Criminal Procedure — Professor Moskovitz — Spring, 2000

PART II: ESSAY QUESTION

Recommended time for this Part: 60 to 75 minutes

To: My law clerk

From: Judge Weldon Stake

Byron Berkovitz (B) has been charged with sale of cocaine. He filed a motion to suppress evidence. At the hearing on the motion, Police Officer Copp (C) testified as follows:

Q: Officer Copp, how did you happen to encounter the defendant?

A: I was driving my patrol car around 1^st and Mission Streets at 9:15 on a Monday evening. A lot of shady characters were walking out of a nearby law school. I saw this shifty-eyed guy looking at people coming out and talking briefly to some of them. I thought he might be trying to sell drugs. I pulled over to the curb and said to him, "Come here, you. I want to talk to you." It was raining, so I opened the door and he got in. I said, "I received a report that you’ve been selling drugs to law students." This wasn’t true, but I wanted to get his reaction. He got very upset and said, "Roger Hartburn made me do it. We keep the drugs in his car, right over there. When someone wants to buy, we go get them from the car. Hartburn drove us over here, and he ran off when he saw you." He pointed to a red Toyota parked by the curb.

Q: What did you do then?

A: I went over to the Toyota. It wasn’t locked, so I went in. On the front seat was a plastic bag full of white powder. From my training, I knew it was cocaine, so I took it. I then placed Berkovitz under arrest and told him his Miranda rights*. He said, "I might really need a lawyer." As I was handcuffing him, I said, "You were right. The drugs were in the car." He said, "Of course they were. I wouldn’t lie to you. I’m an honest man."

Berkovitz moves to suppress his first statement ("Roger Hartburn made me . . . "), the cocaine, and his second statement ("Of course they were. . . "). Should I grant any part of the motion?

* Assume that these warnings were correctly stated.