Professor Richard A.

Leo
Spring 2012 Criminal Procedure
Model Outline For Final Exam

There was one defendant and five issues in this essay exam per the call of the question.

A. Cost’s Statement

When Cost was stopped (for running a red light) by Officers Dawson and Hopkins, he
was in custody for purposes of the 4th Amendment (because he was seized, and a reasonable
person would not feel free to leave), but he was not in custody for purposes of Miranda (see
Berkemer v. McCarthy; roadside questioning is not custodial for Miranda purposes because it is
brief and public, though it can become custodial; here it clearly did not since the questioning was
so brief). Since Cost was not in custody, no Miranda warnings were required; thus, it was
unnecessary for him to be read any rights, and fact that one of the officers read him right to
remain silent is irrelevant, even though he was interrogated briefly. Nor was there any
conceivable 14th Amendment due process violation here, and of course the 6th Amendment
Massiah doctrine does not apply because adversary proceedings had not yet commenced.
Accordingly, Cost incriminating statement that he sold a couple blunts to some kinds in Golden
Gate park is admissible.

B. The Baggy of Heroin

Cost’s incriminating statement is also a valid basis for the officers to order him out of the
car and arrest him for the sale and distribution of Marijuana. Gant permits police to search a
vehicle incident to a recent occupant’s arrest if the arrestee is unsecured and 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. Here Cost is unsecured and within reaching
distance of the passenger compartment while Officer Hopkins is searching the man purse on the
front passenger seat. Accordingly, per Gant this is a valid search incident to arrest and the baggy
of heroin will be admissible. Note that the arrest (for the sale and distribution of marijuana) is
valid because Cost had confessed to selling marijuana to a minor.

Gant also holds that police may search a vehicle incident to a recent occupant’s arrest if it
is reasonable to believe that the vehicle contains evidence of the offense of arrest. One could
argue that because Cost confessed to selling marijuana to a minor, the police could have searched
the man purse incident to arrest on this ground as well because it is reasonable to believe that
someone who sells marijuana to minors may have continue to have some hidden in his car. A
counter-argument would be that Cost, though admitting the prior sale, stated he no longer
possessed any marijuana.

Another basis for arguing that police should have been able to search the man purse is
that Acevedo holds that if police have probable cause to search a car, they can search any
container in the car. The question here is whether Cost’s confession, which provided the
probable cause for his arrest, also supplied probable cause to believe that items in the car, such as

1
the man purse, would contain additional marijuana. The police might argue again that people
who sell marijuana often possess it in closed containers in their cars, such as man purses; Cost
might argue again that just because he sold some a couple weeks ago does not create a “fair
probability” or “substantial basis” to believe that there would be any in the car, especially since
he was honest about the sales with the police and also told them that he no longer has any
marijuana.

Even if police lose here on Acevedo grounds, they will win on the first of the two
arguments they made per Gant argued above, and probably on both. Accordingly, the heroin is
admissible.

C. The Gun

The police will argue that once they found the heroin, they now had probable cause per
Acevedo to search the rest of the car for contraband, especially when you combine the discovery
of heroin with the confession to selling marijuana (note that Cost would argue that the heroin
was in an amount consistent with personal use and therefore does not furnish probable cause for
sale and distribution of drugs or of marijuana since it is not marijuana). If the police are right,
the glove compartment would be within the scope of such a search because it could contain
contraband. That permits them to search the glove compartment. A similar argument for the
legitimacy of the search of the glove compartment can be made per the second part of the
holding in Gant: i.e., that incident to Cost’s arrest, the police have reason to believe that there
may be evidence of the crime of arrest (sale and distribution of marijuana) in the car and thus
possibly and reasonably in the glove compartment.

Whether they can seize the gun, however, is a separate issue. It is in plain view, but does
not meet the requirement for a plain view seizure: namely, the gun is not incriminating on its
face. Unlike contraband, guns are not necessarily illegal, and at the time of the glove
compartment search the police had no reason to believe. Thus, while the search of the glove
compartment was legal, the gun will not be admissible into evidence.

