CRIMINAL PROCEDURE - Professor Moskovitz
MIDTERM EXAM - Wednesday, October 15, 1997
You have ONE HOUR to complete this exam
To: My Law Clerk
From: Judge Natalie Drest
Harli Davidson (D) has been charged with possession of cocaine and possession of a gun by an ex-felon. His lawyer filed a motion to suppress some cocaine and a pistol. At the hearing on the motion, S.F. Police Officer Connie Copp (C) testified as follows:
Q: How did you happen to arrest Mr. Davidson?
A: At 9 p.m. on a Friday night, I was in my patrol car driving down Mission Street. I saw the owner of a local restaurant where I’ve eaten lunch several times, and I pulled over to say hello to her. She told me that she had seen a man walking around a row of motorcycles parked near the corner. I knew that there had been a number of motorcycle thefts from that area, so I went to the corner. There I saw Davidson, walking down the row and looking at the motorcycles. He stopped at one and put a key in the ignition and turned it. It didn’t start. He then went to another one, sat on its seat, and put the key in the ignition. I went up to him and said, "Excuse me. Could I see your driver’s license, please?" He took out his license and showed it to me. It said he was Harli Davidson. I gave it back to him and he put it into his jacket pocket. He said, "A friend loaned me her bike. I parked it, went to a movie and came back. I forgot exactly what it looked like. I just found it. It’s this Kawasaki here." He turned the key and the engine started. He said. "Can I go now?" He then put his hands in his pants pockets. I said, "Take your hands out of your pockets." He did, and I saw a bulge in his right pants pocket." I felt the pocket, and I felt a hard object which might have been a gun. I put my hand in the pocket and pulled out a pipe. As I pulled it out, 3 small white objects fell out of the pipe bowl and onto the street. I picked them up. I knew from my training and experience that they were rock cocaine. I told him that he was under arrest for possession of cocaine.
Q: Then what did you do?
A. I handcuffed him and took him back to my patrol car and locked him in the back seat. I then returned to the Kawasaki. Right under the seat is a small storage area. I lifted the seat and saw a fanny pack, with a leather belt tied around it. I took off the belt and unzipped the fanny pack, and inside found a small pistol.
How should I rule on the motion?
CRIMINAL PROCEDURE - Professor Moskovitz
OUTLINE OF ISSUES ON MIDTERM EXAM - Wednesday, October 15, 1997
I. Cocaine
A. "Excuse me."
1. A seizure? Probably not. Compare Mendenhall (where C asked for D’s ID, and Court held no seizure.)
2. Did C have reasonable suspicion? Note that tip seems to be irrelevant, as C could see what D was doing before "Excuse me."
B. "Take your hands out."
1. If "Take your hands out" was not a seizure, was this? Seems to be well beyond "normal social intercourse in public".
2. Did C have reasonable suspicion? Note that cause might have declined by now, as D’s explanation seems plausible, as engine started when he turned key.
C. Pat-down
Did C have reasonable suspicion that D was armed & dangerous?
1. Nature of crime suspected.
2. Hands in pockets.
3. Bulge.
4. Time of night.
D. Reach into pocket OK if object felt like a weapon.
II. Pistol
A. Fruit of prior acts.
B. Fruit of arrest. P.C. to arrest? Note that "training & experience" seems to be conclusion, not facts.
C. Lifting seat.
1. A search? Clearly.
2. Reasonable?
a. SIVA? Not if arrest invalid because no p.c. Incident?
i. Under Chimel? Could D have lifted seat and reached under it before C could stop him?
ii. Under Belton?
Does Belton apply to motorcycles?
If so, is storage area more like glove compartment or trunk?
b. P.C. + E.C.?
i. P.C. to believe evidence in storage area?
ii. E.C.?
Needed? Not if motorcycle is like auto. Compare Chadwick.
Present?
D. Opening fanny pack.
1. A search?
2. Reasonable?
a. SIVA?
i. Under Chimel? Could D have reached inside fanny pack before C could stop him? Note that this would be more difficult than simply lifting seat, because pack wrapped in belt, and zipped up.
ii. Under Belton? Does Belton apply to motorcycles? Is storage area more like glove compartment or trunk?
b. P.C. + E.C.?
i. P.C. to believe evidence in fanny pack?
ii. E.C.?
Needed? Not if motorcycle is like auto. Compare Chadwick.
If like auto, then C can open all containers where C has p.c. Acevedo.
If not like an auto, were e.c. present?