Issue: The Sixth Amendmen Right to Self-Representation. The correct answer is (C). The defense counsel will not make this argument because McKaskle v. Wiggins (1984) held that no such right to “hybrid representation” exists as part of the right to self-representation. The defense counsel will argue (A) because Faretta v. California (1975) establishes the Sixth Amendment right to self-representation, and because McKaskle holds that this right requires that the defendant should be able to address the judge freely on issues where defense counsel would be free to speak. This freedom was impaired by the judge’s confinement of Zak to the table, where he could not hear the conversations of the prosecutor, trial judge, and standby counsel, and could not freely address the court during those conversations, without having to wait for Belle to carry notes to him about the content of those conversations. The defense also counsel will make arguments (B) and (D) because McKaskle holds that the right to self-representation includes the right of actual control of the defense and the right to maintain the jury’s perception of self-representation.

I. Entry into the Home

1. Standing

Alice, as the occupant of the home, has standing to contest entry to and search of the home. A threshold issue for Quentin in objecting to entry into the home was whether he even has standing to contest the entry into the house. If he does not, then he cannot move to suppress any of the items found in the home, with the exception of what is found on his person. The issue is whether he has a reasonable expectation of privacy in the home. It is not his home but he is an occasional overnight guest. The Court has held that an overnight guest has a reasonable expectation of privacy in the home. Minnesota v. Olson. The prosecution may respond that this reasonable expectation of privacy turns on whether Quentin is an overnight guest at the time of the search.

2. Consent

The officers do not have a warrant to search the home and so the prosecution must seek out an exception to the warrant requirement. The prosecution may argue that they had Quentin’s consent to enter the home. However, the defense will respond that the question, “We need to come inside, sir, okay?” was more of a command than a question. And, furthermore, Quentin’s response, “Whatever,” was ambiguous at best. Furthermore, the defense will argue that Quentin did not have actual authority to consent to the entry of the home since he was just a visitor to the home. The prosecution will respond that the fact that he stays overnight occasionally gives him actual authority to admit or reject guests (which is a stretch) and will also argue that Quentin does not need actual authority as long as he had apparent authority. Apparent authority allows a third party to consent to a search of the home if a reasonable officer in the position of Curly and Moe would believe Quentin had actual authority.

Illinois v. Rodriguez. The fact that he opened the door to the house may be enough, but the defense will argue it is not, and the police should have inquired further.

3. Exigency

If there is no lawful consent to enter the home by Quentin, then the prosecution would argue that there was an exigency. They had a report of gunfire and then had reason to believe that marijuana was being consumed in the home. The prosecution will argue that the report of gunshots gave them probable cause to believe someone in the house was in danger, and then the marijuana gave them probable cause to believe that, if they did not enter then, the drugs, including the marijuana plant, would be destroyed. The defense will respond that the officers did not have the right address and so, as a matter of fact, there was no probable cause to believe there was a danger within. Courts may differ in their response to this issue. While the good faith exception to the warrant clause only allows the exception when there is a warrant, it is possible that a court would in effect apply a good faith exception here. The officers were reasonably relying on a faulty radio report. See Arizona v. Evans. The exigency due to the gunshots may also have dissipated by the time the officers reached the front door. The police had already walked around the side door and waited at the front door for a few minutes and had heard no sign of a disturbance. It is unlikely that the smell of burning marijuana alone, and the existence of a plant which could be destroyed, could justify a warrantless entry. The Court has held that warrantless entry to arrest a drunken driver was not a sufficient exigency when the crime was not very serious. Welsh v. Wisconsin.

An additional problem with using the evidence of the marijuana plant to gain entry is that the police may have needed a warrant to view the marijuana plant through the window. When the officers went around the side of the house and looked into the window, the defense will argue that this was a “search,” in that they were violating a reasonable expectation of privacy of the occupant. Katz. However, the prosecutor will argue that, while the police did not have a warrant, they had an exigency, in that they had been given a call for the sound of gunshots, and for their safety, they walked around to the side of the house and looked in first.

If the entry to the home was not lawful, then all evidence seized as a fruit of that unlawful seizure would be suppressed.

II. Search of Quentin’s Person

1. Basis for Terry Frisk

Assuming the officers are lawfully in the home, is the search of Quentin’s person justified? This depends upon the level of suspicion the officers have toward Quentin. At the point that Moe pats down the outside clothing of Quentin, he has smelled the odor of burnt marijuana and noted Quentin looked high. In order to conduct a patdown incident to a Terry stop, the officer must have reasonable suspicion that the suspect is presently armed and dangerous. Potential marijuana possession alone would not give them this suspicion. The prosecution would have to rely on the fact that the officers were responding to a report of gunshots when frisking Quentin and would argue that, plus the hand over the front pocket, gave them a reasonable articulable suspicion he was carrying a gun. The problem here is that this was the wrong address for the report of gunfire. Nonetheless, courts will likely decide that the reasonable officer could rely on the faulty radio run and reasonably believe that the gunfire came from this house. Arizona v. Evans. Even so, the defense may argue that by this point the officers could see that there was no danger and had no information who in the house had fired a weapon.

2. Scope of Frisk

Assuming the officer had reasonable suspicion that Quentin was armed and dangerous, then the next question is whether he exceeded the scope of a lawful patdown by going into Quentin’s pants pocket. Normally, a Terry frisk must be just a pat down of the outer clothing for weapons. There is an exception, called the “plain feel” exception, which allows an officer to seize an item which he feels in the course of the pat down and which he has probable cause to believe is contraband. Minnesota v. Dickerson. Here, the defense will argue that a hard, square object with a hand over the pocket does not lead to probable cause that the package is contraband, but is merely an inarticulable hunch of something illegal.

III. Quentin’s First Statement at the House

1. Fifth Amendment – Miranda

Quentin makes a statement after the officer pulls out the marijuana and says “Well, lookee what we have here.” If Quentin’s statement was taken in violation of the Fifth Amendment it must be suppressed. Any statement made by a suspect in custody in response to interrogation without a valid waiver of Miranda rights, is taken in violation of the Fifth Amendment. Here, it does not appear that Quentin is in custody for Fifth Amendment purposes. Custody is more than a mere seizure where a person does not feel free to leave, but requires a show of authority on the part of an officer which makes it the equivalent of a Fourth Amendment arrest. It is arguable that once the officer finds the marijuana and holds it up, that the level of seizure has become custodial. In any case, the next question is whether the officer has interrogated Quentin. Interrogation is direct questioning or its functional equivalent – conduct by an officer reasonably likely to elicit an incriminating response. Rhode Island v. Innis. The officer makes a statement about what he found, holding up the marijuana. Courts have found that confronting a suspect with physical evidence is the functional equivalent of interrogation. However, the prosecution will argue that in those cases, the evidence was brought in and set down before the suspect, as opposed to the officer merely commenting on what he found as he was finding it.

