Criminal Procedure, Professor Moskovitz,
Spring 2003 Final Exam
A. Fruit of illegal stop?
1. Was stop a “poisonous tree”?
a.. Was D seized? Yes.
b. Unreasonable? Yes, as C lacked “reasonable suspicion.”
i. Newspaper article is not a reliable source, and no evidence how long ago alleged drug use at club occurred.
ii. No evidence that these particular people used drugs.
2. Was statement a “fruit”?
a. Actual (“but for”) cause? Yes.
b. Attenuation? No. Compare Brown v.
i. 4th Amendment violation seems flagrant, as C wasn’t close to reasonable suspicion.
ii. Time between stop & statement was short.
iii. No advice of Miranda rights.
iv. C exploited fruits of stop by showing cocaine to D.
v. Statement does not seem unforeseeable.
B. Fruit of illegal search of woman’s purse? No. D has no standing, as he had no justifiable expectation of privacy in her purse. Compare Rawlings.
[C. Fruit of illegal seizure of vial? Facts do not say C seized vial, but
1. D has standing, as it was his.
2. But seizure was legal, as C had probable cause.]
D. Fruit of Miranda violation? Were warnings required?
1. Custody or deprivation of freedom in a significant way? No. Compare Berkemer & Carter.
a. Short time of detention.
b. No privacy, as on street.
2. Interrogation? Compare Ferro.
II. “That’s because most of us were high on cocaine.”
A. Fruit of illegal stop? Apply same attenuation factors listed above. Close issue.
1. 4th Amendment violation still flagrant.
2. Time between stop & statement now a bit longer.
3. Now D has been advised of Miranda rights.
4. Statement seems less foreseeable.
B. If earlier Miranda violation, is this statement excludable as fruit? No. Elstad.
C. Fruit of illegal arrest? No. C had probable cause to arrest D.
D. Fruit of new Miranda violation?
1. Did D waive rights? He did not say he understood them, but might this be implied from his “Maybe I shouldn’t say anything”?
2. If D waived, did he then assert right to silence? Probably not, as “maybe” is not a clear, unequivocal assertion.
Compare
3. If D either did not waive or
asserted right to silence, then C may not “interrogate.” Did he? Compare