Rationale for Expansion of Question Four.....................................................A2
Arguments....................................................................................................A2
USSC Opinion Overview and Lineup...........................................................A3
Sample Questions for Students.............................................................. A4–A5
Excerpts from the Case Opinion.......................................................... A6–A10
Procedure and Scoring Criteria for Judges........................................................B1–B3
Courtroom Dialog (Fill-in) ............................................................................. C1–C2
Case Materials for Utah v. Strieff...................................................................D1–D12
Table of Authorities............................................................................................. D13
iii
MOOT
COURT
Artist Ron Leone
The materials for Moot Court – Exploring the Appellate Process and the annual Moot Court
Competition have been excerpted and adapted from a simulation on the judicial branch called
Puttin’ on the Robes – Exploring the Legal Process, which is available through our nonprofit
corporation, Center for Economic and Civic Education—CESQD (see our website http://cesqd.org).
The U.S. Supreme Court case used, Utah v. Strieff is a public record.
Materials developed by Carla Young Garrett (except for the Moot Court competition format and
rules which were developed by Carla Young Garrett and Ron Leone.
Solely for use with their own classes, permission is hereby granted to teachers who purchased
these materials, received them as part of training or the competition, to photocopy the handouts,
forms, case materials and Student Instructions, and to download and/or print the files from our
website. Further reproduction, distribution or resale of these materials is strictly prohibited. No
other parts may be reproduced or transmitted in any form or by any means, including without
limitation, electronic, mechanical, photocopying, scanning or recording, or by any information
or storage or retrieval system without the prior written consent of the author, Carla Young Garrett.
While every reasonable precaution has been taken in the preparation of these materials, the author
and publisher assume no responsibility for errors or omissions, or for damages resulting from the
use of information contained herein.
Address questions and/or requests for permissions to: Carla Young Garrett, PO Box 23841, Pleasant
Hill, CA 94523, or contact us via email ([email protected]) or by phone (925.947.4356).
Major Supporters
A special thanks goes our sponsor the Contra Costa County Bar Association, and to the attorneys
and judges who volunteer their time to score the competition, and to Mechanics Bank for their
continuing support of the competition (providing money for scholarships and court security) and
to our organization.
Writing Partner
Finally, to my colleague and friend Allen Mooney: Thanks for your time and energy, and for your
immeasurable writing, editing and analytical talents.
Moot Court – Exploring the Appellate Process, Copyright © 2005–2016 by Carla Young Garrett
iv
MOOT COURT – PACKET FOR JUDGES1
BENCH MEMO
This packet includes:
• Background information
• Sample questions
• Student case materials
• Competition rules and procedures
On pages A4–A5 of this memo, you’ll find some sample questions you can ask the student attorneys.
Also included here, but NOT in the student materials are some excerpts from the opinion (see pages
A6–A11). Students may quote only from their case materials, pages D1–D13. Students may use
reasoning gleaned from other sources, but it is a rules violation for them to quote from anything
other than the case materials (see Rules §102 (2)).
The Basic Controversy
Teachers and students were given these basic definitions of the key terms and the following info.
The basic issue is: Under what circumstances can evidence, obtained after an illegal stop, be used in
court? Four legal concepts come into play here:
• The exclusionary rule: Prevents the prosecutor from using evidence illegally seized.
• Fruit of the poisonous tree: Evidence that is discovered as the result of an illegal search and so
cannot be used.
• Search incident to arrest: When a person is arrested, the police can search that person and
any place they can reach (e.g. a purse at their feet in a car). This is generally for the safety of an
officer so that the person doesn’t pull a weapon on the officer.
• Attenuation of the taint of an illegal stop: Some event happen, so that the connection between
the illegal stop and the finding of the evidence is broken or lessened.
These concepts are addressed in the majority opinion by Justice Thomas and in the dissent by
Justice Sotomayor (see the opinion excerpts on pages 7 to 11 for that discussion).
The cases also indicate that applying the exclusionary rule and suppressing evidence is not a personal
right, but one designed to deter police from violating the Fourth Amendment’s Search and Seizure
Clause. Therefore, excluding the evidence must outweigh the social cost (see Rationale, next page).
Facts
Police were surveilling an alleged “drug dealing” house. When narcotics officer Douglas Flackrell
saw Mr. Strieff coming out of the house, he stopped Mr. Strieff, identified himself as a police officer,
and asked Strieff what he was doing there. The Officer also asked to see Mr. Strieff’s ID. Running
the ID though police computer turned up an arrest warrant for an outstanding parking ticket. The
officer arrested Mr. Strieff, searched him and found methamphetamine.
1 The student materials do not tell the outcome of this case.
Copyright © 2005–2016 Carla Young Garrett
A1
Bench Memo
Procedural History
Mr. Strieff was charged with possession of methamphetamine. The trial court denied the motion to
suppress the evidence. The court found that the short time between the illegal stop and the search
weighed in favor of suppressing the evidence, but that two countervailing considerations made it
admissible. First, the court considered the presence of a valid arrest warrant to be an “‘extraordinary
intervening circumstance.” Second, the court stressed the absence of flagrant misconduct by Officer
Fackrell, who was conducting a legitimate investigation of a suspected drug house. Mr. Strieff
conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance
and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the
suppression motion. The Utah Court of Appeals affirmed that the search and seizure of the drugs
was constitutional.
The Utah Supreme Court reversed. It held that the evidence was inadmissible because only “a
voluntary act of a defendant’s free will (as in a confession or consent to search)” sufficiently breaks
the connection between an illegal search and the discovery of evidence. Because Officer Fackrell’s
discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed.
The USSC granted cert and reversed, holding the search constitutional on grounds of attenuation.
Questions presented:
Under what circumstances can evidence, obtained after an illegal stop, be used in court?
1) Was the drug evidence obtained the fruit of the poisonous tree?
2) Does the search incident to arrest rule apply when the officer’s reason for stopping the defendant
was illegal?
3) Does an outstanding warrant attenuate the taint of an illegal stop?
4) Does the deterrent effect of excluding the evidence outweigh the social costs? \
Rationale for Expansion of Question Four
U.S. Supreme Court justices have created a legal framework in their discussions for and against
excluding evidence. The recent interactions between police and the public (stopping and searching
motorists or people on the street), and the issues raised in Justice Sotomayor’s dissent (page 11)2
make Question 4 “Does the deterrent effect of excluding the evidence outweigh the social costs?”
highly relevant today. So, in addition to the legal issues, this question asks students to address the
issues in a social context as well.
We would like you to ask hypothetical questions about stops by police and the societal impact of
this issue, but you may not quote anything outside the student case packet (which does not include
any statistics or Sotomayor’s opinion.
Students are asked to argue:
Petitioner: While the initial actions of the officer in stopping Mr. Strieff may have been improper,
the discovery of an outstanding warrant attenuated the taint. The arrest on that warrant and the
search incident to that arrest were legal. Also, the officer’s conduct was not so flagrant as to require
deterrence to future similar police action. Therefore suppressing the evidence (and letting Mr. Strieff
go free) would have a higher cost to society than admitting the evidence (and allowing the police
behave in this fashion). The exclusionary rule should not apply.