IV. Marijuana on the Dresser

1. Protective Sweep

At the point the police searched the bedroom, the prosecution will argue that Quentin was effectively under arrest at this point and the officers are allowed to do a protective sweep of the home if they have a reasonable articulable suspicion that dangerous confederates are in the home. Maryland v. Buie. While conducting the protective sweep, the officers may search for weapons which may be used against them. The prosecution will argue that the officers, responding to the sound of gunshots fired, had reasonable articulable suspicion that others were in the home. Hence, the officers had a right to look in the bedroom for people and once there, could seize evidence seen in plain view on top of the dresser. Horton v. California. The defense will respond there was no reason to believe that other dangerous persons were in the home. All appeared calm.

2. Exigency

If the search incident to arrest was not lawful, the officers could only search within the scope of the exigency. At this point, the defense will argue, any exigency had dissipated – they had investigated the call and found that all was fine. There was no exigency to search for the gun at that point. The prosecution will respond that the officers had not checked out the house to be sure that the reported sound of gunshots have not come from somewhere else in the house, where an armed person was still hiding. If the court agreed, then the officers would be allowed to look in the bedrooms.

V. Marijuana in Dresser Drawer

1. Protective Sweep

The prosecution will argue that Quentin was effectively under arrest at this point and the officers are allowed to do a protective sweep of the home if they have a reasonable articulable suspicion that dangerous confederates are in the home. Maryland v. Buie. While conducting the protective sweep, the officers may search for weapons which may be used against them. The prosecution will argue that the officers, responding to the sound of gunshots fired, had reasonable articulable suspicion that others were in the home. Hence, the officers had a right to look in the bedroom for people. The issue is that once the officer saw there were no people in the room, can he search in a drawer for weapons (and find the drugs in plain view)? It would seem that the search for weapons is only justified by the notion that persons could get at them, so it is arguable whether the officers were justified in looking in the drawer.

2. Exigency

If the search incident to arrest was not lawful, the officers could only search within the scope of the exigency. At this point, the defense will argue, any exigency had dissipated – they had investigated the call and found that all was fine. There was no exigency to search for the gun at that point, and so no reason to be opening drawers.

3. Standing (Quentin)

Another issue here is whether Quentin, even if he has standing to contest the search of the home, would have standing to contest the search of the dresser drawer. It appears that the drawer is one used solely by Alice, and therefore, if Quentin had no access to it, he would not have a reasonable expectation of privacy in the drawer.

VI. Marijuana Plant

1. Plain View

If the officers are lawfully in the house, they may seize any evidence they see in plain view. The officers first saw the marijuana plant from outside the window. Normally, they would need a warrant to seize the plant. Once inside on an exigency, can they enter a room of the house for which they may not have an exigency (the kitchen) in order to seize the evidence they had seen in plain view? One assumes the Court would not make the officers turn their back on the plant once inside the home, and that the additional steps into the kitchen to retrieve the plant is a de minimus intrusion.

VII. Quentin’s Statement in the Car

1. Fifth Amendment – Interrogation

Quentin makes a statement in the back of the police car. He is clearly in custody at this point as he is under arrest. If he is in custody and being interrogated, he must validly waive his Miranda rights or a Fifth Amendment violation will be assumed. Here, the question is whether he is being interrogated, or its functional equivalent, which is conduct which a police officer should know is reasonably likely to elicit an incriminating response. Rhode Island v. Innis. Here, the officer makes a statement to the other officer, much like the one in Innis, where the Court held that, absent an indication that the defendant has peculiar susceptibilities about the subject matter, such statements to one’s fellow officer do not amount to interrogation. Many courts have held that an appeal relating to one’s relatives or loved ones does not amount to a play on peculiar sensibilities, so the fact that the officer mentioned Alice being in trouble would not amount to interrogation.

VIII. Quentin’s Statement at the Stationhouse

1. Fifth Amendment – Invocation of Right to Counsel

After Quentin is read his Miranda rights, says he understands them and makes a statement about a lawyer, he makes an incriminating statement. The issue here is whether he unequivocally invoked his right to counsel. If he did, then the officers cannot question him unless he later initiates the questioning. Here, the prosecutor will argue that his use of the words “think” and “don’t you?” show an equivocal invocation. The defense will argue that this phrasing is merely a less formal, but unequivocal way of invoking counsel. If it is an invocation of counsel, then the officer would have violated the Fifth Amendment by urging him to speak. If it is not, then Quentin’s incriminating statement would not be suppressed.

IX. Quentin’s Statement in the Holding Cell

1. Fifth Amendment – Invocation of Right to Counsel

By the time of this statement, Quentin had unambiguously invoked his Fifth Amendment right to counsel by saying “Look man, I want a lawyer.” The fact that his lawyer had shown up and asked to see him is of no constitutional moment. Moran v. Burbine. Since he has not yet been charged, there is no Sixth Amendment right to counsel. And, the Fifth Amendment right to counsel must have been personally invoked by the defendant, which he has already done. Since Quentin has invoked his Fifth Amendment right to counsel, the officers cannot question him unless he initiates questioning and they re-Mirandize him. Here, Quentin is the one who shouts out to the officer, “How long til I see a lawyer?” This would seem to be an initiation, but only as to when he would see a lawyer, to which the officer responds. Quentin’s next incriminating statement would seem to be unsolicited. The only problem here is that the officer’s response seemed fraudulent in light of the fact that his lawyer was right there, and then Quentin’s statement seemed to be the product of the information that he was not seeing a lawyer any time soon. While there is no Supreme Court case directly on point, and while technically, the officer’s response appeared legal, some courts may find this deceit on the part of the police officer amounted to a due process violation.

X. Alice’s Statement in Jail

1. Fifth Amendment – Right to Silence

When Alice has been read her Miranda rights and says to leave her alone, was this an unequivocal invocation of her right to silence. The prosecution may argue that asking to be left alone is not quite the same. But, assuming she has invoked her right to silence, the police must scrupulously honor that right. Michigan v. Moseley. They must stop questioning for a period of time and re-Mirandize her at least before questioning her again. Here, they wait 40 minutes, and instead of reading her rights again, put the heroin down in front of her. Most courts have found that confronting a suspect with evidence of the crime amounts to the functional equivalent of interrogation – conduct reasonably likely to elicit an incriminating response. Rhode Island v. Innis. In addition, the police lie and say that Quentin said the drugs were hers. While lying does not usually make the resulting statement involuntary, here, the short passage of time, plus the confrontation with evidence and the lying do not seem to amount to a “scrupulous honoring” of her right to silence.

I. Use of the GPS Tracking Device

1. Reasonable Expectation of Privacy

The defense will argue that the use of the GPS violated Mae’s reasonable expectation of privacy and hence was a “search” under the Fourth Amendment. Katz. If the police have executed a search, then they either need a warrant or an exception to the warrant clause, neither of which they have. The prosecution will argue that the GPS tracking device did not violate a reasonable expectation of privacy and was not a search. The prosecution will compare the GPS device to the beeper used in U.S. v. Knotts, which the Court upheld as not a “search” because the beeper merely revealed the car’s location, which any member of the public could have observed, and which the police could have observed had they conducted visual surveillance. Also, the GPS system does not issue any information about the inside of a house, which was the reason the use of a beeper was ruled a “search” in U.S. v. Karo and the use of thermal imaging a “search” of a house in Kyllo v. U.S..

