MIDTERM EXAM — Wednesday, March 26, 2003, 6:30 to 7:45 p.m.

OUTLINE OF ISSUES

I. Marijuana

A. Fruit of unreasonable search — checking D’s personnel file?

1. Might be a search, if police departments keep these files confidential.

2. Unreasonable?

a. At this point in investigation, C did not have p.c. to believe file contained evidence of crime.

b. Also, no exigent circumstances excusing failure to get search warrant.

B. Fruit of unreasonable search — putting hand on hood of car?

1. A “search”? Did D have “justifiable expectation of privacy” in hood of car?

a. Touching to obtain information may be a search. Minnesota v. Dickerson.

b. U.S. v. Kyllo (in Supp., re thermal imagers) says use of special device to measure heat from homes is search.

c. But on the other hand,

i. Heat from engine reveals that the car has been running on public roads, which is not private information (compare U.S. v. Knotts, p. 112).

ii. Perhaps anyone walking by might detect heat from engine without touching hood.

2. If a “search”, it might be justified by “auto exception” — if C had “probable cause” to believe engine was evidence of crime. See below.

C. Fruit of unreasonable arrest? Depends on whether C had probable cause to believe D committed assault. (No e.c. needed, as no forcible entry into home.)

1. Tip:

a. Informant presumed reliable, as ordinary witness

b. Basis of knowledge

i. Good, from seeing info himself.

ii. But he was a bit drunk, so perception & memory might not be very good.

iii. Car drove off “fast”, limiting informant’s ability to see license number.

2. Cop’s observations

a. Light on at 3 a.m. C could infer that someone is still awake, maybe just got home.

b. Hood of car was very warm, so C could infer that car had just been driven.

c. Can’t use alcohol on breath or bandage on knuckles, as C detected these after arrest.

3. Add ‘em up. Enough?

a. Able or Baker might have been the assaulters.

b. Maybe compare a case, like Illinois v. Gates.

c. Conclusion: A close case, so either conclusion is reasonable.

D. Fruit of search of D’s pockets? Clearly a valid search incident to valid arrest, if p.c. for arrest.

II. Steak Fajita

A. Fruit of any unreasonable act discussed above?

B. Fruit of unreasonable entry into car?

1. A search? Yes, as one has justifiable expectation of privacy vis-à-vis entry into one’s car.

2. Unreasonable? Examine possible exceptions to “search warrant requirement”:

a. Consent?

i. Did D’s “OK” communicate consent, or mere acquiescence? Compare Bumper v. N.C..

ii. Did “quick look around” encompass entry into car? Seems too vague to encompass car.

b. Search incident to valid arrest?

i. Under Chimel?

A. Was front seat within reach of D when arrested? He was near hood, but perhaps might have lunged into car.

B. May C go back to search place of arrest after removing D? Compare Turner (yes) with Stackhouse (no).

ii. Under Belton? Was D a “recent occupant” of car?

A. Engine still warm.

B. Crime occurred an hour ago, and D drove home since then. So he was probably in car no more than half an hour ago.

c. Auto exception?

i. Did C have probable cause to believe evidence of assault might be in car?

A. Note that now C may consider D’s breath and bandage.

B. What evidence might be in car? Liquor bottle, perhaps.

ii. Did C have probable cause to believe evidence of drug crime might be in car? Not likely.