CRIMINAL PROCEDURE EXAM #1
On the morning of May 8, 1999, the Wyoming Highway Patrol received a call regarding a possible drunk driver on Interstate 90. The caller stated that a red Mercury with a dealer license plate driving eastbound on I-90, at around milepost 99, was driving recklessly, swerving in and out of both lanes of traffic, speeding up to pass motorists and then slowing down in front of them. The caller left no additional information. A dispatcher relayed the information to Officer Starr, an experienced patrol officer in the area.
Officer Starr positioned his cruiser east of milepost 99 and waited. After five to eight cars had passed, a red Mercury with three occupants then drove by heading eastbound on I-90. None of the other cars that the officer saw was a red Mercury. The red Mercury was within his estimated time of arrival. When the vehicle passed Officer Starr, he observed that all three occupants, Bill (the driver), Monica (the front seat passenger), and Hillary (the back seat passenger) turned their heads toward his direction. The vehicle exited I-90 at the nearby exchange and headed north on Skyline Drive. Officer Starr followed the vehicle without activating his emergency lights. The officer, still without his lights on, observed the vehicle and its occupants. The car did not swerve, was not driven erratically, and made no traffic infractions. However, the two passengers, Monica and Hillary, continuously moved their heads about and looked in the officer’s direction. Also, Bill, the driver, frequently looked at his side mirror and rearview mirror in the direction of the officer.
The vehicle stopped for a red light, then turned left into a convenience store parking lot. As the red Mercury pulled into a parking space at the doors of the convenience store, Officer Starr activated his emergency lights and pulled in directly behind the vehicle and stopped. He then turned off his emergency lights, leaving just his flashing amber lights on. Bill, the driver of the red Mercury, got out of the car and headed toward the front doors of the convenience store. Officer Starr quickly stepped in front of the convenience store doors. The officer immediately noticed a green leafy material on Bill’s shirt and noticed a strong odor of marijuana.
After asking Bill for his driver’s license, registration and proof of insurance, which Bill retrieved from his wallet, Officer Starr asked Bill if he had been smoking marijuana. Bill admitted that he had been smoking marijuana. The officer then asked both passengers to step out of the car and searched the car. Under the front passenger seat, which had been occupied by Monica, the officer found a backpack. The officer opened the backpack and found papers in it with the rear passenger’s name (Hillary). The officer also found that the backpack contained a clear plastic bag of green leafy material that smelled like marijuana. Later tests confirmed that it was marijuana. A search of the trunk also revealed a backpack. The officer opened the backpack and found papers with both the driver’s (Bill’s) and front passenger’s name (Monica’s) and a clear plastic bag of green leafy material that smelled like marijuana. Later tests confirmed that it too was marijuana. All three were then handcuffed,placed in the back of the patrol car, and transported to the police station.
As it turned out, the back seat passenger, Hillary, had a warrant out for her arrest for an armed robbery of “Slick Willy’s,” a local tavern. The next morning all three, Bill, Monica and Hillary, were taken to court and charged with possessing the drugs found in the car. Each was appointed a lawyer.
After court, the police officers who were transporting Hillary to the jail stopped first at the police station, where she was placed in a lineup. Two witnesses to the tavern robbery, Linda and Betty, identified Hillary as the perpetrator. Both said they were “absolutely positive” about their identification. Linda and Betty had told the police that the bar was very dimly lit and that they had ingested a significant amount of alcohol when the robber entered the bar. They reported that the robber wore a baseball cap that was pulled down, but that the robbery lasted about ten minutes and the robber was in view the entire time. On the basis of these identifications, Hillary was indicted for the tavern robbery. Without any notice to Hillary or to her attorney, two more witnesses, James and George, were brought down to the police station and were separately shown what was clearly a mug shot of Hillary from a prior arrest. Both witnesses identified Hillary as the robber.
As to all three defendants on the drug charges, and as to Hillary for the armed robbery charge, discuss all possible motions to suppress all potential evidence on all possible grounds. Assume Federal constitutional law applies.