The defense will respond that while the GPS tracking system does not reveal the inside of a house, it does reveal the most intimate activities of a person’s day. The police would not have been able to tail her without her noticing or unlikely would have done so for ten days in a row without this technology, and they gained personal information about her, including her political affiliations and that she went to a family planning clinic. Also, whether a reasonable expectation of privacy was violated when technology is used turns in part on whether members of the public could access such technology. The GPS tracking system, with its level of detail and accuracy, is available to the police but is likely unavailable to the general public.

If the court rules that use of the GPS tracking device was a “search” then all fruits of that search must be suppressed. Since they found the cottage and the greenhouse this way, a search warrant could not have issued without it.

II. Use of the Helicopter Fly-Over

1. Reasonable Expectation of Privacy

The defense will argue that the helicopter flyover violated Mae’s reasonable expectation of privacy and hence was a “search” under the Fourth Amendment. Katz. If the police have executed a search, then they either need a warrant or an exception to the warrant clause, neither of which they have. The prosecution will point to Florida v. Riley, where the Court upheld a helicopter flyover of the curtilage of a home to look into a hole in a greenhouse. The defense will distinguish Riley, because there, the police flew at a legal height, one from which the public could have made the same observations. Here, the police flew at a very low, likely illegal, height. Furthermore, the fly-over in Riley was approved in part because it did not cause a disturbance, whereas here the helicopter raised dirt and damaged the cottage. If the cottage had no permanent dwellers, however, the court may be less impressed with the potential invasion of privacy.

If the defense wins this argument, then the evidence of the search would have to be suppressed and the search warrant could never have issued.

III. Entry into Cottage

1. Standing

The first issue for Mae will be whether she has standing to contest the entry into the cottage. In order to have standing to contest the entry and search of the cottage, she must have a reasonable expectation of privacy in the cottage as if it were her home. If she is an overnight guest to the cottage, then she will have standing. Minnesota v. Olson. But if she is merely a business visitor to the premises, she will not. Minnesota v. Carter. The police found fresh food and women’s clothing, so Mae will argue this was her second home where she stayed overnight.

2. Knock and Announce

If she does have standing, she will contest the entry into the cottage. While the police did knock and announce, as constitutionally required under the Fourth Amendment, Wilson v. Arkansas, they only waited ten seconds before entering. The police are required to wait some period of time reasonable enough to allow a person to answer the door and avoid the ram. The defense would argue that ten seconds does not even allow a person to register the sound of a knock.

In absence of the required response time, the police would need to have an exigency to allow them to forego the knock and announce and use a battering ram to enter. Here, the prosecution will argue that knock and announce would be futile since Mae saw them and could either arm herself or destroy evidence while they waited. The defense would respond that there had been no information that Mae was dangerous and they had no information as to what exactly they would find in the cottage so could not rely on a justification of destruction of evidence. Indeed, the bulk of the evidence they sought was in the greenhouse and could not be destroyed.

3. Hot Pursuit

The prosecution could also argue that they were in hot pursuit of a fleeing felon whom they had probable cause to arrest, which is an exception to the warrant requirement. Although they did not have an arrest warrant for Mae, the prosecution will argue that they had a rumor that Mae dealt drugs, Mae spent 37 minutes at the cottage previously and was now there again, and they were aware that the greenhouse outside the cottage had marijuana plants and that gave them probable cause to arrest her. The hot pursuit exception ensures that persons who could otherwise be arrested on the street do not immunize themselves from arrest by ducking in a house. The defense will respond that a person’s mere brief connection with a place who backyard has illegal plants, along with a rumor, cannot possibly amount to probable cause. They had no idea what Mae’s connection to the cottage was, only the fact that she spent 37 minutes there once and was there again.

If the defense wins this argument, then all fruits of the unlawful entry would be suppressed. Because they are not a fruit of this unlawful entry, the plants in the greenhouse would likely not be suppressed.

IV. Seizure and Search of Mae

1. Reasonable Articulable Suspicion for Stop and Frisk

When the officers enter the cottage, one of them opens a closet door, pats down Mae, and feels something lumpy. The pat down of Mae involves both a seizure and a search of her person. In order to temporarily detain a person and frisk them, the police need a reasonable articulable suspicion that criminal activity is afoot and that the person is presently armed and dangerous. While the prosecution will be able to argue that they had reasonable suspicion that she was dealing drugs, based on the rumor, her previous and current visit to the cottage and the plants in the greenhouse, they have no information at all that she is presently armed and dangerous.

2. Probable Cause for Search Incident to Arrest

In any case, in order to get to a strip search, the officers would at least need probable cause that Mae had committed a crime. The prosecution would argue that they had such probable cause based on her visits to the cottage and the number of marijuana plants in the greenhouse. The defense will respond that a person’s mere brief connection with a place who backyard has illegal plants, along with a rumor, cannot possibly amount to probable cause. They had no idea what Mae’s connection to the cottage was, only the fact that she spent 37 minutes there once and was there again.

3. Scope of Search

Even if the police did have probable cause to arrest Mae, the typical search incident to arrest is a thorough search of the person’s clothing, possessions, and grabbable area, not a strip search. The strip search would likely be judged on the reasonableness of it under the circumstances. Here, the female officer felt something lumpy in her pat down. A less intrusive means to engage in the search would be to have Mae unzip her pants a bit or lift her shirt a bit to reveal the source. A full strip search would seem far too intrusive to be justified under the circumstances. The defense would likely win an argument that it was unreasonable under the circumstances.

V. Marijuana in Back Bedroom

1. Search Warrant

With a valid search warrant, the police can search the entire house, anywhere where the drugs may be. Hence, the seizure of the marijuana will be legal.

2. Exigency

If the entry of the house was unlawful because of the failure to knock and announce, then the police will have to rely on the hot pursuit exigency. Then, they may search for the person but a person cannot be contained in a drawer and so the search of the drawer would be unlawful. In addition, while the police could conduct a protective sweep of the home after Mae’s arrest, if they have reasonable suspicion to believe armed confederates are present, Maryland v. Buie, they have no such belief here, and again, that search is for persons in places where persons could be.

VI. Marijuana in Locked Glove Compartment

1. Search Incident to Arrest

The defense will argue that the search of Mae’s car violated the Fourth Amendment. The car search was not covered by the search warrant. The prosecution may argue one of two exceptions to a search warrant. First, when the officer searched the car, Mae was under arrest. A car can be searched incident to arrest when the occupant has been arrested. The question here is whether such a search can be legitimately extended to a recent occupant of the car. A search incident to arrest is justified by the need for police to search for weapons which may be used against them during the course of the arrest or evidence that may be destroyed during the course of the arrest. New York v. Belton. The defense will argue that once she had left the car, gone in the house, and been arrested, the rationale justifying the search had disappeared. The prosecution will be able to cite to scores of cases where courts continue to uphold searches incident to arrest despite the fact that the arrestee had been removed from the location. Here, though, it was not a question of the police removing her from the car. She was no longer in or near the car when they arrested her. In any case, even if a search incident to arrest could be conducted, could the police pry open a locked glove compartment? Most courts will say yes, since the theory is that the driver of the car could use the key to get at the item in the glove compartment.