Some students argued that the gun would be inevitably discovered as part of an inventory
search. Perhaps, but this begs a number of questions. First, inventory searches are only
permissible when a car has been lawfully impounded. There is nothing in the fact pattern that
tells us the car was impounded (and we did not cover in class or our readings the bases for
lawfully impounding vehicles). Second, even if the car had been lawfully impounded, the police
can only conduct an inventory search if they have a standard protocol for doing so, and, third,
they could only search the glove compartment and seize items from it if that was part of their
standard protocol. If all three conditions were met, then yes the gun would likely have been
“inevitably discovered,” and inevitable discovery is an exception to the fruit of the poisonous
tree doctrine and thus the gun may have been inevitably discovered.

2
 D. The Checks

If the police at this point have probable cause to search the car per Acevedo or reason to
believe there is evidence of the offense of arrest per Gant, then they can search trunk, including
containers in the trunk that are within the scope of the search. The argument that police have
probable cause to search the car is that at this point Costs has admitted to selling marijuana to
minors and has been found to be in possession of contraband (heroin). The police would argue
one can infer from these facts that there is a “fair probability” or “substantial basis” to believe
that there will be more drugs in the car, and therefore they are entitled to search the trunk, as well
as items within the trunk that could contain drugs (or at least marijuana or additional heroin) as
clearly the briefcase could. It’s hard for me to imagine the prosecution losing this argument,
regardless of what Cost has written on the briefcase. So the search of the trunk, and containers in
the trunk will probably be found legitimate on this ground

The prosecution’s second argument that the search of the trunk, and containers within the
trunk, is lawful relies on Gant and follows a similar logic: Given that Cost confessed to
marijuana sales and has been found in possession of heroin in a bag in the car, it is reasonable to
belief that there may be additional evidence of marijuana (crime of arrest) in the car or containers
in the car, including in the trunk or containers in the trunk. Cost may have a stronger argument
here than he did in response to the prosecution’s argument re Acevedo in the first paragraph of
this sub-section since here the prosecution would have to establish that there was reason to
believe only that there was marijuana (evidence of arrest) rather than contraband in the trunk,
and to that point the police had not found any marijuana on Cost’s person, in the man-purse or in
the glove compartment, and thus there was no reason to believe they would find it in the trunk or
in a container in the trunk. Cost had admitted to selling some marijuana two weeks earlier, but
not to possessing any on his person or in the car.

Even if the prosecution succeeds on either argument (per the Acevedo “probable cause”
rationale or the Gant “reason to believe” rationale”), that only justifies the search. It does not
necessarily justify the seizure. Here the police find checks in plain view in the locked briefcase
in the trunk. It is not clear from the fact pattern whether these checks are obviously
incriminating and thus evidence of a crime. If they are, then all three prongs of the plain view
seizure doctrine are met and they are admissible; if they are not, then one of the requirements of
the plain view seizure doctrine is not met, and they are not admissible as evidence at trial.

As with the gun, some students argued that the checks would be inevitably discovered as
part of an inventory search. Again, this begs several. Inventory searches are only permissible
when a car has been lawfully impounded, and there is nothing in the fact pattern that tells us the
car was impounded. (Moreover, we did not cover in class or our readings the bases for lawfully
impounding vehicles). In addition, even if the car had been lawfully impounded, the police can
only conduct an inventory search if they have a standard protocol for doing so, and they could
only search the trunk and seize items from it if that was part of their standard protocol. If all
these conditions were met, then yes the checks would likely have been “inevitably discovered,”
and this exception to the exclusionary rule (i.e., exception to the fruit of the poisonous tree
doctrine) would allow for the admissibility of the checks.

3
 E. The Marijuana Cigarettes

Whether the marijuana cigarettes are admissible is pretty straightforward. Per Lafayette,
this is an arrest inventory. If the police department has an administrative rule in place that allows
for arrest inventories, and if the police here followed standard administrative procedures, then
Cost’s pockets were lawfully searched and his marijuana cigarettes lawfully seized per the
police’s community-care taking function (that provides the basis for the inventory exception to
the warrant requirement) and the marijuana cigarettes are admissible. (Note that there is no
“inevitable discovery” issue here: if there was no standard administrative rule in place or the
police did not follow standard administrative procedures, then the marijuana cigarettes are not
admissible and they would not have been inevitably discovered).