Final Exam
Criminal Procedure
Professor Scherr
Instructions
1.
This is an in-class, closed-book exam . You may not refer to any materials during the
course of the exam .
2.
Please put your exam number on every page of the exam itself & on the cover of the
blue book you use .
3.
Multiple-choice Questions : Each multiple-choice question is worth 8 points . There
is only one correct answer to each multiple-choice question. Please do not write any
explanations on the exam . You will receive points only for correct answers . You
will not receive points for an explanation to a multiple-choice question .
4.
True/False Questions : Each true/false question is worth 8 points . Please mark true
or false . Do not provide any explanation for your answer . You will not receive any
points for an explanation to a true/false question .
5.
Short-answer Essays : Each short-answer essay question is worth 60 points . You
may use no more than six (6) blue book pages to answer each question . You may
write on only one side of the page . I will not read anything written on the second
side of a page . I will not read anything written beyond six (6) pages . Please write in
pen only . The grading on the short-answer essay will be based on the quality of the
analysis demonstrated in the written answer . Tell me what you think the "right
answer(s)" to the essay question is and also show me the basis for the answer or the
analytical sequence that led you to that answer .
6.
Unless a question specifically states otherwise, you are to apply only the federal
Constitution to your analysis
7.
All individuals mentioned in the exam are purely fictional characters .
entertaining, any similarity to actual individuals is purely coincidental .
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EXAM #
Multiple-Choice Questions
1.
Tom Brennan was tried and convicted of burglary in state court in New
Hampshire . He appealed his conviction to the New Hampshire Supreme Court arguing
that the search of his house was illegal under the Fourth Amendment to the US
Constitution . He lost the appeal in the NH Supreme Court .
Brennan asks you as his lawyer what further review of his conviction is available .
You tell him that :
A. His only option is a direct appeal to the US Supreme Court on a writ of
certiorari .
B . Because it is a state criminal conviction under a state statute, he has no further
appeals available .
C. The Federal District Court in New Hampshire can review his conviction on a
petition for a writ of habeas corpus as long as he has had "full & fair" litigation in state
court.
D. Options A & C are both available .
2.
The FBI has probable cause to believe that Jessica McCann committed a sequence
of bank robberies . They also have probable cause to believe that McCann moves around
from residence to residence once every week . They currently are aware that McCann is
living at 125 Gibbons Avenue in Derry, NH . They obtain a search warrant to search the
residence at 125 Gibbons Avenue .
When they go to 125 Gibbons Ave ., they knock on the door and an elderly
woman answers . When they ask her if McCann is home, the woman says that McCann
had moved out the day before and was now living at 127 Gibbons Avenue next door .
After searching 125 Gibbons, the police proceed to 127 Gibbons . There, they enter and
search the residence in which no one is home and find some of the proceeds of the bank
robberies . They later arrest McCann as she arrives at 127 Gibbons .
McCann is charged with several bank robberies and her counsel files a motion to
suppress the results of the 127 Gibbons Ave . search . The trial court should :
A. Grant the motion because the police did not have probable cause to believe
McCann was present at 127 Gibbons when they searched it .
B . Deny the motion because, even though it was an unconstitutional search, the
good-faith exception applies .
C. Deny the motion because they had probable cause to search 127 Gibbons .
D. Grant the motion based on a 4 'h Amendment violation other than A .
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EXAM #
Tony Trischka is stopped by Officer James D . Gilmore while driving home from
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law school late one evening . Once both vehicles stop, Trischka gets out of his car and
starts to walk back to Gilmore's cruiser . Gilmore quickly exits his police motor vehicle
as does his partner, Lyle Lovett. He tells Trischka to stay where he is at the rear of
Trischka's car . As Gilmore approaches Trischka, he notices Trischka trying to kick a
small object under his car. Gilmore reaches down, picks up the object and determines
that it is a clear vial with what appears to be marijuana in it . Gilmore arrests Trischka
and instructs Lovett to search the interior of Trischka's car . Lovett does so and finds
cocaine in a closed container located between the driver and passenger's seats .
Trischka is charged with possession of marijuana and with possession of cocaine .
His counsel files a motion to suppress only the cocaine . The trial judge should :
A. Deny the motion because of the automobile exception .
B. Grant the motion if Lovett did not have reasonable susp c on to search the
passenger compartment of the car .