2. Automobile Exception

The prosecution will also argue that they had probable cause to believe evidence of a crime was in the car and could therefore search anywhere in the car, including containers, locked and unlocked, where the contraband might be. California v. Acevedo. The prosecution will argue that once they found marijuana on Mae, they had probable cause to believe there might be more in her car. The defense will argue that they only had probable cause to believe there was contraband on the property and the fact that she had drugs taped to her indicated it was unlikely she was carrying any more in any other fashion, but since that did not turn out to be the case and hindsight is twenty-twenty, the court will not likely agree.

I. State v. Barnaby Jones

1. Ineffective Assistance of Counsel (Conflict)

Barnaby Jones will first argue on appeal that his Sixth Amendment right to counsel was violated because his lawyer, Melvin Taylor, was representing him under a conflict of interests. There are two separate conflicts here. First, Melvin had previously represented Kate, the State’s key witness against Barnaby. Second, Melvin is the brother of Kate. The first brings up an issue of a successive multiparty conflict of interest, and the second is a personal conflict of interest. The first type of conflict is similar to the conflict presented in Mickens v. Taylor, where the Court presumed, but did not decide. that a successive conflict would be governed by the rules set down in Cuyler v. Sullivan. Consequently, some jurisdictions decide successive conflicts of interest under the Sullivan rule, and some decide it under the harsher standard of Strickland v. Washington. Personal conflicts of interest are usually decided under Strickland.

Addressing first the successive multiparty conflict under Sullivan, the test is whether there was an actual conflict of interest and whether the conflict adversely affected Melvin’s performance. It would appear there was an actual conflict as Melvin had previously represented his sister against Barnaby, who had allegedly punched her in the face. Now, he was representing Barnaby with his sister as the main State witness against him. The defense will argue that Melvin’s performance was adversely affected as a result of that conflict. While Melvin underperformed in several ways, there is one way in which it is clear his performance was adversely affected by the conflict. He did not cross-examine Kate. His reasons why he did not cross-examine the government’s main witness betrayed his conflict – he did not want to make her look bad. A lawyer not laboring under such a conflict would have clearly cross-examined Kate on her motive to lie and seriously damaged her credibility. The prosecution would try to argue that this was not an adverse affect since he made a logical strategic decision not to alienate the jury, but this is a weak argument.

If this is a jurisdiction that deals with successive multiparty conflicts under Strickland, then the defense has a larger hurdle. To prove ineffective assistance of counsel under Strickland, the defense must show that the attorney’s performance was deficient and that, but for the attorney’s poor performance, there was a substantial probability that the outcome of the trial would have been different. Strickland would also be the test used to discuss Melvin’s personal conflict as a relative of the main state witness.

In discussing whether an attorney’s performance was deficient, the court is to indulge in a strong presumption that the attorney was effective and must not use twenty-twenty hindsight. Usually, if an attorney makes a strategic decision, even though not the best decision, his actions will not be held to be deficient. Here, the prosecution will argue that both the choice not to move to suppress the statements and the choice not to cross-examine Kate were strategic decisions. Melvin knew moving to suppress the statements was futile and he thought that cross-examining Kate might alienate the jury. Barnaby will argue that both decisions fall far below an average performance – even if a judge is not sympathetic to a motion, it is simply ineffective not to move to suppress statements taken in violation of the Fifth Amendment which were the mainstay of the state’s case; and the decision to not cross-examine Kate because it would alienate the jury would be a decision never to cross-examine any witness.

As far as prejudice, the failure to file a motion to suppress Barnaby’s statements was crucial since the State likely did not have a case without the statements – they had a carpet fiber which could have come from anywhere and they had motive, but that was all. Barnaby’s statements sealed the case against him.

In addition, had the motion been filed, the defense will argue they would have won it. First, the defense will argue that Barnaby was in custody and was being interrogated when he made the incriminating statements and so the strictures of Miranda applied. The prosecution may respond that he was not in custody. Custody, for Fifth Amendment purposes, is similar to the level of detention of an arrest under the Fourth Amendment. Here, the prosecution will argue, this was a consensual encounter. The police, led by Officer Friendly who knew Barnaby and called him “Barn”, simply asked him to come down to the station to clear the matter up and Barnaby came voluntarily. They told him he was not under arrest. The defense will respond that three police officers showed up at two a.m. and banged on his door, scaring him. They were aware that he was “slow” and took advantage of the situation. They did not ask Barnaby to come but told him “it was best” to come, and then questioned him in a small room with no windows. This was custody.

Then, the defense will argue, it does not seem that Barnaby knowingly, intelligently and voluntarily waived his Miranda rights. Before he was even read the rights, Officer Friendly made the implied threat that if he did not talk to him he would not get back home. Hence, the defense will argue any subsequent waiver was involuntary because of the implied threat given to a man the officer knew was “slow.” The defense may even go so far as to say that any subsequent statement violated the due process clause, as the statement was not the product of his own free will. Then, he was read the rights and, when asked if he understood them, he responded, “Can I have a lawyer right now?” and was told he could not. With an IQ of 65, the police should have been careful to make sure he understood what he was giving up. He never explicitly waived his rights, but was simply told, “it seems you want to talk to me,” and Barnaby said “Okay.” The defense will argue that the waiver was not intelligent. The defense could also argue that “Can I have a lawyer right now?” amounted to an invocation of the right to counsel under the Fifth Amendment, but such an invocation must be unequivocal and this was clearly in the form of a question. If the defense won this argument, then the first statement, “I wanted to kill that S.O.B.” would have been inadmissible.

The prosecution will respond that the warning that Officer Friendly gave him before he read him his rights did not amount to a violation of due process. Implied threats of less than physical violence are usually not enough to amount to involuntariness. Even adding the fact that he was slow did not change the equation because there was simply not enough pressure to overcome Barnaby’s free will. Hence, such a statement also did not lead to an involuntary waiver of his rights. The prosecution will also argue that Officer Friendly simply responded truthfully to Barnaby’s question about a lawyer and then reminded him that he did not have to talk to him. If anything, the question shows Barnaby understood his rights and was merely asking a follow-up question. While the waiver was not explicit, by speaking to Officer Friendly after the clarification, Barnaby impliedly waived his rights.

Next, a motion to suppress would have argued that when Barnaby said “I am sad. Go away” it was an invocation of the right to silence, which then must be scrupulously honored by the police. Under Michigan v. Moseley, to scrupulously honor the invocation the officers should let some period of time pass and reread him his Miranda rights and get a new waiver before requestioning him. Here, an hour passed and Officer Friendly did not re-Mirandize him, but rather, lied to him about his lawyer coming and then told him he was not going anywhere. That does not appear to be scrupulously honoring his right to remain silent. Even if he had not invoked his right to silence, he invoked his right to counsel when he said Officer Friendly should call Melvin, that he wanted to talk to him. In that case, the officers could not talk to him again unless he re-initiated and was re-Mirandized. Edwards v. Arizona. He did not re-initiate a discussion about the crime when asking what was going on, but was simply inquiring into his status, why he was still being held. Oregon v. Bradshaw.

