CRIMINAL PROCEDURE I
Professor Moskovitz
MIDTERM EXAM
Wednesday, March 7, 5:00 to 6:15 p.m.
To: My law clerk
From: Judge Solomon King
Re: People v. Dink
Dan Dink (D) has been charged with sale of marijuana and possession of a gun by an ex-felon. His attorney moved to suppress a bag of marijuana and a gun found by Officer Copp (C).
On December 4, 2000, Officer Copp submitted the following affidavit in support of his application for a warrant to arrest Dan Dink:
On December 3, 2000, at 10 a.m., I received information from a confidential informant whom I knew to be trustworthy. He said that Dan Dink, a blond man about 25 years old wearing a San Francisco Giants baseball cap, was selling cocaine at the corner of First & Mission Streets in San Francisco. At 5:00 p.m, I went to that location and observed a blond young man in a San Francisco Giants baseball cap standing against a wall, holding a paper bag. During the next hour, I observed 4 separate occasions in which a different person would come up to the man and say a few words that I could not hear. The man would then take something out of the bag and give the thing to the other person, who would then give something to the man. I could not see what either person passed to the other. Based on my experience, I believed that the man was selling narcotics.
On December 4, 2000, a magistrate reviewed Copp’s affidavit and issued a warrant for Dink’s arrest. At the hearing on Dink’s motion to suppress, Copp testified as follows:
Q: How did you execute the arrest warrant?
A: On December 5, 2000, at 10 a.m., I went to First & Mission Streets and saw Dink get into a car parked at the curb halfway between Mission and Market Streets. Dink was not carrying anything when he entered the car. He exited the car carrying a paper bag. He went back to the wall he’d been standing at the day before. I went over to him and told him he was under arrest for selling cocaine.
Q: What did you do then?
A: I took the bag, handcuffed him, searched his pockets, and locked him in my patrol car. I then looked in the bag and saw some plastic baggies full of marijuana. I then went to Dink’s car and looked in the passenger compartment, finding nothing. I then looked in the trunk, where I found a loaded handgun.
Should I grant the motion, in whole or in part?
CRIMINAL PROCEDURE I
Professor Moskovitz
OUTLINE OF ISSUES ON MIDTERM EXAM
Wednesday, March 7, 5:00 to 6:15 p.m.
I. Marijuana
A. Fruit of arrest
1. P.C. to arrest?
a. Informant? Compare Draper.
i. Reliable?
ii. Basis of knowledge? Some corroboration, but facts reported not very intimate, and note time gap.
b. C’s own observations? Compare Cunha.
i. Note time gap. Might not have been same man informant mentioned.
ii. D’s acts are ambiguous. Innocent explanations?
c. Totality? Compare Gates.
2. If no p.c., would reasonably well-trained police officer (Leon) believe magistrate was reasonable?
B. Fruit of search of bag.
If arrest valid, search is clearly incident, as within D’s reach at time of arrest. Chimel.
II. Gun
A. Fruit of prior illegal acts?
B. Search of passenger compartment? Did not lead to gun.
C. Search of trunk
1. SIVA?
a. Based on Chimel? No, as not within D’s reach at time of arrest.
b. Based on Belton. No, as Belton does not allow search of trunk.
2. Auto exception? Depends on whether C had p.c. to believe evidence in trunk.