C. Deny the motion for a reason other than A .
D. Grant the motion because the 4 th Amendment prohibits Lovett from searching
the closed container in this circumstance .
4.
With a valid search warrant based on probable cause that Mitch Dickinson was
storing $10,000 worth of crack cocaine in his house, the Winnetka, Illinois police went to
Dickinson's house . Prior to entering, the police did not "knock and announce ."
Dickinson's lawyer argues at a subsequent suppression hearing that the police are
required to knock and announce . That statement of the "knock and announce" rule is :
A. Incorrect because the police are not required to knock and announce if they have
a valid warrant based on probable cause .
B. Incorrect if the police had reasonable sus icion that the crack cocaine would be
destroyed .
C. Correct because the police can never enter a house without complymg with the
knock & announce rule.
D . Correct if Dickinson's lawyer can show that the police did not have probable
cause to believe the crack cocaine would be destroyed .
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EXAM #
5.
On August 26, 2998, Fred Furby boarded a bus in San Diego, California, for a trip
to Chicago, Illinois . Before boarding the bus, Furby placed his luggage, a green soft
canvas bag, next to the bus . Furby then boarded the bus . The bus driver placed the bag
in the luggage compartment located in the underside of the bus .
After traveling for several hours, the bus stopped in Cactus, New Mexico, at a rest
stop where the passengers and driver could use the rest rooms, buy food and stretch their
legs. All of the passengers got off and entered the restaurant .
While the passengers were in the restaurant, the Cactus Police decided to check
the bus for drug couriers . Two police officers ordered the driver to open the luggage
compartment . The police looked into the luggage compartment and saw the green bag .
The police could tell there was no name tag on it and suspected the bag might contain
drugs . The police removed the green bag from the luggage compartment and inspected it
using their hands to feel against the outer surface of the bag .
As one officer felt the green bag, he felt "several bundles about 4 x 8 inches
which were tightly wrapped." The officer squeezed the bundles . He concluded
positively, based on the squeeze, that they contained "bricks" of heroin . The officer
knew from prior drug seizures he had been involved in that heroin was frequently
transported wrapped in aluminum foil bricks of this size .
The police zipped open the bag and found ten aluminum foil wrapped packages
that contained heroin . The green bag also contained a Mexican passport with Furby's
name and picture . The police spotted Furby among the passengers and arrested him
immediately .
Furby is charged with possession of heroin with intent to sell . His trial counsel
files a motion to suppress the heroin . The trial judge should :
A. Grant the motion because the police did not have probable cause to search the
bus's luggage compartment .
B. Grant the motion for a reason other than A .
C. Deny the motion if the officer had reasonable suspicion to squeeze the bundles in
the green bag .
D. Deny the motion because has no reasonable expectation of privacy in his
luggage when traveling on a public bus .
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EXAM #
6.
John Gorka is suspected by the police of armed robbery . The police stop by
Gorka's Nightclub and ask him to come down to the police station for some questioning .
Gorka agrees to cone down after he closes the club in an hour . When Gorka arrives at
the police station, the police take him to an interview room off of the visitor's waiting
lounge .
The police ask Gorka a sequence of questions about the robbery . Gorka answers
all the questions with a variety of information as to his whereabouts at the time of the
robbery. When the questioning is over, Gorka leaves . At no point do the police inform
Gorka of his Miranda warnings nor do they obtain a waiver of his Miranda rights from
Gorka.
Two weeks later, the police develop further information that establishes that all
the information Gorka had told them during their interrogation of him was false as well
as eyewitness information that Gorka was the robber. The prosecution charges Gorka
with robbery . At trial, the prosecutor seeks to admit the answers Gorka gave during his
interrogation by the police .
Gorka's answers to the police interrogation are :
A. Inadmissible because Gorka did not waive his Miranda rights before the
interrogation.
B. Admissible because Gorka implicitly waived his Miranda rights by continuing to
answer questions durmg the interrogation .
C. Inadmissible because Gorka's 6th Amendment right to counsel was violated.
D. Admissible .
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EXAM #
The police suspect Donnie Allison in a gangland-style murder . After a lengthy
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surveillance, they arrest Allison only for an unrelated assault . They take him to the
police station where they read him Miranda warnings, which he waives orally and in
writing . After about I hour of interrogation on the assault, one of the interrogating
officers asks Allison about the murder . Allison says, "Do you think this is the point I
should talk to a lawyer?" The police ignore his question and continue interrogating
Allison about the murder .