The prosecution will respond that this was not a winning issue either. First, the invocation of the right to silence was far from clear. Saying he was sad and wanted them to go away was not the same as invoking his right to silence. The officers honored his request that they leave him alone for awhile to be sad. Second, his request that they call Melvin was not an unequivocal right to counsel. The officers asked, “Your brother-in-law?” showing that they were unaware that he was calling him as a lawyer, as opposed to a relative. Then, in any case, Barnaby re-initiated when he asked what was going on.

The defense would also have argued that the officers overbore his will in violation of the due process clause when they lied about his lawyer having been called and then told him he was not going anywhere unless he told the “truth,” which the officer revealed to mean, that he killed Sal. That, plus the fact that the officers knew Melvin was slow, amounted to an overbearing of his will. The prosecution will respond tat lies plus intimations that he was not going anywhere do not mean that his will was overborne, as he seemed perfectly lucid and able to take care of his concerns.

In sum, the prosecution would argue that Melvin’s performance in not moving to suppress the statements was neither deficient nor prejudicial under Strickland. Melvin made a strategic decision that he would have made in any case – that the judge was never going to grant it because he never suppressed a statement taken by Officer Friendly and was not wrong that it was meritless in any case. The defense would respond that the motion did have merit and choosing not to make viable Fifth Amendment objections can never be a strategic decision. The defense will argue that if the statements had been suppressed, the state would not have had a case. And if Kate had been cross-examined, the jury would have seen her motive to lie and not credited her testimony. Hence, there was a strong probability that the outcome of the trial would have been different.

2. Ineffective Assistance of Counsel

Regardless of whether there was a conflict of interest leading to Melvin’s poor performance, the defense could simply argue straight ineffective assistance of counsel under either U.S. v. Cronic or Strickland v. Washington. The defense will first argue the Cronic standard for ineffectiveness because Cronic would allow the defense to bypass the prejudice prong of Strickland. Under Cronic,, in one of three situations, prejudice can be presumed. First, if there was a complete denial of counsel at a critical stage; second, if the defense completely failed to adversarily test the prosecution’s case; and third, if the circumstances were such that no counsel could be effective. The defense will argue that Melvin completely failed to test the prosecution’s case. He did not move to suppress the statements which were crucial and did not cross-examine the government’s main witness. The prosecution will respond that Melvin did cross-examine the police officer and put Barnaby on the stand to counter the government’s case. Typically, the Court has found that if the defense has done anything, they have not completely failed to test the government’s case. See Strickland v. Washington, Burger v. Kemp.

If the defense is unsuccessful under Cronic, it will argue ineffective assistance of counsel under Strickland. To prove ineffective assistance of counsel under Strickland, the defense must show that the attorney’s performance was deficient and that, but for the attorney’s poor performance, there was a substantial probability that the outcome of the trial would have been different. Strickland would also be the test used to discuss Melvin’s personal conflict as a relative of the main state witness.

In discussing whether an attorney’s performance was deficient, the court is to indulge in a strong presumption that the attorney was effective and must not use twenty-twenty hindsight. Usually, if an attorney makes a strategic decision, even though not the best decision, his actions will not be held to be deficient. Here, the prosecution will argue that both the choice not to move to suppress the statements and the choice not to cross-examine Kate were strategic decisions. Melvin knew moving to suppress the statements was futile and he thought that cross-examining Kate might alienate the jury. Barnaby will argue that both decisions fall far below an average performance – even if a judge is not sympathetic to a motion, it is simply ineffective not to move to suppress statements taken in violation of the Fifth Amendment which were the mainstay of the state’s case; and the decision to not cross-examine Kate because it would alienate the jury would be a decision never to cross-examine any witness.

As far as prejudice, the failure to file a motion to suppress Barnaby’s statements was crucial since the State likely did not have a case without the statements – they had a carpet fiber which could have come from anywhere and they had motive, but that was all. Barnaby’s statements sealed the case against him.

In addition, had the motion been filed, the defense will argue they would have won it. First, the defense will argue that Barnaby was in custody and was being interrogated when he made the incriminating statements and so the strictures of Miranda applied. The prosecution may respond that he was not in custody. Custody, for Fifth Amendment purposes, is similar to the level of detention of an arrest under the Fourth Amendment. Here, the prosecution will argue, this was a consensual encounter. The police, led by Officer Friendly who knew Barnaby and called him “Barn”, simply asked him to come down to the station to clear the matter up and Barnaby came voluntarily. They told him he was not under arrest. The defense will respond that three police officers showed up at two a.m. and banged on his door, scaring him. They were aware that he was “slow” and took advantage of the situation. They did not ask Barnaby to come but told him “it was best” to come, and then questioned him in a small room with no windows. This was custody.

Then, the defense will argue, it does not seem that Barnaby knowingly, intelligently and voluntarily waived his Miranda rights. Before he was even read the rights, Officer Friendly made the implied threat that if he did not talk to him he would not get back home. Hence, the defense will argue any subsequent waiver was involuntary because of the implied threat given to a man the officer knew was “slow.” The defense may even go so far as to say that any subsequent statement violated the due process clause, as the statement was not the product of his own free will. Then, he was read the rights and, when asked if he understood them, he responded, “Can I have a lawyer right now?” and was told he could not. With an IQ of 65, the police should have been careful to make sure he understood what he was giving up. He never explicitly waived his rights, but was simply told, “it seems you want to talk to me,” and Barnaby said “Okay.” The defense will argue that the waiver was not intelligent. The defense could also argue that “Can I have a lawyer right now?” amounted to an invocation of the right to counsel under the Fifth Amendment, but such an invocation must be unequivocal and this was clearly in the form of a question. If the defense won this argument, then the first statement, “I wanted to kill that S.O.B.” would have been inadmissible.

The prosecution will respond that the warning that Officer Friendly gave him before he read him his rights did not amount to a violation of due process. Implied threats of less than physical violence are usually not enough to amount to involuntariness. Even adding the fact that he was slow did not change the equation because there was simply not enough pressure to overcome Barnaby’s free will. Hence, such a statement also did not lead to an involuntary waiver of his rights. The prosecution will also argue that Officer Friendly simply responded truthfully to Barnaby’s question about a lawyer and then reminded him that he did not have to talk to him. If anything, the question shows Barnaby understood his rights and was merely asking a follow-up question. While the waiver was not explicit, by speaking to Officer Friendly after the clarification, Barnaby impliedly waived his rights.

Next, a motion to suppress would have argued that when Barnaby said “I am sad. Go away” it was an invocation of the right to silence, which then must be scrupulously honored by the police. Under Michigan v. Moseley, to scrupulously honor the invocation the officers should let some period of time pass and reread him his Miranda rights and get a new waiver before requestioning him. Here, an hour passed and Officer Friendly did not re-Mirandize him, but rather, lied to him about his lawyer coming and then told him he was not going anywhere. That does not appear to be scrupulously honoring his right to remain silent. Even if he had not invoked his right to silence, he invoked his right to counsel when he said Officer Friendly should call Melvin, that he wanted to talk to him. In that case, the officers could not talk to him again unless he re-initiated and was re-Mirandized. Edwards v. Arizona. He did not re-initiate a discussion about the crime when asking what was going on, but was simply inquiring into his status, why he was still being held. Oregon v. Bradshaw.