2 These are not provided to the students.
Copyright © 2005–2016 Carla Young Garrett
A2
Bench Memo
Respondent: The original stop and request for ID without reasonable suspicion that Mr. Strieff
was doing anything wrong means that any evidence obtained as a result of that stop should be
suppressed as a violation of Mr. Strieff’s Fourth Amendment Rights. The unrelated traffic ticket arrest
warrant did not attenuate the taint. Suppression of the evidence is necessary here, because the
deterrent effect (in preventing officers from engaging in this type of illegal conduct) outweighs the
cost to society of letting a guilty person go free. Therefore, the exclusionary rule should apply.
Opinion Overview
There is a set of cases (many of them long-standing) that come into play when there is a search and
seizure issue (e.g. fruit of the poisonous tree doctrine). Many of these cases were cited by the Court.
The majority held that the valid arrest warrant for the unpaid parking ticket attenuated the taint of
the admittedly illegal stop. They also held that the officer was only slightly negligent his violation,
rather than the stop being part of any systemic or recurrent police misconduct.
The dissent held that the stop was an “unconstitutional investigatory stop” [a stop to detect evidence
of wrong-doing, as opposed to a stop based on the officer’s observation of possible wrong-doing].3
As the stop was unconstitutional under the Fourth Amendment, the evidence seized must be
suppressed as the fruit of the poisonous tree.
As part of her dissent, Justice Sotomayor4 wrote an additional section (some of which is on page
11) where she discusses her view of police conduct in general and with the minority community
in particular.
USSC Opinion Line-up (5-3)5
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., KENNEDY, BREYER, and
ALITO, JJ., joined.
• SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Parts I, II,
and III.
• KAGAN, J., filed a dissenting opinion, in which GINSBURG, J., joined.
3 Text in brackets appears in the Teachers’ Guide and/or Student Instructions to help them understand legal words and
phrases.
4 Justice Sotomayor said, “Writing only for myself, and drawing on my professional experiences, I would add that unlawful
stops have severe consequences much greater than the inconvenience sug­gested by the name.”
5 Since Justice Scalia died in February, 2016, the Court has had only 8 members.
Copyright © 2005–2016 Carla Young Garrett
A3
Bench Memo
MOOT COURT – PACKET FOR JUDGES
QUESTIONS
Questions for Petitioner State of Utah
1. In what way does a traffic ticket attenuate the taint of an illegal stop?
2. Officer Fackrell didn’t have any basis to run Mr. Strieff’s name through the police computer, so
how can his action be justified under the 4th Amendment?
3. In terms of stopping innocent people on the street and checking their ID, where do you draw
the line?
4. Don’t you agree that if the courts allow officers to stop and question people on a “hunch” that
this make our society less free? Is this acceptable to you? Why/why not?
5. Since everyone (including the Court) agreed that the stop was illegal, shouldn’t the evidence
have been suppressed under the exclusionary rule?
6. In City of Indianapolis et al. v. Edmond the Court said, “because the primary purpose of
the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal
wrongdoing, the program contravenes [violates] the Fourth Amendment.” Wasn’t uncovering
evidence of ordinary criminal wrongdoing Officer Fackrell’s primary purpose as well?
7. Doesn’t intentionally stopping someone on the street and asking for their ID, come under the
heading of a flagrant violation per the 3rd prong of the test in Brown v. Illinois? Why/why not?
8. The evidence here was clearly tainted by the illegal stop. Isn’t the purpose of the exclusionary
rule to deter police from engaging in prohibited behavior? If so, then shouldn’t the drug evidence
in this case have suppressed
9. How do we as a nation, strike a balance between social cost and deterrent effect? Give examples
and explain them.
Copyright © 2005–2016 Carla Young Garrett
A4
Sample Student Questions
MOOT COURT – PACKET FOR JUDGES
QUESTIONS
Questions for Respondent Edward Strieff
1. The 4th Amendment is designed to prevent unreasonable searches and seizures not all of them.
Wasn’t Officer Fackrell’s conduct reasonable in light of his surveillance of the house? Why/why
not?
2. Once it was discovered that Mr. Strieff had an outstanding arrest warrant, wasn’t it Officer
Fackrell’s duty to arrest him?
3. Wouldn’t you agree that the flagrancy of Officer Fackrell’s conduct was low, so that suppressing
the evidence would not really serve as a deterrent to this officer or others like him?
4. As an experienced narcotics officer responding to a “tip,” didn’t Officer Fackrell have reasonable
suspicion to stop and question Mr. Strieff?
5. Wouldn’t there be a huge social cost if all evidence obtained in violation of the 4th Amendment
were to be suppressed? Why/why not?
6. Where do you draw the line between reasonable and unreasonable conduct on the part of the
police? Give examples.
7. Since the arrest warrant existed prior to, and was not part of the illegal stop, shouldn’t it attenuate
the taint? Why/why not?
8. Since the Court found the conduct of the police officer in the Herring case (acting on a warrant
that had, in fact, been recalled) acceptable, shouldn’t Officer Fackrell’s conduct (acting on a
warrant that was still in effect) be legal? Why/why not?
9. How do we as a nation, strike a balance between social cost and deterrent effect? Give examples
and explain them.
Copyright © 2005–2016 Carla Young Garrett
A5
Sample Student Questions
Excerpts from JUSTICE THOMAS’ majority opinion:1
Turning to the application of the attenuation doctrine to this case, we first address a threshold
question: whether this doctrine applies at all to a case like this, where the intervening circumstance
that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant.…
The attenuation doctrine evaluates the causal link between the government’s unlawful act and the
discovery of evidence, which often has nothing to do with a defendant’s actions. …
It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening
event to break the causal chain between the unlawful stop and the discovery of drug-related
evidence on Strieff’s person. The three factors articulated in Brown v. Illinois, guide our analysis.
First, we look to the temporal proximity between the unconstitutional conduct and the discovery of
evidence to determine how closely the discovery of evidence followed the unconstitutional search.
Second, we consider the presence of intervening circumstances. Third, and particularly significant,
we examine the purpose and flagrancy of the official misconduct. In evaluating these factors,
we assume without deciding (because the State conceded the point) that Officer Fackrell lacked
reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant
breaks the causal chain, we also have no need to decide whether the warrant’s existence alone
would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.
The first factor, temporal proximity between the initially unlawful stop and the search, favors
suppressing the evidence. … Officer Fackrell discovered drug contraband on Strieff’s person only
minutes after the illegal stop. As the Court explained in Brown, such a short time interval counsels
in favor of suppression. …
In contrast, the second factor, the presence of intervening circumstances, strongly favors the
State. In Segura, the Court addressed similar facts to those here and found sufficient intervening
circumstances to allow the admission of evidence. There, agents had probable cause to believe that
apartment occupants were dealing cocaine. They sought a warrant. In the meantime, they entered
the apartment, arrested an occupant, and discovered evidence of drug activity during a limited
search for security reasons. The next evening, the Magistrate Judge issued the search warrant. This
Court deemed the evidence admissible notwithstanding the illegal search because the information
supporting the warrant was wholly unconnected with the arguably illegal entry and was known to
the agents well before the initial entry.
Segura, of course, applied the independent source doctrine because the unlawful entry did not
contribute in any way to discovery of the evidence seized under the warrant. But the Segura Court
suggested that the existence of a valid warrant favors finding that the connection between unlawful
conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint. That principle
applies here.