Ten minutes of questioning ensue and Allison says, "I'm thinking about maybe
talking to a lawyer ." Again, the police ignore his statement and continue interrogation .
One hour later, Allison confesses to the murder . Allison is subsequently charged with the
murder and with the assault .
Before Allison's trial, his lawyer moves to suppress the confession as illegally
obtained . The judge should :
A. Grant the motion to suppress because Allison confessed to the murder when the
police had him in custody only for the assault .
B.
Grant the motion to suppress because the police violated the protections of
Edwards v. Arizona.
C. Deny the motion to suppress .
D. Deny the motion to suppress because Miranda is offense-specific .
8.
Officer Ebel sees Tom Therrien's red car drive by . As a part of an occasional
practice on the part of the Portsmouth police, Ebel decides to pull Therrien over for a
license and registration check . He does so and asks Therrien for his license and
registration . Therrien provides them . Ebel then asks Therrien if he can search his car .
Therrien agrees . Ebel finds the remnants of a marijuana cigarette on the floor of the front
passenger's side . He arrests Therrien for possession of marijuana .
Before trial, Therrien's attorney files a motion to suppress the marijuana . The
trial judge should:
A. Deny the motion because Therrien consented to the search of his car .
B . Deny the motion because of the inevitable discovery doctrine .
C. Grant the motion because of the invalid consent .
D . Grant the motion because Ebel did not have probable cause to stop Therrien's
car.
EXAM #
True/False Questions
9.
The police suspect J . P. Bonmot of murder but have ongoing concerns as to
whether they have enough evidence to prove a charge of homicide beyond a reasonable
doubt to a jury . On the advice of the supervising assistant District Attorney, they decide
to visit Bonmot at his home in up-scale Portsmouth, NH . Two plainclothes detectives,
Bjorn Lange and Ed LeBoeuf, make the visit, identifying themselves as police detectives
when Bonmot answers the door . Leboeuf is 6 feet 4 inches tall and Lange is 6 feet 2
inches tall . Bonmot is 5 feet 6 inches tall .
The three sit down in Bonmot's living room and Lange begins asking Bonmot
questions about the circumstances of the fight that resulted in the death of the victim and
in which they suspect Bonmot participated . Bonmot answers all their questions and the
conversation continues for 1 1/2 hours . At that point, Bonmot tells Lange and LeBoeuf
that he has to go to the bathroom . He then gets up and leaves the room .
LeBoeuf immediately comments to Lange in a hushed voice, "This guy did it ;
he's guilty as sin; look at all the inconsistencies between what he is saying and what all
the other witnesses are saying ." Lange responds by saying, "I agree; this guy is leaving
this house in our custody once this conversation is over, no matter what ." LeBoeuf says,
"I'm with you on that. As far as I'm concerned, he's in custody now but let's keep
asking questions for a while and see how much deeper this fool digs his grave ."
At that point, Bonmot returns to the room and sits down . LeBoeuf and Lange
continue to question him for another hour before they take him down to the police station
and book him on the murder charge . During this period, Bonmot inculpates himself
repeatedly. At no point during their questioning of Bonmot at his house did they read
him his Miranda rights nor did Bonmot waive them .
Before trial, Bonmot's defense counsel files a motion to suppress his repeated
inculpatory statements because of a violation of his Federal Constitutional rights . The
trial court should grant the defendant's motion to suppress .
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EXAM #
10.
Same facts as above. At the end of their conversation with Bonmot, LeBoeuf
and Lange take Bonmot down to the police station for booking . Later that day, Bonmot
is released on bail . Two weeks later, he appears at arraignment with counsel where he
pleads not guilty and again is released on bail . The next day, as Bonmot is buying
croissants at Bread & Chocolate, he notices Lange in line in front of him . Lange turns to
him and says, "So what kind of bulls
(expletive deleted) defense are you and your
lawyer cooking up?" Bonmot and Lange then engage in further conversation during
which Bonmot makes further inculpatory statements about his whereabouts on the day of
the murder .
Before trial, Bonmot's defense counsel files a motion to suppress the inculpatory
statements made to Lange at Bread & Chocolate because of a violation of his Federal
Constitutional rights . Assume for the purpose of this question that the trial court denied
the motion to suppress described in question ## 1 . The trial court should grant the motion
to suppress because of a Rhode Island v. Innis violation .
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11 .