The prosecution will respond that this was not a winning issue either. First, the invocation of the right to silence was far from clear. Saying he was sad and wanted them to go away was not the same as invoking his right to silence. The officers honored his request that they leave him alone for awhile to be sad. Second, his request that they call Melvin was not an unequivocal right to counsel. The officers asked, “Your brother-in-law?” showing that they were unaware that he was calling him as a lawyer, as opposed to a relative. Then, in any case, Barnaby re-initiated when he asked what was going on.

The defense would also have argued that the officers overbore his will in violation of the due process clause when they lied about his lawyer having been called and then told him he was not going anywhere unless he told the “truth,” which the officer revealed to mean, that he killed Sal. That, plus the fact that the officers knew Melvin was slow, amounted to an overbearing of his will. The prosecution will respond tat lies plus intimations that he was not going anywhere do not mean that his will was overborne, as he seemed perfectly lucid and able to take care of his concerns.

In sum, the prosecution would argue that Melvin’s performance in not moving to suppress the statements was neither deficient nor prejudicial under Strickland. Melvin made a strategic decision that he would have made in any case – that the judge was never going to grant it because he never suppressed a statement taken by Officer Friendly and was not wrong that it was meritless in any case. The defense would respond that the motion did have merit and choosing not to make viable Fifth Amendment objections can never be a strategic decision. The defense will argue that if the statements had been suppressed, the state would not have had a case. And if Kate had been cross-examined, the jury would have seen her motive to lie and not credited her testimony. Hence, there was a strong probability that the outcome of the trial would have been different.

I. Entry of the Apartment

1. Standing

Reggie can only object to the entry of the apartment if he has standing. Under the Fourth Amendment, a person has standing when he or she has a reasonable expectation of privacy over the area searched. Since the apartment searched was leased to Reggie’s mother and he lived there, he has standing.

Freddie must have standing to contest the use of the gun and heroin against him at trial. Both items of evidence were seized as a result of entry into the apartment, so Freddie must show he has a reasonable expectation of privacy in the apartment. Freddie is an occasional overnight guest. An overnight guest does have a reasonable expectation of privacy. Minnesota v. Olson. However, his claim may depend upon whether he was actually an overnight guest at the time of the arrest. If he was just a visitor that day, then the fact that he was an occasional overnight guest may not give him standing.

In order to contest the introduction of the heroin against him, Irvin must have standing. Since the heroin was seized due to entry into the home, Irvin would have to show he has a reasonable expectation of privacy in the apartment. Irvin never stayed there overnight and only dealt drugs there during the day. It is likely that the court would not find the business connection enough to give him standing. See Minnesota v. Carter. Hence, he could not object to any of the items seized within the home.

2. Exigency

The police did not have a warrant when they entered Reggie’s apartment, so the prosecution would have to prove an exception to the warrant requirement. In this case, the exception which would be claimed by the prosecution would be exigency. In order to fulfill the exigency exception, the police must have had probable cause to believe that evidence of a crime existed within the home and that waiting to get a warrant would either cause the destruction of evidence, the escape of a suspect, or danger to the officers or others.

First, do the police have probable cause to enter the home, with or without a warrant? The initial focus on the home is due to an anonymous call by a “concerned neighbor” on the Hot Line. Anonymous tips are analyzed for their sufficiency under a totality of the circumstances test. Illinois v. Gates. In the totality, one can consider the anonymous tipster’s basis of knowledge and veracity. Aguilar/Spinelli. Here, the tipster indicated his knowledge was first-hand, and he describes in general terms the activity at the apartment and that four or five black men in their 30’s seem to stay there. While the detail is not particularly indicative of first-hand knowledge, when combined with the allegation of first-hand knowledge, the basis of knowledge prong can be argued to be relatively strong. As far as veracity, there is no information, although concerned neighbors, if this is indeed one, have less of a motive to lie. The amount of detail may not be enough to make the tip self-verifying (as in Draper), but under a totality of the circumstances, and once combined with police corroboration, the prosecution has a strong argument that probable cause was met. While the tipster gave the wrong apartment number, the Court has never seen one minor mistake as fatal. See, e.g., Gates.

The police corroboration here included days of people coming and going from the apartment plus exchanges of small objects and money, likely enough for probable cause for a warrant. One issue, however, would be that in order to corroborate the tip, the officers used a high-powered telescope to view inside the apartment. If this violated Reggie’s reasonable expectation of privacy and hence amounted to a “search”, then the officers would need either a warrant or a warrant exception in order to do this. Katz. Most courts would find that, as long as the officers were in a place where any member of the public could be ” here, in the street ” then any aid for enhancement of the senses, such as binoculars, a flashlight, and here, even a high-powered telescope, does not invade a reasonable expectation of privacy. The use of technology may turn on the availability of the technology to the public, but the court has often seen this as whether the public could purchase the item, no matter how rare or expensive. Here, there is little doubt that a member of the public could buy and use a high-powered telescope.

Since the officers needed to get a warrant at this point in order to enter the home, and they did not get one, the issue is was there an exigency which allowed them to enter? The prosecution will argue that once they knocked and announced their presence, they heard scuffling and no one came to the door for 30 seconds. They therefore had reason to believe that the occupants were trying to escape or destroy the evidence and could enter. The defense will respond that the police cannot create the exigency, however, and it was only upon their knocking on the door and announcing their presence that the exigency was created. The prosecution could respond that police should be allowed to knock on doors and try to gain a consent entry without having deemed to have created an exigency.

If the entry was unlawful, then all evidence seized as a fruit of that unlawful entry is suppressed.

I. Seizure of the Gun

1. Plain View

The gun itself was in plain view once the officers entered the house. An item in plain view which is clearly contraband may be seized by the police without violating a reasonable expectation of privacy. Horton v. California. The police, however, must lawfully be in the place from which they viewed the item. Here, the police must lawfully be in the apartment.

II. Statement About the Gun

1. Fifth Amendment ‘ Miranda

If a suspect is in custody and is being interrogated, typically any statement he makes is in violation of the Fifth Amendment unless the Miranda warnings were read and waived. Here, it would appear that Freddie is in custody. He is told to “freeze” and held at gunpoint. This show of authority by the police would seem to amount to an arrest. He is also asked a direct question, to which he gives his incriminating response.

There is a public safety exception to Miranda when the question is considered necessary to ensure immediate public safety. N.Y. v. Quarles. However, here, the question “Whose gun is this?” does not appear to be at all relevant to public safety.

III. Seizure of Heroin

1. Scope of Exigency Search

Assuming the officers were allowed to enter the house based on an exigency, then they were allowed to search the house for the drugs as well as to prevent the escape of any suspect. After one officer entered and held the first two men at gunpoint, they still had probable cause to believe confederates were in the house as well as drugs. While a search under the mattress could not be supported as a search for suspects, looking under the mattress is well within a scope of a search for drugs.

IV. Seizure of Reggie

1. Terry Stop

As far as Reggie is concerned, the next activity of moment was his seizure by the police as he was trying to exit the bathroom window. At the very least, this amounted to a Terry stop, which must be supported by a reasonable articulable suspicion that criminal activity was afoot.