In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely
unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation
to arrest Strieff. A warrant is a judicial mandate to an officer to conduct a search or make an arrest,
1 To present the most relevant parts of these opinions, I have taken quotes from several parts of them. The free-standing
ellipsis indicate a gap between the quotes. Aside from internal quote marks, the case names and page citations (which
have been removed for ease of reading), these excerpts are taken directly from the case.
Opinion Excerpts – Public Domain
A6
Opinion Excerpts
and the officer has a sworn duty to carry out its provisions. Officer Fackrell’s arrest of Strieff thus was
a ministerial act [an act for which there is a prescribed procedure, i.e. if there is an arrest warrant,
he/she must arrest that person] that was independently compelled by the pre-existing warrant. And
once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as
an incident of his arrest to protect Officer Fackrell’s safety.
Finally, the third factor, the purpose and flagrancy of the official misconduct, also strongly favors
the State. The exclusionary rule exists to deter police misconduct. The third factor of the attenuation
doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in
need of deterrence—that is, when it is purposeful or flagrant.
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith
mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did
not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude
that Strieff was a short-term visitor who may have been consummating a drug transaction. Second,
because he lacked confirmation that Strieff was a short- term visitor, Officer Fackrell should have
asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer
Fackrell’s stated purpose was to find out what was going on in the house. Nothing prevented him
from approaching Strieff simply to ask. A seizure does not occur simply because a police officer
approaches an individual and asks a few questions. But these errors in judgment hardly rise to a
purposeful or flagrant violation of Strieff ’s Fourth Amendment rights.
While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful.
The officer’s decision to run the warrant check was a negligibly burdensome precaution for officer
safety. And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest.
Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police
misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of
negligence that occurred in connection with a bona fide investigation of a suspected drug house.
Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was
based on an anonymous tip and his personal observations.
Applying these factors, we hold that the evidence discovered on Strieff’s person was admissible
because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although
the illegal stop was close in time to Strieff ’s arrest, that consideration is out-weighed by two factors
supporting the State. The outstanding arrest warrant for Strieff’s arrest is a critical intervening
circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke
the causal chain between the unconstitutional stop and the discovery of evidence by compelling
Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer
Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.
Opinion Excerpts – Public Domain
A7
Opinion Excerpts
Excerpts from JUSTICE SOTOMAYOR’s dissenting opinion:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a
police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s
technical language: This case allows the police to stop you on the street, demand your identification,
and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer
discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will
admit into evidence anything he happens to find by searching you after arresting you on the warrant.
Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
…
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a
civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a
basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When
lawless police conduct uncovers evidence of lawless civilian conduct, this Court has long required
later criminal trials to exclude the illegally obtained evi­dence. For example, if an officer breaks
into a home and finds a forged check lying around, that check may not be used to prosecute the
homeowner for bank fraud. We would describe the check as fruit of the poi­sonous tree. Fruit that
must be cast aside includes not only evidence directly found by an illegal search but also evidence
come at by exploitation of that illegality.
This exclusionary rule removes an incentive for offic­ers to search us without proper justification. It
also keeps courts from being made party to lawless invasions of the constitutional rights of citizens
by permitting unhindered governmental use of the fruits of such invasions. When courts admit only
lawfully obtained evidence, they encourage those who formulate law enforcement polices, and the
officers who implement them, to incorporate Fourth Amendment ideals into their value system. But
when courts admit illegally obtained evidence as well, they reward manifest neglect if not an open
defiance of the prohibitions of the Constitution.
…
The officer’s violation was also calculated to procure evidence. His sole reason for stopping Strieff,
he acknowledged, was investigative—he wanted to discover whether drug activity was going on in
the house Strieff had just exited.
The warrant check, in other words, was not an intervening circumstance separating the stop from
the search for drugs. It was part and parcel of the officer’s illegal expedition for evidence in the
hope that something might turn up. Under our precedents, because the officer found Strieff ’s drugs
by exploiting his own constitutional violation, the drugs should be excluded.
…
The majority likewise misses the point when it calls the warrant check here a negligibly burdensome
precau­tion taken for the officer’s safety. Remember, the officer stopped Strieff without suspecting
him of committing any crime. By his own account, the officer did not fear Strieff. Moreover, the
safety rationale we discussed in Rodriguez, an opinion about highway patrols, is conspicuously
absent here. A warrant check on a highway ensures that vehicles on the road are operated safely
Opinion Excerpts – Public Domain
A8
Opinion Excerpts
and responsibly. We allow such checks during legal traffic stops because the legitimacy of a person’s
driver’s license has a close connection to road­way safety. A warrant check of a pedestrian on a
sidewalk, by contrast, is a measure aimed at detecting evidence of ordinary criminal wrong­doing.
Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade
vendors just to ensure they pose no threat to anyone else.
The majority also posits that the officer could not have exploited his illegal conduct because he
did not violate the Fourth Amendment on purpose. Rather, he made good­faith mistakes. Never
mind that the officer’s sole purpose was to fish for evidence. The majority casts his unconstitutional
actions as negligent and therefore incapable of being deterred by the exclusionary rule.
But the Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just
because he did not know any better. Even officers prone to negligence can learn from courts that
exclude illegally obtained evidence. Indeed, they are perhaps the most in need of the education,
whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal
procedure. If the officers are in doubt about what the law requires, exclusion gives them an incentive
to err on the side of constitutional behavior.
Most striking about the Court’s opinion is its insistence that the event here was isolated, with
no indication that this unlawful stop was part of any systemic or recurrent police misconduct.
Respectfully, nothing about this case is isolated.
Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine
payment or court appearance, a court will issue a warrant. When a person on probation drinks
alcohol or breaks curfew, a court will issue a warrant. The States and Federal Government maintain
databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for
minor offenses. Even these sources may not track the staggering numbers of warrants, drawers
and drawers full, that many cities issue for traffic violations and ordinance infractions. … The
Department of Justice recently reported that in the town of Ferguson, Missouri, with a population
of 21,000, 16,000 people had outstanding warrants against them.
Justice Department investigations across the country have illustrated how these astounding numbers
of warrants can be used by police to stop people without cause. In a single year in New Orleans,
officers made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic
or misdemeanor warrants from neighboring parishes [counties] for such infractions as unpaid
tickets. … In the St. Louis metropolitan area, officers routinely stop people—on the street, at bus
stops, or even in court—for no reason other than an officer’s desire to check whether the subject had
a municipal arrest warrant pending. In Newark, New Jersey, officers stopped 52,235 pedestrians
within a 4-year period and ran warrant checks on 39,308 of them. The Justice Department analyzed
these warrant-checked stops and reported that approximately 93% of the stops would have been
considered unsupported by articulated reasonable suspicion.
Opinion Excerpts – Public Domain
A9
Opinion Excerpts
Writing only for myself, and drawing on my professional experiences, I would add that unlawful
“stops” have severe consequences much greater than the inconvenience sug­gested by the name.
This Court has given officers an array of instruments to probe and examine you. When we condone
officers’ use of these devices without adequate cause, we give them reason to target pedestrians in
an arbitrary manner. We also risk treating members of our communities as second-class citizens.
…
By legitimizing the conduct that produces this double consciousness, this case tells everyone,
white and black, guilty and innocent, that an officer can verify your legal status at any time. It says
that your body is subject to invasion while courts excuse the violation of your rights. It implies that
you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.”
