CRIMINAL PROCEDURE EXAM #2

Question #1

The Narcotics Hot Line in Dallas, Texas allows persons to call in with tips for the Dallas Police as to where and when to find illegal drug activity. One day, the police got a tip on the Hot Line that Apartment #101 at 333 Turrell Drive was being used for narcotics trafficking. The caller did not identify himself other than as a “concerned neighbor.” The caller told the police that he sees people going in and out of the apartment all day and night, that about four or five black men in their 30s seem to live or stay there most of the time, and that “drugs are definitely changing hands.” A team of four undercover officers set up surveillance of the apartment and quickly determined that the apartment with all of the activity was actually Apartment #102, right next to #101. The police note that Apartment #101 is abandoned and #101 and #102 share the same entryway.

Over a four-day period, the officers observed over thirty people come and go out of the apartment at all hours of the day and night. By using a high-powered telescope, one of the officers was able to see into the window of the apartment from the street. His view was partially obstructed by a doorframe, so he was unable to see the activity clearly. However, he did observe several black men in their 20s and 30s inside the apartment at most times. He also sometimes observed small objects being handed between people, but he could not make out their shape or color, and he occasionally observed money being handed between people.

On the fifth day, two of the officers knocked on the door. A voice from within said, “Who is it?” and one of the officers responded, “Police, open up.” The voice said, “Just a minute!” After 30 seconds, the officers thought they heard some scuffling inside and became concerned about what was happening in the apartment. So, they broke in the door and entered the apartment. Once inside the apartment, the officers yelled, “Freeze!” and both pointed their weapons at the two occupants of the house who were in the front room. One officer, Officer Hinkel, held those two at gunpoint while the second officer, Officer Fritz, continued through the house. Officer Hinkel saw a gun on the table and seized it. He asked the two men, both black and in their 20s, “Who’s gun is this?” One of the men, Freddie, said, “That’s my gun; he did not have anything to do with it,” gesturing at the second man, Irvin.

Meanwhile, Officer Fritz entered the bedroom upstairs. He looked under the mattress and found large quantities of packaged heroin. He then heard noise coming from the bathroom. He went into the bathroom and grabbed a man trying to leave out of the window. This man was named Reggie, who was also black and in his 20s. He patted Reggie down and felt a round small cylinder-shaped item. Officer Fritz had made a few arrests in the past where drugs were stashed in film canisters, so he thought that may be what this was. He reached into Reggie’s pocket and pulled out a film cannister. Officer Fritz opened it and found pills inside, which later turned out to be dilaudid, an illegal drug. Reggie, Freddie and Irvin were placed in handcuffs and taken to the police station.

Once at the station, while Officer Hinkel and Officer Fritz were transporting Irvin to a holding cell, Irvin appeared very quiet and nervous. Officer Hinkel said, “Kids today, why are they so stubborn? Why do they have to get all wrapped up in drugs? I just don’t understand it.” Irvin then said, “For the money.”

The two officers next went into Freddie’s cell. Officer Hinkel told him that Irvin has given him up, that they have several witnesses who can testify that they witnessed drug transactions by Freddie, and that the officers themselves saw him selling dope. Of course, none of this was true. Hinkel told him, “It is all over, pal, you might as well come clean and tell us about it. If you do, we can probably cut you a deal with the district attorney’s office.” Hinkel then read him the Miranda rights. Freddie signed a waiver card saying he understood his rights and was willing to speak with the police without a lawyer present. Freddie then said, “I got involved with all of this because of Reggie. He is the mastermind.” Then Freddie said, “I should probably talk to a lawyer, don’t you think?” Hinkel responded, “No, I don’t think, but it is not what I think that matters. So what do you say?” Freddie shrugged and said, “Well, I guess no one can help me now. After all, I am caught red-handed since you saw me with those drugs I dealt.”

Finally, the two officers went to Reggie, read him the Miranda rights, and asked him if he wanted to talk. Reggie said, “Piss off!” The officers came back 15 minutes later and asked him if he was ready to talk, and he said, “Piss off!” After that, Reggie sat in the holding cell for about 20 minutes when another man appeared in the cell with him. The man told Reggie his name was Paulo. Paulo told Reggie that he was just arrested for drug dealing and that it was a bum rap. Paulo then asked Reggie, “What is your story?” Reggie responded, “Man, I am screwed. I got caught with all of these drugs. I should have been smarter than that.” Of course, the man in the cell was an undercover police officer. Officers Fritz and Hinkel had asked him to sit in the cell to “see if the jerk says anything.”

NOW, Irvin, Freddie and Reggie are on trial for possession of heroin with intent to distribute, and Reggie is additionally charged with possession of dilaudid. The prosecution will show that the apartment was leased to Reggie’s mother, that Reggie lived there, and that Freddie stayed overnight on occasion, and that, while Irvin never stayed overnight, he helped to deal drugs at the apartment during the day. The government plans to introduce the heroin against all three men, the gun against Freddie, the dilaudid against Reggie, and each of the defendant’s statements against the defendant who made the statement. What are the defense attorneys’ (assume each man has his own attorney) arguments for
suppression? What is the prosecution’s response?
Discuss.

View Answer

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.

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