First, the officer’s entry into the bathroom must be justified. Assuming the officers were allowed to enter the house based on an exigency, then they were allowed to search the house for the drugs as well as prevent the escape of any suspect. Hence, it would seem that Officer Fritz, who had just found heroin in the bedroom next door and then heard a noise in the bathroom, was justified in inspecting the noise.

Officer Fritz, having found heroin in the bedroom, would argue he had reasonable articulable suspicion that criminal activity was afoot and that the man in the next door bathroom trying to escape had something to do with it. He was therefore allowed to stop Reggie. Terry.

2. Arrest

The defense may argue that this stopping of Reggie amounted to more than a mere brief detention, that by bursting into the house with guns drawn, and physically grabbing Reggie (and ultimately reaching into his pocket), they had gone beyond the scope of a Terry stop and conducted an arrest which required probable cause. The prosecution will argue that the officers had probable cause when they entered the house to believe that the occupants in the house were dealing drugs, and in any case, certainly had probable cause to arrest the occupants after finding the heroin.

V. Search of Reggie’s Pockets

1. Basis and Scope of Frisk

If the stop of Reggie is deemed to be a Terry stop, then the officer may only conduct a pat-down of the outer clothing for weapons if he has reasonable suspicion that the person is armed and dangerous. The prosecution will argue that where there are drugs (especially in large quantities), there are guns. There is also a “plain feel” exception to the scope of the pat down, when an officer, in conducting that pat-down, has probable cause to believe that an item he encounters is contraband. Minnesota v. Dickerson. Here, while conducting a pat-down, the officer felt a round small cylinder-shaped item which he though might be drugs, based on a few arrests in the past. This may not be enough for probable cause, and in any case, he had to open the cannister to see the pills, which then had to be tested, before he knew they were drugs. The opening of the cannister and the testing of the drugs involve further searches, and would not be supported by the “plain feel” exception.

2. Search Incident to Arrest

This search of his pockets, however, and the seizure of the pills, would be justifiable if this was an arrest, as the officer may make a thorough search of the person for weapons and evidence of a crime, including opening containers. U.S. v. Robinson. The prosecution will argue that they had probable cause to arrest Reggie for possession of drugs at that point and could conduct a search incident to arrest.

VI. Irvin’s Statement at the Station

1. Interrogation Under Miranda

Irvin is clearly in custody at this point as he is being transported to a cell after arrest. The issue here is whether Officer Hinkel’s comments can be considered the functional equivalent of interrogation – should the officer have known that he was making statements reasonably likely to elicit a response? Rhode Island v. Innis. Officer Hinkel asks questions about why kids get wrapped up in drugs in the presence of a nervous Irvin. The prosecution will argue these were just rhetorical questions asked of the air and did not demand any sort of response, nor would an officer think them reasonably likely to elicit a response. The defense will argue that the officer knew exactly what he was doing by asking questions – who else but Irvin was supposed to answer them?

VII. Freddie First Statement at the Jail

1. Waiver of Miranda

Freddie makes two statements. The first is made right after he is read and waives his Miranda rights. The question here is whether Freddie has given a valid waiver. Is it knowing, intelligent and voluntary? The officers lie to him and tell him they have evidence of his drug dealing which they do not have. They also promise to cut him a deal with the prosecution’s office if he talks. Courts are divided on whether the use of lies and promises are enough to invalidate a waiver as involuntary, but, by and large, lies, promises and trickery are allowed as police tactics unless combined with some specific vulnerability of the accused, or unless the trickery comes after hours of questioning and deprivation, tending to show the confession was a product of only those tactics.

VII Freddie’s Second Statement at the Jail

1. Invocation of Right to Counsel Under Miranda

Freddie makes a second statement after he speaks of getting a lawyer. The issue here is whether Freddie has unequivocally invoked his right to an attorney by asking, “I should probably talk to a lawyer now, don’t you think?” Unfortunately for Freddie, most courts would see this as an inquiry, or, in any case, a tentative and equivocal invocation.

IX. Reggie’s Statement in Jail

1. Invocation of Right to Silence Under Miranda

The officers read Reggie his Miranda rights and he said “Piss Off!” The first issue is whether the statement “Piss Off” is an invocation of his right to silence. Courts will disagree as this statement is not entirely unequivocal as to an invocation. If it is considered an invocation of the right to counsel, one which he invokes twice, then the officers must scrupulously honor that invocation. Michigan v. Mosely. Typically, before the police may reinitiate questioning, there must have been a passage of time and a rereading and waiver of Miranda. Here, twenty minutes after his last invocation, the officers sent in an undercover officer. Of course, there was no reading of Miranda before the officer asked “What is your story?”

2. Element of Police Coercion

The use of an undercover officer does not implicate Miranda. The Fifth Amendment and Miranda are designed to protect against police coercion of confessions. When the suspect does not know that the person with whom he is speaking is a police officer, then Miranda is not implicated. Illinois v. Perkins.

I. The Stop of the Car and Bill

1. Standing

All three occupants have standing to contest a seizure of his person, which was caused by the stop of the car. Therefore, if the stop of the car was unlawful, each of them may be able to suppress the items seized as a fruit of that unlawful stop. Also, Bill has standing to contest the separate seizure of his person at the door of the store.

2. Level of Seizure

A threshold question for Fourth Amendment purposes is whether there was a “search” or “seizure.” If the car stop in this case did not amount to a seizure, then Officer Starr needs no justification for a consensual encounter. If the car stop was a seizure, then Officer Starr needs either reasonable articulable suspicion or probable cause, depending upon whether the seizure was a Terry stop or an arrest.

The defense will argue that the stop of the car was a seizure, such that a “reasonable person would not feel free to leave.” Mendenhall. The officer activated his emergency lights and pulled in directly behind the vehicle so that, presumably, the car could not get out. He left the flashing amber lights on further indicating a show of police authority. A reasonable person in the occupants’ position would not feel free to leave. In addition, traffic stops by the police are normally considered Terry stops. Berkemer v. McCarty.

The prosecution will respond that this was not a seizure, or the usual traffic stop, but a consensual encounter, one from which the three occupants were free to walk away. Bill had already driven into the parking spot and parked the car before Officer Starr pulled in behind him. Officer Starr’s actions did not cause the car to stop.

Bill has a separate argument that even if he was not seized at the time of the car stop, he certainly was by the time Officer Starr stepped in front of the convenience store doors. Now, Bill was free neither to walk away into the store nor to drive away, since his car was blocked.

Assuming that this is a seizure, then the question is what level of seizure – a Terry stop or an arrest. An arrest occurs with a strong showing of police authority, indicated by a display of weapons, number of police officers, tone of voice, or other signs of authority. The defense will argue that the pulling of the officer’s car behind Bill’s so that he could not leave went beyond the scope of a brief detention allowed under Terry, while the prosecution will respond that this was only one officer, with no display of weapons and no threatening tone of voice. If the defense persuaded the court that this was an arrest, then Officer Starr would have needed probable cause to believe a crime had occurred, which he did not have at this point.