They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can
breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode
all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will
continue to be anything but.
Opinion Excerpts – Public Domain
A10
Opinion Excerpts
MOOT COURT
PROCEDURES & SCORING CRITERIA FOR JUDGES
A) OVERVIEW
About the case: Utah v. Strieff is a 2015 U.S. Supreme Court case. We’ve kept some of the justices’
actual language, but have excerpted it down to 12 pages and the following issue:
Issue:
Under what circumstances can evidence, obtained after an illegal stop, be used in court?
Venue: So that the case can be argued in a three-judge circuit court setting, we have set the case
in the fictitious Twentieth Circuit Court of Appeal and made it vague as to which courts have heard
the case. Also, the case materials do not indicate which side won.
Attorney appearances: The competition is designed to be flexible. Each side can have one or two
attorneys. If there are two attorneys, they can share both the main argument (argument-in-chief)
and the rebuttal, or one can do the main argument and the other can do the rebuttal. Please keep in
mind that students received a wide range of preparation assistance. (Some students had help from
their Mock Trial coach and some got teacher or parent help and others had no assistance at all.)
Time Limits: THE ENTIRE ROUND IS ONLY 40 MINUTES. The Clerk/Timer will give you a “five
minutes left” indicator. Please stop when the Clerk/Timer says that the 40 minutes are up.
Each side has six minutes TOTAL for both their argument-in-chief and their rebuttal. This time can
be divided up at the discretion of the attorneys. You interrupt to ask clarifying questions. The time
spent answering your questions is not included in the six-minute time limit. Any time remaining
after each side’s argument-in-chief is automatically available for rebuttal. Please keep the time
limits in mind when asking your questions to enable all the attorneys to demonstrate their abilities.
B) ORDER OF EVENTS
Feel free to use the “Appellate Court Dialog Sample” (pages C1 and C2) as a guide.
1. When the Clerk/Timer says, “All rise,” the judges file in and take their seats (the PJ sits in the
middle). The Clerk/Timer then asks everyone to be seated and calls the case, “Calling the case
of Utah v. Strieff.”
2. The presiding judge asks the attorneys to state their names and appearances for the record.
3. The Clerk/Timer and the unofficial timer introduce themselves. The Clerk/Timer demonstrates
the timing signals (3-, 2-, 1-minute, 30 seconds and TIME).
4. The PJ asks the attorney(s) for the Plaintiff to summarize their arguments.
5. The PJ asks the attorney(s) for the Defendant to summarize their arguments.
6. One of the attorneys can ask the Clerk/Timer for a time check for both sides.
7. The PJ tells the attorney(s) for the Plaintiff that they may use all their remaining time for rebuttal
and reminds them that rebuttal is used to counter their opponents’ arguments and cannot be
used to raise new issues.
8. The PJ tells the attorney(s) for the Defendant that they may use all their remaining time for
rebuttal and reminds them that rebuttal is used to counter their opponents’ arguments and
cannot be used to raise new issues.
Copyright © 2005–2016 Carla Young Garrett
B1
Procedures and Scoring
9. Before giving any comments, the PJ collects all score sheets, puts them in the envelop provided,
seals it, then gives the envelop to the official clerk/timer who takes it to the Moot Court staff for
scoring.
C) INSTRUCTIONS FOR JUDGES TO READ TO PARTICIPANTS
“Both sides have six minutes to present their arguments. Plaintiff will begin. We will interrupt to
ask clarifying questions. Time spent answering our questions is not included in the six-minute time
limit. At the conclusion of both arguments-in-chief, each side will have rebuttal time (any time you
have remaining). Please remember that the rebuttal time is to be used to counter your opponent’s
arguments. It cannot be used to raise new issues. You must complete your presentations within the
specified time limits. The Clerk/Timer will signal you as your time begins to run out. When your
total time runs out, you will be stopped, even if you have not finished.
Before we begin, we would like to make reference to the Code of Ethics of the competition. We
understand you have all signed written agreements to follow this code. Finally, once we start,
contact with spectators is prohibited and is subject to a penalty. If there are no questions, we’ll
proceed.”
D) SCORING INSTRUCTIONS FOR JUDGES
1. Please fill in the appropriate boxes on the score sheet.
2. When filling out score sheets, make your decisions independently. Please don’t confer.
3. To avoid ties, the PJ needs to indicate which team he/she feels should be the overall winner.
E) EVALUATION CRITERIA
You will be scoring students in four areas: 1) The quality of their main arguments; 2) How well they
responded to questions during their main argument; 3) The quality of the rebuttal; 4) How well they
respond to questions during their rebuttal argument. Students are to be rated on the eleven point
scale (no fractions are allowed) for each category. On a 0 to 10 scale (with 10 being the best) rate
the student lawyers on the following criteria. The lawyer:
• Covered the issues/questions presented (see page B1 of this packet)
• Had a well-developed and well-reasoned argument
• Presented the argument in a well organized and easy to follow manner
• Cited appropriate authorities
• Showed solid understanding of the legal reasoning behind the arguments
• Responded well to questions,
• Used rebuttal to effectively respond to and counter what other side actually said
• Used judges’ questions to show weaknesses in other side’s argument
• Demonstrated ability to weave answers into prepared argument
• Showed poise, passion and persuasiveness
• Was audible, understandable and did not speak too fast or slow
• Had good courtroom demeanor
• Used time effectively
Copyright © 2005–2016 Carla Young Garrett
B2
Procedures and Scoring
F) SCORING CRITERIA GUIDELINES FOR 0-10 SCORING METHOD
The following are general guidelines to be applied to each category on the score sheet. These
guidelines provide a framework on which to base your judgment. The system is designed to give
you flexibility. For example, if you think both arguments-in-chief were excellent, but one attorney
was better than the other, then you can give one a “9” and the other an “8.”
10: FLAWLESS
9–8: EXCELLENT (Exceptional performance)
• Highly developed understanding of task
• Superior ability to think on his/her feet
• Superior ability to answer questions
• Resourceful, original and innovative approaches
• Presentation was extraordinary and not overly rehearsed or memorized
7–8: ABOVE AVERAGE (Good solid performance)
• Well developed understanding of task
• Good ability to think on his/her feet
• Good ability to answer questions
• Well prepared
• Very good presentation
5–6: AVERAGE (Meets required standards)
• Basic understanding of task
• Ability to think on his/her feet
• Ability to answer questions
• Adequate preparation
• Acceptable but uninspired performance
4: BELOW AVERAGE (Weak performance)
• Inadequate understanding of task
• Limited ability to think on his/her feet
• Limited ability to answer questions
• Inadequate preparation
• Awkward presentation
3: FAR BELOW AVERAGE (Unacceptable performance)
• Poor understanding of task
• No ability to think on his/her feet
• No ability to answer questions
• Shows lack of preparation
• Disorganized presentation
0: PENALTY (Nonperformance of required part; rules violations)
• Failure to conduct rebuttal (no time or no argument ready)
• Can use this for rule violations
Copyright © 2005–2016 Carla Young Garrett
B3
Procedures and Scoring
Fill-in Courtroom Dialog for Appellate Argument
The room is arranged as a courtroom (see Appellate Court Diagram, Appendix D). The lawyers are seated at
counsel table (appellant at the right, respondent on the left).