The only time the police may enter someone's home without a search warrant to
arrest that person is when they have an arrest warrant and probable cause to believe the
person s in the home.
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12.
Federal narcotics agents receive information that a shipping crate in transit
between Panama and Portsmouth, NH contains cocaine. They observe the crate as it
arrives at the airport in Portsmouth and follow it at a distance as it is delivered to Davie
Brubeck's house . They obtain an arrest warrant the same day as the delivery from a
judge for Brubeck .
Brubeck is arrested the following day as he is returning from Mexico City to
Portsmouth . Shortly after the arrest, the police arrive at Brubeck's place of employment
where Brubeck's pickup is parked. They see the crate sitting in the open bed of the
pickup . They transport the crate to the Portsmouth police station and open it there . They
find two kilos of cocaine . Brubeck is subsequently charged with possession of cocaine
with intent to distribute .
Before trial, Brubeck's defense lawyer, Mark Twomey, files a motion to suppress
challenging the seizure and opening of the crate . The trial court rules that the seizure and
the search was based on probable cause and therefore was constitutional . The trial
court's ruling is correct .
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EXAM #
In July 2005, terrorists engaged in a sequence of bombings in the London subway
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system As a result, later in July, the New York City police began to search passengers'
bags at randomly selected subway entrances . The police would search bags at random
intervals - every 5`h or 12" passenger entering the station, for example . Passengers could
refuse to open their bags and could walk away, but they were not allowed to enter the
subway with a bag they had not allowed the police to search . This conduct by the police
would be constitutional under the 4'h Amendment only if the police had probable cause to
search the bags .
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14.
The 4 °i Amendment exclusionary rule's attenuation doctrine cannot operate to
exclude the testimony of a live witness .
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15.
The police have arrested Jennifer McDonald for fraud . They bring her to the
police station and sit her in an interview room where she is cuffed to the chair . Officer
Katie Leduc enters the room and reads McDonald her Miranda rights. When Leduc asks
McDonald whether she wishes to waive her rights, McDonald says, "I work at a law
school ; I'm no fool. I choose to remain silent ."
Officer Leduc says nothing . She uncuffs McDonald ; takes her to the cellblock
and locks her in a cell. Five hours later, Leduc walks by and casually asks, "Do you want
to answer any questions now?" McDonald thinks for a minute and then says, "Why not?
It's not like this is any big deal ." Leduc re-reads McDonald her Miranda rights .
McDonald acknowledges understanding them and gives an oral and written waiver . She
then provides the police with a full confession .
Defense counsel files a motion to suppress . The trial judge should grant the
motion based on Michigan v. Mosely .
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Short-Answer Essays
At approximately 3 :00 p .m. on October 13, 2005, Sergeant James Brackett of the
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Nirvana Police Department telephoned his brother, Captain Alan Brackett, of the Eden
Police Department, regarding an anonymous telephone tip that the sergeant had received
about ten minutes earlier concerning a Gina Kenton . The informant, a male unknown to
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EXAM #
the sergeant, alleged that he had seen four pounds of marijuana in the trunk of Kenton's
car. Sergeant Brackett testified at a subsequent suppression hearing :
"The caller informed me that Gina Kenton had a blue Cadillac and that plate number
was 571860 . The caller also stated that she worked at Heaven Precision Company on
35 Progress Avenue in Nirvana and that she'd be leaving work at 3 :00 and going back
to her residence in Eden and from there, she would be making deliveries of marijuana ."
Captain Brackett knew Kenton ; he had seen her associating with drug users and sellers
during 2000, 2001 and 2002, and he had once conducted a drug arrest of persons seated
in a car in which she was a passenger . Moreover, during the summer of 2004, Captain
Brackett received a tip from a "confidential reliable informant" that Kenton sold
marijuana. Last, Captain Brackett testified that the Nirvana Police Department issued
two reports in the summer of 2004 "about a male caller calling stating that he had
observed pounds of marijuana in Gina Kenton's truck ."
Following receipt of the tip recounted above by Sergeant Braekett, the Nirvana police
confirmed that the described car was parked in the Heaven Precision Company parking
lot and was registered to Kenton . At approximately 3 :00 p.m., undercover officers
observed a woman enter the car and drive off. The officers attempted to follow the car
but lost it in traffic .
Captain Brackett was informed of these happenings and began surveillance of Kenton's
home in Eden . He watched as Kenton arrived, parked her car, and entered her house .