3. Reasonable Articulable Suspicion

If this stop of the car (or, for Bill only, the stop of Bill at the store doors) is a Terry stop, then Officer Starr needed reasonable articulable suspicion to make the stop. It has to be more than a mere inarticulable hunch. What information did Officer Starr have? First there was an anonymous caller. When analyzing anonymous tips, even in the context of reasonable suspicion (as opposed to probable cause), it is helpful to consider the two prongs of the Aguilar/Spinelli test. While Aguilar/Spinelli focused on the level of information needed for probable cause, and while the Aguilar/Spinelli test was ultimately overruled by Illinois v. Gates, the Gates test is a totality of the circumstances test, and the two-pronged test is still helpful guidance in determining reasonable suspicion. Alabama v. White. The first prong is basis of knowledge: here, we do not know whether the caller’s knowledge is first-hand, although it could be argued that only someone who was watching could describe the car, its location, and its activity. The second prong is veracity: whether the caller is telling the truth. Since we know nothing about the veracity of the caller, we look to the level of detail in the tip – make and color of car, location, and manner of driving. All in all, not an overly detailed tip, but likely enough for reasonable suspicion if corroborated by the police. As to corroboration, however, while Officer Starr is able to confirm make and color of the car at approximately the right location, he is unable to corroborate any erratic driving. The only thing Officer Starr was able to note was that the three occupants were looking in his direction. That last fact alone could never support reasonable suspicion – it would not even seem to amount to a furtive gesture as innocent people look at the police. The question becomes whether the looking around combined with the tipster’s information that this car may have been driving erratically in the past amounts to reasonable suspicion to stop the car and its occupants. Suffice it to say reasonable people will disagree.

If Officer Starr did not have reasonable suspicion to stop the car, and Bill, then all evidence which is a fruit of the unlawful stop will be suppressed.

II. Bill’s Statement He Had Been Smoking Marijuana

1. Custody

Officer Starr next asks Bill whether he had been smoking marijuana. If a suspect is in custody and is being interrogated, then he must have knowingly and intelligently waived his Miranda rights in order for the statement to meet the commands of the Fifth Amendment. There is clearly interrogation since the officer asked a direct question. The issue here is whether Bill was in custody. While he may have been “seized” when asked the question, custody, for Fifth Amendment purposes, is equivalent to a Fourth Amendment arrest. It is unlikely there is enough of a show of police authority here to rise to the level of custody. An arrest occurs with a strong showing of police authority, indicated by a display of weapons, number of police officers, tone of voice, or other signs of authority. The defense will argue that the pulling of the officer’s car behind Bill’s so that he could not leave, and the stepping in front of Bill so he could not go in the store amounted to custody, while the prosecution will respond that this was only one officer, with no display of weapons and no threatening tone of voice. If it did amount to custody, then the statement would have to be suppressed as a violation of Miranda.

III. Search of the Car

1. Standing

A threshold question is whether the three occupants have standing to contest the seizure of the marijuana from the backpack in the front seat and from the backpack in the trunk. For Bill, the question of standing is whether Bill had a reasonable expectation of privacy in the item searched. As driver of the car, he typically will have standing to contest a search of the car. Rakas v. Illinois. The issue here is that the marijuana was found not just in the car, but in a backpack in the car. While the backpack in the trunk appeared to have items in it belonging to him, the prosecution will argue he had no reasonable expectation of privacy in the backpack in the car which only had papers indicating Hillary’s ownership. Rawlings v. Kentucky. If Bill does not have standing to contest either item, then he does not have standing to contest any Fourth Amendment violations by Officer Starr in seizing that item.

As the passenger of the car, Monica typically does not have standing to contest the search of the car. Rakas v. Illinois. However, a passenger will retain a reasonable expectation of privacy in the areas under his or her control. Hence, the defense will argue that Monica has standing to contest the search of the backpack that was under the front passenger seat where she was sitting as well as the backpack in the trunk, which contained papers with her name on it, evidencing her reasonable expectation of privacy in the contents. The prosecution will respond that, as to the backpack under the front seat, that was accessible only to the back seat passenger and in fact had papers in it indicating it was Hillary’s bag. As to the backpack in the trunk, the prosecution will argue that the bag was not under her physical control and mere ownership (indicated by presence of papers in the bag) does not determine standing, but the defense likely has the better argument here.

As the passenger of the car, Hillary typically does not have standing to contest the search of the car. Rakas v. Illinois. However, a passenger will retain a reasonable expectation of privacy in the areas under his or her control. Hence, the defense will argue that Hillary has standing to contest the search of the backpack located under the front seat of the car because it was within her control and contained evidence that it was actually her backpack – she had a reasonable expectation of privacy in its contents. It is unlikely she has standing to contest the seizure of the backpack in the trunk.

2. Automobile Exception

Officer Starr searched the passenger compartment of the car and opened a backpack from under the front seat, finding marijuana. He also went into the trunk and opened a backpack, containing more marijuana. Officer Starr can search the car and its contents if he has probable cause to believe it contains evidence of a crime. Before he searched the car, Officer Starr saw a green leafy substance on Bill’s shirt, noticed an odor of marijuana, and Bill told him he had been smoking marijuana. This likely gives Officer Starr probable cause to believe the car contains marijuana. While the defense can argue that he only has probable cause that marijuana was smoked, and not that there is more in the car, that is not likely to be persuasive. When an officer develops probable cause to believe the car contains contraband, he may search anywhere that the contraband could be, including containers and the trunk. California v. Acevedo. Since drugs may be almost anywhere in a car or a container, the search of the backpacks in the car and its trunk were justified.

IV. Line Up

1. Sixth Amendment Right to Counsel

At the time of the line-up, Hillary had not yet been formally charged with the drug offenses, and hence her Sixth Amendment right to counsel was not violated by the fact that she had no lawyer present.

2. Fifth Amendment Due Process

The line-up must comply with the requirements of the Fifth Amendment under Manson v. Braithwaite. The question under is whether the identification procedure was sufficiently reliable to outweigh any unnecessary suggestivity. There is no indication in the question that there was any undue suggestivity in the line-up, unless perhaps Linda and Betty viewed the line-up at the same time. If there was no undue suggestivity, then the question of reliability is not reached. If it is reached, the factors to consider under Manson are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation. Here, the defense will argue that despite the confidence in their identifications and the length of time they viewed the perpetrator, they had a poor opportunity to view the perpetrator as the bar was dimly lit, they were inebriated and the robber wore a cap pulled down low.

V. Mug Shot

1. Sixth Amendment Right to Counsel

Hillary has now been formally charged with the crime, so her Sixth Amendment right to counsel has attached. However, the Court has held that the showing of photographs to a witness is not a critical stage such that counsel must be present. United States v. Ash.

2. Fifth Amendment Due Process

The question is whether the identification procedure was unnecessarily suggestive so as to violate the Fifth Amendment. Hillary will argue that the showing of only one photograph, and a mug shot at that, is unnecessarily suggestive. It gives the witness only one choice. See Stovall v. Denno. The suggestivity was also not necessary at this point since Hillary was in custody and they had the ability to conduct a line-up and the time to create a full photo array.