All are present except the three judges. The Clerk/Timer (Cl/Timer) stand and speaks.
Cl/Timer All rise. The Court of Appeal for the Twentieth Circuit is now in session.
The Honorable _ ______________________________________________ p
residing.
All three judges enter the courtroom and sit down. The PJ (presiding judge) raps the gavel once.
Cl/Timer Please be seated and come to order. Calling the case of _ ______________________.
PJ Counsel, please state your names and appearances for the record.
Lawyers stand. (Lawyers ALWAYS stand when addressing the judges.)
Each in turn says:
Attys Good morning your honors, _ ____________________, representing the Petitioner in this
action. I will be delivering the _ __________________________________________.
Good morning your honors, _ ____________________, representing the Petitioner in this
action. I will be delivering the _ __________________________________________
Good morning your honors, _ ____________________, representing the Respondent in
this action. I will be delivering the _ __________________________________________
Good morning your honors, _ ____________________, representing the Respondent in
this action. I will be delivering the _ __________________________________________
Good morning your honors, _ ____________________, I’ll be your clerk and official timer
this morning.
Good morning your honors, _ ____________________, I’m the unofficial timer.
PJ Before we begin, I’m going to read some preliminary instructions.
PJ reads instructions or asks to skip reading them. Then the PJ addresses the P Attys
PJ _ __________________, please proceed with your argument.
P Atty Yes, your honor
One of the P Attys stands and delivers his/her argument-in-chief (main argument). Then, if appropriate, the other
P Atty stands and delivers his/her argument-in-chief.
Personnel are:
(PJ) Presiding Judge (P Atty) P Petitioner’s attorney; (R Atty) Respondent’s attorney; (Attys) All or some of the attorneys
Copyright © Carla Young Garrett
C1
Fill-in Appellate Courtroom Dialog
After the P Atty(s) have delivered their arguments-in-chief, then the PJ asks the R Atty(s) to give their
arguments.
PJ _ __________________, please proceed with your argument.
P Atty Yes, your honor.
The R Atty(s) stand and deliver their arguments-in-chief. Then the PJ addresses P Atty(s):
PJ _ __________________, you may proceed with rebuttal. Remember that this time may
only be used to rebut opposing counsel’s argument and not to raise new issues.
When P Atty(s) have finished rebuttal, (or time is called) the PJ addresses R Atty:
PJ _ __________________, you may proceed with rebuttal.
When R Atty(s) have finished rebuttal (or time is called) the PJ addresses everyone:
PJ This concludes the oral argument in _ __________________ Thank you counsel. Before we
make any comments, would my fellow justices please put their score sheets in this envelope?
Now seal the envelope and hand it to the official timer/clerk.
Would the clerk please take this envelope with the score sheets and bring it to the Moot
Court staff?
Cl/Timer All rise.
After the judges are off the bench:
Cl/Timer You may be seated.
Copyright © Carla Young Garrett
C2
Fill-in Appellate Courtroom Dialog
Utah v. Strieff
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Notes
Case citation: Utah v. Strieff
The case No. 14–1373. Argued February 22, 2016—Decided June 20, 2016.
The student instructions are absent from these materials, but for ease of reference, the page
and line numbering is the same as in the student packets, hence the extra space below.
You will also find some words in [ ]. These are definitions to help the students understand
words that they might not be familiar with. To keep the page and line numbering consistent,
they’ve been left in here.
Parties
Petitioner: State of Utah
Respondent: Richard Strieff (the Defendant in the case)
Background Information
The Fourth Amendment’s rule applies to unreasonable searches and seizures. The Court has
articulated [spelled out] many rules and exceptions to explain what is or is not reasonable.
So what happens when the police obtain evidence illegally? As you will see from reading
the cases in this packet, the Court has developed a variety of approaches. First, the Court
created what is known as the exclusionary rule.1 It means that illegally obtained evidence
cannot be used in court. This is a pretty harsh outcome for the prosecution, as it generally
requires dismissal of the case because there is no evidence. The Court also likes to come up
with descriptive names for their rules or doctrines, e.g., the phrase fruit of the poisonous
tree, refers to any evidence seized as a result of an illegal search. In other words, the
evidence [fruit] is poisoned [or tainted] by the illegal search.2 On the flip side, if there’s
an intervening event the taint becomes attenuated [something that happens to lessen the
connection between the illegal search and the evidence obtained from it.] As a result, it is
no longer tainted enough to require the court to exclude it from the trial, so it can be used
against the defendant. One additional rule for use of evidence comes into play in this case:
Search incident to arrest [once someone has been legally arrested they (and sometimes
their car or purse, for example) can be searched.]
1 The exclusionary rule was first adopted in Weeks v. United States in 1914.
2 First articulated in 1939 by a well known justice named Felix Frankfurter in Nardone et al. v. United States.
Moot Court Case Packet 2016
UvS-1
Utah v. Strieff
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Legal/Procedural History
Case Facts and Outcome
This case began with an anonymous tip. In December 2006, someone called the South
Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence.
Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week,
Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who
left a few minutes after arriving at the house. These visits were sufficiently frequent to raise
his suspicion that the occupants were dealing drugs.
One of those visitors was respondent [defendant in the trial] Edward Strieff. Officer Fackrell
observed Strieff exit the house and walk toward a nearby convenience store. In the store’s
parking lot, Officer Fackrell detained Strieff, identified himself as a police officer, and asked
Strieff what he was doing at the residence.
As part of the stop, Officer Fackrell requested to see Strieff ’s identification. Strieff produced
his Utah ID card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who
reported that Strieff had an outstanding arrest warrant for an unpaid parking ticket. Officer
Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff
incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.
The lower court found the search unconstitutional.
Arguments
Petitioner: While the initial actions of the officer in stopping Mr. Strieff may have been
improper, the discovery of an outstanding warrant attenuated the taint. The arrest on that
warrant and the search incident to that arrest were legal. Also, the officer’s conduct was not
so flagrant as to require deterrence to future similar police action. Therefore suppressing the
evidence (and letting Mr. Strieff go free) would have a higher cost to society than admitting
the evidence (and allowing the police behave in this fashion). The exclusionary rule should
not apply.
Respondent: The original stop and request for ID without reasonable suspicion that Mr. Strieff
was doing anything wrong means that any evidence obtained as a result of that stop should
be suppressed as a violation of Mr. Strieff’s Fourth Amendment Rights. The unrelated traffic
ticket arrest warrant did not attenuate the taint. Suppression of the evidence is necessary
here, because the deterrent effect (in preventing officers from engaging in this type of illegal
conduct) outweighs the cost to society of letting a guilty person go free. Therefore, the
exclusionary rule should apply.
Moot Court Case Packet 2016
UvS-2
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Questions presented:
Under what circumstances can evidence, obtained after an illegal stop, be used in court?
1) Was the drug evidence obtained the fruit of the poisonous tree?
2) Does the search incident to arrest rule apply when the officer’s reason for stopping the
defendant was illegal?
3) Does an outstanding warrant attenuate the taint of an illegal stop?
4) Does the deterrent effect of excluding the evidence outweigh the social costs?
