Criminal Procedure
Professor Moskovitz
Fall, 1998
PART II: ESSAY QUESTION
Recommended Time for this Part: 60 to 75 minutes
To: My law clerk
From: Judge Johnnie B. Goode
Willie Clinton (W) has been charged with statutory rape and Ali Gore (A) has been charged with furnishing narcotics to a minor. Each of the them moves to suppress certain evidence obtained by Berkeley Police Officer Kenny Starr (S). At the hearing on the motion to suppress, Officer Starr testified as follows:
Q: Why did you encounter the defendants, Officer Starr?
A: I was driving down fraternity row in Berkeley, when I saw a young woman run out of the Omicron Iota Tau Epsilon house, usually called the "White House." They are known as a pretty rowdy bunch, and they had a party that night. She said that she was in awe of the fraternity president, Willie Clinton. She said she had a little too much to drink and Willie "took advantage" of her, as she put it. She said, "He did something rude with a cigar."
Q: Can you tell us any more about her?
A: She said her name was Monica. She was pretty young, maybe 17, and a bit on the chubby side. Talked like a valley girl, with lots of "likes" and "you knows."
Q: What did you do next?
A: Monica said Willie was white, about 6 feet tall, and had a Southern accent. I thought he might have committed forcible rape or statutory rape, so I went looking for him. About a block away, I saw two young men walking. I didn’t know them then, but they turned out to be Willie and his fraternity vice-president, Ali. Willie was about 6 feet tall and white. I went up to them and said, "Hang on a minute, boys, I need to check something." They stopped and Willie said, "What y’all want, Officer?" I frisked Willie, and felt a long object in his shirt pocket. I pulled it out, and it was a cigar. I said, "So this is the smoking gun." He said, "Don’t believe a word that woman says, Officer. She’s just trailer trash." I
(over)
arrested him and put him in the police car. I told him his Miranda rights.* He said, "A lawyer would be a real help to me right now." I said, "I’ll help you myself if you convince me that you didn’t do anything wrong." He said, "We had some fun, but I never forced her to do anything." Ali then said, "Yeah. I gave her a little coke, and she seemed pretty happy about it."
Clinton moves to suppress the cigar and his two statements ("Don’t believe . . ." and "We had some fun. . .). Gore moves to suppress his statement, "Yeah, I gave her. . . ." Please advise me on how I should rule on their motions.
* Assume that these warnings were correctly stated.
Criminal Procedure, Professor Moskovitz, Fall, 1998
OUTLINE OF ISSUES
I. Cigar
A. Fruit of stop.
Did S have reasonable suspicion? Not likely.
B. Fruit of patdown.
Did S have reasonable belief that W was armed & presently dangerous? Not likely.
C. Fruit of reach into pocket.
Did S have reasonable belief that cigar was a weapon? Not likely, as soft.
II. "Don’t believe a word that woman says, Officer. She’s just trailer trash."
A. Fruit of stop, frisk, or patdown? Seems so.
B. Fruit of Miranda violation?
1. Custody? No. Compare Berkemer.
2. Interrogation? Probably.
III. "We had some fun. . . ."
A. Fruit of stop, frisk, or patdown? Attenuation?
1. Now S has told W of Miranda rights (though W has not waived rights).
2. More time has passed.
B. Fruit of Miranda violation?
1. Seems to be no waiver of Miranda rights.
If no waiver, S may not interrogate. Did he? Yes. S should know that "If you convince me" will lead to an incriminating statement.
2. W did not clearly invoke right to counsel.
3. Fruit of due process violation? Compare Roger G. and Tingle.
IV. "Yeah, I gave her. . . ."
A. Fruit of stop, frisk, etc. of W? A has no standing.
B. Fruit of stop of A?
1. Did S have reasonable suspicion to stop A? Clearly not.
2. Was relation between stop & statement too attenuated?
a. Time has passed.
b. Not in response to a question, so seems "volunteered."
c. But violation seems flagrant.