Criminal Procedure I – Professor Moskovitz Final Exam – Spring, 2004

PART II: ESSAY QUESTION

OUTLINE OF ISSUES

I. 1^st Steroids (from B’s car)

A. Auto exception? Did N have p.c. to believe B had steroids in his car? No.

1. Informant (Count)

1. Reliable? Underworld, so presumed unreliable, but he did testify under oath.

2. Basis of knowledge good, as he administered steroids to B.

2. But no evidence when C administered drugs to B.

3. And no testimony that C saw or heard that B keeps drugs in his car.

B. No attenuation, as steroids discovered immediately after search began.

II. “OK, I use that stuff. . . .”

A. Fruit of illegal search of car? Yes. Attenuation argument stronger, but still weak, as little time had passed and it is foreseeable that D will say something about what N found.

B. Fruit of illegal arrest? Arrest legal, as N got probable cause from finding steroids in B’s car. (Note: Analyze legality of arrest independently, on assumption that searches that led to arrest were legal, not illegal.)

C. Fruit of failure to give Miranda warnings?

1. Custody? Yes, as B was arrested.

2. Interrogation?

a. Showing B steroids along with N’s comment might be interrogation. Compare Ferro.

b. But this preceded custody. Does that matter? Probably, as Miranda requires warnings only before “custodial interrogation.”

III. “My teammate J.T. was bringing me some more today. . . . .”

A. Fruit of illegal search of car? Attenuation argument a bit stronger, as more time has passed. Miranda warnings given, but that is not determinative. Compare Brown.

B. Fruit of prior Miranda violation? No Elstad.

C. Fruit of current Miranda violation?

1. Did B waive rights? Probably not. He did indicate that he understood right to counsel, but not other rights.

2. Did B invoke right to counsel? No, not clearly, as required by Davis.

3. Did N interrogate by saying “You seem to be the one who knows what happened”? Seems so.

IV. Steroids in J.T.’s Mustang?

A. Fruit of search of B’s car? Attenuation argument stronger. Compare Brown and Wong Sun.

B. Fruit of Miranda violation? Elstad suggests no, as no “poisonous tree.” (But SC might hold otherwise in Patane, now pending.)

C. Fruit of search of Mustang? B has no standing to challenge that.