Legal Authorities
Constitution
Bill of Rights, Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
Case Law
Mapp v Ohio, 367 U.S. 643 (1961)
Facts: Police officers in a Cleveland, Ohio suburb received information that some illegal
betting equipment might be found in the home of Dollree Mapp. Three officers went to the
home and asked for permission to enter, but Mapp refused to admit them without a search
warrant. Two officers left and one remained. Three hours later, the two returned with several
other officers. Brandishing a piece of paper they said was a warrant, they broke in the door.
Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The
officers struggled with Mapp and took the piece of paper away from her. They handcuffed
her for being belligerent. They did not find the gambling equipment, but found pornographic
material in a suitcase next to her bed. She was arrested, prosecuted, and found guilty of
possession of pornographic material.
Questions: Was the search constitutional and could the evidence obtained from it, be used
against the defendant?
Quotes/Holding: No to both. Evidence obtained by searches and seizures in violation of the
U.S. Constitution is inadmissible in a criminal trial. The Court said:
“If letters and private documents can thus be seized and held and used in evidence against
a citizen accused of an offense, the protection of the Fourth Amendment declaring his right
to be secure against such searches and seizures is of no value, and, so far as those thus
placed are concerned, might as well be stricken from the Constitution. The efforts of the
Moot Court Case Packet 2016
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courts and their officials to bring the guilty to punishment, praiseworthy as they are, are
not to be aided by the sacrifice of those great principles established by years of endeavor
and suffering which have resulted in their embodiment in the fundamental law of the land.”
Illegally seized evidence must be excluded from trial [not allowed to come into evidence].
This principle is called the exclusionary rule4
Wong Sun v. U.S., 371 U.S. 471(1963)
Facts: The facts in this case are rather convoluted. About 2 a. m. on the morning of June
4, 1959, federal narcotics agents in San Francisco, after having had one Hom Way under
surveillance for six weeks, arrested him and found heroin in his possession. After his arrest,
Hom Way stated that he had bought an ounce of heroin the night before from one known to
him only as “Blackie Toy,” proprietor of a laundry on Leavenworth Street.
The agents went to the address on Leavenworth and found a sign Oye’s Laundry and found
one James Wah Toy. Even though there was nothing in the record identifying James Wah Toy
as “Blackie Toy,” the officers went into the house/laundry. As Toy reached into a nightstand
drawer, Agent Alton Wong drew his pistol, pulled Toy’s hand out of the drawer, placed
him under arrest and handcuffed him. There was nothing in the drawer and a search of
the premises uncovered no narcotics. One of the agents said to Toy “… (Hom Way) says
he got narcotics from you.” Toy responded, “No. I haven’t been selling any narcotics at all.
However, I do know somebody who has.” When asked who that was, Toy said, “I only know
him as Johnny. I don’t know his last name,” but gave an address on Eleventh Ave.
Agents went there, found one Johnny Yee who had heroin and said he got it from someone
named “Sea Dog.” Toy was questioned as to the identity of “Sea Dog” and said that “Sea Dog”
was Wong Sun. Some agents, including Agent Wong, took Toy to Wong Sun’s neighborhood
where Toy pointed out a multifamily dwelling where he said Wong Sun lived. Agent Wong
rang a downstairs doorbell and a buzzer sounded, opening the door. One of the officers
went into the back room and brought petitioner Wong Sun from the bedroom in handcuffs.
A thorough search of the apartment followed, but no narcotics were discovered. Wong Sun
was arrested and later made some statements to the police which, in addition to the heroin
found previously, were used to convict both Toy and Wong Sun.
Question: Was the arrest of Wong Sun the fruit of the poisonous tree?
4 As the Fourth Amendment initially only applied to the federal government, the exclusionary rule only applied
in federal court, unless states adopted their own rule. Mapp applied the Fourth Amendment to the states
through the Due Process Clause of the Fourteenth Amendment.
Moot Court Case Packet 2016
UvS-4
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Quotes/Holding: Yes. “The prosecutor candidly told the trial court ‘we wouldn’t have
found those drugs except that Mr. Toy helped us to.’ Further, there is no showing in this
case that the agent knew Hom Way to be reliable, and, furthermore, found nothing in the
circumstances occurring at Toy’s premises that would provide sufficient justification for his
arrest without a warrant. As to Wong Sun’s arrest, the [lower court] said there is no showing
that Johnny Yee was a reliable informer. Hence this is not the case envisioned by this Court
where the exclusionary rule has no application because the Government learned of the
evidence from an independent source; nor is this a case in which the connection between
the lawless conduct of the police and the discovery of the challenged evidence has become
so attenuated as to dissipate the taint. We need not hold that all evidence is fruit of the
poisonous tree simply because it would not have come to light but for the illegal actions of
the police. Rather, the more apt question in such a case is whether, granting establishment
of the primary illegality, the evidence to which the instant [this] objection is made has been
come at by exploitation of that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint. We think it clear that the narcotics were come at by the
exploitation of that illegality and hence that they may not be used against Toy.5
Terry v. Ohio, 392 U.S. 1 (1968)
Facts: A police officer walking his regular beat noticed two men whom he didn’t recognize.
He saw them proceed alternately back and forth along an identical route, pausing to stare in
the same store window, which they did for a total of about 24 times. Each completion of the
route was followed by a conference between the two. The officer then confronted the men
and patted down Terry’s overcoat. Feeling a gun there, the officer ordered the men into the
store, took the Defendant’s overcoat and found a gun in the pocket. The officer also found a
gun in the pocket of the second man. Both were arrested for carrying concealed weapons.
They moved to suppress [keep out] the gun evidence.
Question: Were the guns seized as a result of the pat-down search legally admitted into
evidence?
Quotes/Holding: Yes. The court spelled out some basic search and seizure principles.
“No right is held more sacred, or is more carefully guarded, by the common law than the
right of every individual to the possession and control of his own person, free from all
restraint or interference of others, unless by clear and unquestionable authority of law.” …
5 The Court applied the same rationale to Wong Sun.
Moot Court Case Packet 2016
UvS-5
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“We have recently held that the Fourth Amendment protects people, not places, and wherever
an individual may harbor a reasonable expectation of privacy, he is entitled to be free from
unreasonable governmental intrusion. Of course, the specific content and incidents of this
right must be shaped by the context in which it is asserted. For what the Constitution forbids
is not all searches and seizures, but unreasonable searches and seizures.” …
“But this is only partly accurate. For the issue is not the abstract propriety of the police
conduct, but the admissibility against petitioner of the evidence uncovered by the search
and seizure [The issue is not whether or not the police acted correctly, but whether or not the
evidence they found should be admitted in court]. Ever since its inception [creation], the rule
excluding evidence seized in violation of the Fourth Amendment has been recognized as a
principal mode of discouraging lawless police conduct. Thus, its major thrust is a deterrent
one, and experience has taught that it is the only effective deterrent to police misconduct in
the criminal context, and that, without it, the constitutional guarantee against unreasonable
searches and seizures would be a mere form of words.
