CRIMINAL PROCEDURE I

Professor Moskovitz

Spring, 2004

MIDTERM EXAM – OUTLINE OF ISSUES

I. Marijuana

A. Fruit of invalid arrest? Probable cause to arrest?

1. Tip. Analyze both mother and daughter.

a. Mother

i. Reliable?

No involvement with underworld.

On other hand, refused to give name and C had no prior experience with her.

ii. Basis of knowledge? Heard info from daughter.

b. Daughter

i. Reliable? Not good. Underworld, no name, no prior experience with her, possible motive to lie.

ii. Basis of knowledge? Saw D sell MJ.

c. C’s corroboration.

i. Blanket varied from tip.

ii. No facts re how many other men on blankets were in the area.

2. C’s own observations.

a. D’s behavior (approaching woman, exchange of $$ for ?)

i. Consistent with selling drugs.

ii. On other hand, might have sold a food item, etc.

b. Woman smoking marijuana

i. Might have bought it from D.

ii. On other hand, might have brought it with her.

c. D talking to another man. Might have been another customer, but might have had innocent explanation.

3. Add ‘em up. Compare a case (Gates, Cunha)

B. Fruit of opening basket

1. A search?

a. In public area.

b. On other hand, basket was closed.

2. Unreasonable?

a. Search incident to valid arrest? Basket was probably not within D’s wingspan when arrested (20 feet away).

b. P.C. + e.c.?

i. P.C.? Looks good, if p.c. to believe he sold mj.

ii. E.C.?

Someone might take basket if C left to get warrant.

On other hand, C might have seized basket without opening it, and then obtained warrant.

II. Gun.

A. Fruit of invalid arrest? See above.

B. Fruit of invalid entry into car?

1. Search? Was sticking head in car is probably intrusion on justifiable expectation of privacy?

a. Car door was open, so much was visible without entering.

b. On other hand, C could see into more private areas with head in car.

2. Unreasonable?

a. Search incident to valid arrest?

i. Under Chimel? Probably not, as D too far from car when arrested (20 feet away).

ii. Under Belton? Yes, if D was “recent occupant”. Was he, based on going into car to change station?

He didn’t sit in car.

C had no contact with him while D in car.

b. Auto exception? Did C have probable cause to believe evidence in car?

i. C did not see D use car to transport or sell drugs.

ii. On other hand, C may infer that D used car to get to park with MJ, so m