For about two hours, nothing of consequence happened . Then, at approximately 5 :00
p .m ., Kenton left her house, entered her car, and drove away . Captain Brackett followed
her for one-half to three-quarters of a mile, observed no suspicious or illegal activity, and
"pulled her over ."
Upon approaching Kenton's car, Captain Brackett informed her that she had been stopped
because he believed that she was transporting controlled drugs . He then asked her to sign
a consent form in order to give him permission to search her car . She signed the consent
form. Captain Brackett arrested Kenton after finding approximately four pounds of
marijuana in the trunk .
Kenton was transported to the Nirvana police department . There, she was allowed to call
her mother . Kenton told her mother that she'd been arrested but she expected to be out
soon . Within two hours of the phone call, Captain Brackett read Kenton her Miranda
rights . Kenton told Brackett that she was willing to waive her rights and talk with him .
She then began describing her drug-dealing operation . Unbeknownst to Kenton, her
mother, immediately after the phone call, had called and retained the family lawyer,
Charles Temple . Temple immediately went to the Nirvana police department where he
demanded to see Kenton; asserted her right against self-incrimination and ordered that
any interrogation cease until he had a chance to talk with Kenton . Temple made those
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EXAM #
statements before Kenton had even begun to talk with Brackett . The Nirvana police told
Temple that they would get hack to him on his requests .
Once Kenton had completed her lengthy description of her drug-dealing operation, the
Nirvana police allowed her to talk with Temple . She was then charged with possession
of four pounds of marijuana with the intent to distribute it and with conspiracy to sell
drugs .
You are now Kenton's defense lawyer . What arguments do you have to suppress
the four pounds of marijuana seized from her car and the statements she gave to the
police at the police department? Identify the strengths and weaknesses of each of
the arguments you articulate .
17 .
The police had, over time, accumulated reliable information that David Page
operated a large cocaine-distribution network, that he and his accomplices often resorted
to violence, and that they kept a small arsenal of weapons in his home .
One day, the police received reliable information that a large brown suitcase with leather
straps containing a supply of cocaine had been delivered to Page's home and that it
would be moved to a distribution point the next morning . The police obtained a valid
search warrant to search for and seize the brown suitcase and the cocaine and went to
Page's house where he and his accomplices lived .
The police knocked on Jason's door and called out, "Police . Open up . We have a search
warrant ." After several seconds with no response, the police repeated, "Police . Open up .
We have a search warrant"
A voice they did not recognize called out, "I'll be right
there ." After waiting another 15-20 seconds without any further response, the police
forced the door open and entered Jason's house . Present in the living room of the house
as the police entered it were Page and two other people who had stopped by to see Page's
wife, Barbara Shim, Suzanne Goin and Thomas Keller . Goin and Keller had never been
in the house before .
The lead detective, James Pons, told the three, "Nobody's going anywhere while we
execute this search warrant ." He then asked if there was anyone else in the house .
Nobody answered . Poris said, "Fine, have it your way ." While the other detectives
searched for the suitcase, Pons patted down each of the three for his safety .
He felt an object that felt somewhat like a drug pipe in Goin's coat pocket as he touched
the outside of the pocket . He reached in and recovered what was a drug pipe that
appeared to have crack cocaine in it . Keller immediately said, "That's mine, not hers" in
reference to the pipe . Poris arrested both Goin and Keller for possession of crack
cocaine .
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EXAM #
Meanwhile, while Paris was dealing with the three in the living room, one officer went
looking for the suitcase, which he immediately found in the adjoining kitchen - open and
filled with cocaine . After finding the suitcase, the officer, Emeril Legasse, went from
room to room on each of the house's three floors looking for other people . In the thirdfloor bedroom, Legasse saw a baggie of what appeared to be marijuana and seized it .
Page was later charged with possession of the suitcase cocaine with intent to sell and also
with possession of marijuana . Goin was charged with possession of the crack cocaine in
the pipe, as was Keller.
Prior to their respective trials, Goin's, Keller's and Page's lawyers all file motions to
suppress alleging violations of Federal Constitutional rights .
What are the arguments Page's lawyer has to suppress the suitcase cocaine and the
marijuana? What are the arguments Gain's lawyer has to suppress the crack
cocaine? What are the arguments Keller's lawyer has to suppress the crack cocaine
and the statement he made to the police about the pipe? As to each, what are the
strengths and weaknesses of these arguments?
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