“The rule also serves another vital function — the imperative of judicial integrity. Courts
which sit under our Constitution cannot and will not be made party to lawless invasions of
the constitutional rights of citizens by permitting unhindered governmental use of the fruits
of such invasions. Thus, in our system, evidentiary rulings provide the context in which the
judicial process of inclusion and exclusion approves some conduct as comporting with
constitutional guarantees and disapproves other actions by state agents. A ruling admitting
evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct
which produced the evidence, while an application of the exclusionary rule withholds the
constitutional imprimatur.”[If the judges allow the evidence into trial, they are basically
saying the conduct of the police was legal.] …
“We conclude that the revolver seized from Terry was properly admitted in evidence against
him. At the time he seized petitioner and searched him for weapons, Officer McFadden had
reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary
for the protection of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully restricted his search
to what was appropriate to the discovery of the particular items which he sought. Each case
of this sort will, of course, have to be decided on its own facts. We merely hold today that,
where a police officer observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot and that the persons with whom
he is dealing may be armed and presently dangerous, where, in the course of investigating
this behavior, he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others’ safety, he is entitled for the protection of himself and others in the area
Moot Court Case Packet 2016
UvS-6
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to conduct a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.”
Brown v. Illinois, 422 U. S. 590 (1975)
Facts: Mr. Brown was arrested by the police for the purpose of investigating his possible
connection with a murder. This arrest was illegal. After being given his Miranda rights and
then shown some inculpatory [incriminating] evidence, Mr. Brown confessed to being
involved in the murder.
Question: Can his confession be used in court and what factors determine its admissibility?
Quotes/Holding: The Court did not allow the confession to come into evidence, but more
importantly, it set out a three-factor test to determine whether illegally obtained evidence can
be admitted. These factors, “the temporal proximity [closeness in time] of the arrest and/or
the confession, the presence of intervening circumstances [which would attenuate the taint],
and, particularly, the purpose and flagrancy [outrageousness] of the official misconduct
[what the officer did wrong], are all relevant.”
Delaware v. Prouse, 440 U. S. 648, 663 (1979)
Facts: Without having a particular reason, a police officer pulled a Mr. Prouse off the road.
When the officer got to the car, he smelled marijuana and saw some in plain sight. Mr.
Prouse was arrested and convicted.
Question: If an officer does not have a reason to stop a motorist, e.g. missing taillight,
driving erratically, etc., can the officer stop a motorist just to check license and registration?
Quotes/Holding: No. “We hold that except in those situations in which there is at least
articulable [spelled-out] and reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an occupant is otherwise subject
to seizure for violation of law, stopping an automobile and detaining the driver in order to
check his driver’s license and the registration of the automobile are unreasonable under the
Fourth Amendment. We hold only that persons in automobiles on public roadways may not,
for that reason alone, have their travel and privacy interfered with at the unbridled discretion
of police officers.”
Moot Court Case Packet 2016
UvS-7
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Taylor v. Alabama, 457 U. S. 687, 691 (1982)
Facts: In connection with a grocery store robbery and based upon an uncorroborated tip,
police arrested and questioned Mr. Taylor. After police told him (falsely) his fingerprints had
been found on one of the bags, he confessed.
Question: Should the confession be suppressed as having been obtained illegally, and
therefore the fruit of the poisonous tree?
Quotes/Holding: Yes. “Finally, (even though) the State argues that the police conduct here
was not flagrant or purposeful …, (Nonetheless), the police effectuated an investigatory
arrest without probable cause, based on an uncorroborated informant’s tip, and involuntarily
[against Mr. Taylor’s will] transported petitioner to the station for interrogation in the hope
that something would turn up. The fact that the police did not physically abuse petitioner,
or that the confession they obtained may have been voluntary for purposes of the Fifth
Amendment, does not cure the illegality of the initial arrest.”
Segura v. United States, 468 U.S. 796 (1984)
Facts: Acting on information that petitioners (the four people named below) probably were
trafficking in cocaine from their apartment, New York Drug Enforcement Task Force agents
began a surveillance of petitioners. They saw a Mr. Colon deliver a bulky package to a Ms.
Parra at a restaurant parking lot, while Mr. Segura and a Mr. Rivudalla-Vidal chatted inside
the restaurant. The agents followed Parra and Rivudalla-Vidal to their apartment and stopped
them. Parra was found to possess cocaine, and she and Rivudalla-Vidal were immediately
arrested. After being advised of his constitutional rights, Rivudalla-Vidal admitted that he
had purchased the cocaine from Mr. Segura and confirmed that Mr. Colon had made the
delivery at the restaurant. Task Force agents were then authorized to arrest petitioners, but
were advised that a search warrant for petitioners’ apartment probably could not be obtained
until the following day, so the agents should secure the premises to prevent destruction of
evidence. Later that same evening, the agents arrested petitioner Segura in the lobby of
petitioners’ apartment building, took him to the apartment, knocked on the door, which was
opened by Mr. Colon. They entered the apartment and conducted a limited security check
of the apartment. They observed, in plain view, various drug paraphernalia. Mr. Colon was
then arrested, and both petitioners were taken into custody. Two agents remained in the
apartment await for the search warrant, which was issued 19 hours after the initial entry into
the apartment. They then searched and found cocaine and records of narcotics transactions,
which they seized.
Moot Court Case Packet 2016
UvS-8
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Question: Was the evidence found after the search warrant had issued still the fruit of the
poisonous tree, or did the valid search warrant attenuate the taint of that evidence?
Quotes/Holding: The only issue here is whether drugs and the other items not observed
during the initial entry and first discovered by the agents the day after the entry, under an
admittedly valid search warrant, should have been suppressed. The valid search warrant
attenuated the taint.
“The suppression or exclusionary rule is a judicially prescribed remedial measure, and,
as with any remedial device, the application of the rule has been restricted to those areas
where its remedial objectives are thought most efficaciously [best] served. Under this Court’s
holdings, the exclusionary rule reaches not only primary evidence obtained as a direct result
of an illegal search or seizure, but also evidence later discovered and found to be derivative
[direct result of] of an illegality or fruit of the poisonous tree. It extends as well to the indirect
as the direct products of unconstitutional conduct.
Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject
to exclusion. The question to be resolved, when it is claimed that evidence subsequently
obtained is tainted or is fruit of a prior illegality, is whether the challenged evidence was come
at by exploitation of (the initial) illegality, or instead by means sufficiently distinguishable to
be purged of the primary taint [i.e., the evidence was found in a way different enough that
its discovery did not depend on the illegal police behavior].
“It has been well established for more than 60 years that evidence is not to be excluded
if the connection between the illegal police conduct and the discovery and seizure of the
evidence is so attenuated as to dissipate the taint. It is not to be excluded, for example, if
police had an independent source for discovery of the evidence:” …
“In short, it is clear from our prior holdings that the exclusionary rule has no application
(where) the Government learned of the evidence from an independent source.” …
“Our conclusion that the challenged evidence was admissible is fully supported by our
prior cases going back more than a half century. … Our cases make clear that evidence will
not be excluded as fruit unless the illegality is at least the but for cause of the discovery of
the evidence. Suppression is not justified unless the challenged evidence is in some sense
the product of illegal governmental activity. The illegal entry into petitioners’ apartment did
not contribute in any way to discovery of the evidence seized under the warrant; it is clear,
therefore, that not even the threshold but for requirement was met in this case.”
Moot Court Case Packet 2016
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City of Indianapolis et al. v. Edmond et al., 4531 U.S. 32 (2000)
Facts: The city operated vehicle checkpoints on its roads in an effort to stop unlawful drugs.
Question: Is this type of checkpoint stop legal?
Quotes/Holding: No. ”We have never approved a checkpoint program whose primary
purpose was to detect evidence of ordinary criminal wrongdoing. Because the primary
purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary
criminal wrongdoing, the program contravenes [violates] the Fourth Amendment.”
Hudson v. Michigan., 547 U.S. 586 (2006)
Facts: Police gave only a few seconds warning before they opened the front door of Hudson’s
house to execute a search warrant in violation of the “knock and notice” rule.
Question: If there is an initial illegality by the police, did the evidence obtained by the
initial illegality, come as a result of the illegality [fruit of the poisonous tree] or was there an
attenuation [reduction of strength of connection] that cut off the original illegal act?
Quotes/Holding: “Attenuation also occurs when, even given a direct causal connection,
the interest protected by the constitutional guarantee that has been violated would not be
served by suppression of the evidence obtained. The penalties visited upon the Government,
and in turn upon the public, because its officers have violated the law must bear some
relation to the purposes which the law is to serve.”
“Suppression of evidence, however, has always been our last resort, not our first impulse.
The exclusionary rule generates substantial social costs, which sometimes include setting the
guilty free and the dangerous at large. We have therefore been cautious against expanding
it, and have repeatedly emphasized that the rule is costly toll upon truth-seeking and law
enforcement objectives presents a high obstacle for those urging its application. We have
rejected indiscriminate application of the rule, and have held it to be applicable only where
its remedial objectives are thought most efficaciously served—that is, where its deterrence
benefits outweigh its substantial social costs.”
Herring v. United States, 555 U. S. 135, 141 (2009)
Facts: A police officer learned that Mr. Herring had driven to the Sheriff’s Department to
retrieve something from his impounded truck. Given that Mr. Herring was no stranger to law
enforcement, the officer asked the records clerk to check for any outstanding arrest warrants.
The clerk found one, so the officer arrested Mr. Herring. During the search incident to his
arrest, the police found methamphetamine and a gun (which was illegal as Mr. Herring
was an ex-felon). It turned out that due to a clerical error in police department records, Mr.
Moot Court Case Packet 2016
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Herring did not have an outstanding warrant. By the time this information was relayed to the
arresting officer, the gun and methamphetamine had already been found.
Question: Should the evidence found as result of an illegal arrest be suppressed if the arrest
was made on a good-faith mistake?
Quotes/Holding: No. “The fact that a Fourth Amendment violation occurred—i.e., that a
search or arrest was unreasonable—does not necessarily mean that the exclusionary rule
applies. Indeed, exclusion has always been our last resort, not our first impulse, and our
precedents establish important principles that constrain application of the exclusionary
rule.”
“First, the exclusionary rule is not an individual right and applies only where it results
in appreciable deterrence. We have repeatedly rejected the argument that exclusion is a
necessary consequence of a Fourth Amendment violation.” …
“In addition, the benefits of deterrence must outweigh the costs. We have never suggested
that the exclusionary rule must apply in every circumstance in which it might provide
marginal [small] deterrence. To the extent that application of the exclusionary rule could
provide some incremental [smaller or larger] deterrent, that possible benefit must be weighed
against its substantial social costs. The principal cost of applying the rule is, of course, letting
guilty and possibly dangerous defendants go free—something that offends basic concepts
of the criminal justice system. The rule’s costly toll upon truth-seeking and law enforcement
objectives presents a high obstacle for those urging its application.”
Arizona v. Gant, 556 U. S. 332 (2009)
Facts: After Rodney Gant was arrested for driving with a suspended license, handcuffed, and
locked in the back of a patrol car, police officers searched his car and discovered cocaine in
the pocket of a jacket on the backseat.
Question: Was the search legal?
Quotes/Holding: No. “Police may search a vehicle incident to a recent occupant’s arrest
only if the arrestee is within reaching distance of the passenger compartment at the time of
the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest
[evidence supporting the reason for the arrest]. When these justifications are absent, a search of
an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another
exception to the warrant requirement applies.”
Moot Court Case Packet 2016
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Davis v. United States, 564 U. S. 229, 237 (2011)6
Facts: Police made a routine traffic stop. As a result, they arrested the driver, Stella Owens,
for drunk driving and the passenger, Mr. Davis, for giving a false name. Incident to the arrest
and while the two people were handcuffed in the back of two separate patrol cars, the
police searched the passenger compartment of Owens’s vehicle and found a revolver inside
Davis’s jacket pocket.
Question: Was this a legal search?
Quotes/Holding: “The Fourth Amendment protects the right to be free from unreasonable
searches and seizures, but it is silent about how this right is to be enforced. To supplement
the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the
prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”
… “That rule—the exclusionary rule—is a prudential doctrine, created by this Court to compel
respect for the constitutional guaranty. Exclusion is not a personal constitutional right, nor
is it designed to redress the injury occasioned by an unconstitutional search (exclusionary
rule unsupportable as reparation or compensatory dispensation to the injured criminal.)
The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment
violations. …[It] is calculated to prevent, not to repair. Our cases have thus limited the rule’s
operation to situations in which this purpose is thought most efficaciously served [produce
the desired result].” … “Because suppression would do nothing to deter police misconduct
in these circumstances [which include the fact that prior to the Gant case this action by the
police was not illegal (see note 6)], and because it would come at a high cost to both the
truth and the public safety. …” the exclusionary rule does not apply here.
Question 4 and Recent Police and Community Interactions
U.S. Supreme Court justices have created a legal framework in their discussions for and
against excluding evidence. The recent interactions between police and the public (stopping
and searching motorists or people on the street), make Question 4 “Does the deterrent effect
of excluding the evidence outweigh the social costs?” highly relevant today. So, in addition
to the legal issues raised by this question, the scoring attorneys will likely ask you to address
these issues in a social context as well. (Remember: Neither attorneys nor students are
permitted to cite anything outside the case packet—see Rules, §102 (2)).
6The arrest in Davis happened before the USSC decided Arizona v. Gant, but the ruling came down after the
Gant case was decided. The Court found the search in Davis legal, because the standard at that time permitted
the police to search anywhere in a car when they arrested someone. Under Gant, this search would have been
illegal. So while the ruling may be out-of-date, the rationale still is important and applicable today.
Moot Court Case Packet 2016
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Utah v. Strieff
Table of Authorities
Constitution
Bill of Rights, Fourth Amendment.............................................................................................3
Cases
Mapp v Ohio, 367 U.S. 643 (1961)..........................................................................................3
Wong Sun v. U.S., 371 U.S. 471(1963)....................................................................................4
Terry v. Ohio, 392 U.S. 1 (1968)..............................................................................................5
Brown v. Illinois, 422 U. S. 590 (1975)....................................................................................7
Delaware v. Prouse, 440 U. S. 648, 663 (1979)........................................................................7
Taylor v. Alabama, 457 U. S. 687, 691 (1982)..........................................................................8
Segura v. United States, 468 U.S. 796 (1984)...........................................................................8
City of Indianapolis et al. v. Edmond et al., 4531 U.S. 32 (2000) ...........................................10
Hudson v. Michigan., 547 U.S. 586 (2006)............................................................................10
Herring v. United States, 555 U. S. 135, 141 (2009)...............................................................10
Arizona v. Gant, 556 U. S. 332 (2009)...................................................................................11
Davis v. United States, 564 U. S. 229, 237 (2011)..................................................................12
Instant Case
Utah v. Strieff No. 14–1373. Argued February 22, 2016—Decided June 20, 2016.
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