This is a twenty-seven hour take home exam. It must be returned to the Receptionist in the Administrative Suite within 27 hours after you pick it up. The rules governing this exam are contained on the attached cover sheet and must be followed carefully.
There are two questions. Most of the points will be awarded for your answers to question one. In answering the questions, remember that I DO NOT want and will not give credit for a general discussion of the law. Rather, your exam should reflect a discussion of the relevant law and policy in the context of the given facts. Restrict yourself, as much as possible, to the facts given. If additional facts are needed, state what they are and why, but do not change the facts.
You may type or write your answer. If you type, please double space. If you write, please write legibly and on only one side of each page.
Police in Mokans City received the following anonymous phone tip: "Dan Dela, who lives on the East Side, will be receiving a large quantity of illegal drugs. Several people who work with him will help him cut and package the drugs and he will then distribute them to his network of salespeople who will sell them on the street. Heís a big dealer and if you keep an eye on him, youíll make a big catch" Police had not previously heard of Dela nor did their computer check of him reveal any information regarding a prior history of drug offenses. Their check merely showed that a person named Daniel Dela lived just east of the river (although not in an area generally considered by most to be the "East Side") and owned a late model Mercedes.
Officers decided to engage in surveillance of the residence owned by Dan. They arranged to drive by the premises every hour or so to determine whether anything suspicious was going on. On the first day of surveillance, they saw the Mercedes parked in the driveway late in the afternoon but otherwise saw no activity at the house. Late in the afternoon on the second day of surveillance, officers drove by the house and observed not only the Mercedes in the driveway but several other late model vehicles either in the driveway or parked on the street outside Danís house. The officers recorded the license numbers of the vehicles and left. Their subsequent check on these vehicles revealed one individual with a conviction for misdemeanor possession of marijuana and one individual convicted of receipt of stolen property.
They continued their surveillance of Danís premises later that evening and the next morning by continuing to drive by every hour or so. When they drove by the first time in the morning, Officer Oliva, who had been involved each day in the surveillance, noticed that there were several large bags of trash on the side of the house that had not been there the previous day. The trash was inside a 5í chain link fence that surrounded Danís house and was back about 40í from the sidewalk. Oliva decided that it would help the investigation to be able to look through the trash, but he didnít want to tip Dan off to his suspicions. There were about six large, black opaque bags and Oliva believed he could remove one and move the others in a way that it would not appear anything was missing.
Oliva wanted to make sure Dan was not at home (he didnít want to be seen taking the bag) so he called the dispatcher and got Danís home phone number, which was given as 555-5431. He called the number and got an answering machine that said, "This is Dan. Canít take your call now. Leave a message." This, coupled with the absence of the Mercedes from the driveway, convinced Oliva that Dan was not home and that it was safe to take the trash. Oliva walked along the grassy area on the side of the house (this property belonged to Dan, since his fence was set back about three feet from the edge of his property line) and stood about a foot from the fence, which had a locked gate (see diagram).
Diagram not available electronically
He reached over the fence, took one of the trash bags, rearranged the others and returned to his car. He then took the bag of trash to the station. Once back at the station, Dan and several other officers went through the bag of trash. Inside, in addition to many personal items, they found several empty boxes that had held 100 glassine envelopes each, rubber gloves, talc and other materials believed to be used in the cutting and packaging of drugs.
Oliva decided to continue the investigation and the next morning he and his partner drove by the house again. This time, the Mercedes was there as were two other cars. The officers decided to set up fixed surveillance, and during the course of the next hour they observed the two cars leave and several other cars arrive. Each time a car arrived, a man (or a man and a woman) would enter the house, stay for a short while, return to their cars and drive away. The officers ran the license plates of each car that arrived, and initially, none of the vehicles was registered to a person with any prior drug record. Eventually, a white Lexus pulled up with a man driving and a woman in the passenger seat. When Oliva ran the plate of the Lexus, it came back registered to Steve Sella, who had three prior drug arrests and one previous conviction for possession of drugs with intent to sell. Oliva decided to follow the vehicle when it left Danís house.
Oliva followed the vehicle for several blocks, hoping to observe a traffic violation that would justify pulling the car over. When he did not observe a violation, he decided to pull over the Lexus anyway. He turned on his lights and motioned for the driver to pull over. The driver did so immediately. As Oliva got ready to approach the vehicle, he radioed for backup and was told a unit was in the vicinity and would respond quickly.
Oliva approached the car and asked the driver for license and registration. The license he produced confirmed that he was Steve Sella. Oliva asked him to exit the vehicle and come with him to the police car. He told the woman passenger (Tina Tivoli) to stay in the Lexus. He expected the backup momentarily and planned to have the backup officer deal with the woman. When they reached the police car, he asked Steve, "Youíre not carrying any drugs tonight, are you Steve? Steve immediately and emphatically responded, "No. I donít do that." Oliva responded, "Well, Iíd like to see for myself," to which Steve responded, "Whatever you say." With that, Oliva patted Steve down and felt a wad in his jacket pocket (which he suspected was a large amount of money). He reached in, pulled it out and discovered his suspicions were correct. He took the money and placed it in the police vehicle. By this time, a backup unit had arrived with two officers. Oliva quietly explained his plan to the officers, and one of them headed toward the car to search it while the other kept guard on Steve. Oliva went to talk to the woman.
When he arrived at the car, he saw the woman (Tina) was speaking on a cell phone. He immediately grabbed the phone and said, "What do you think youíre doing?" With that, he looked at the phone and saw it displayed the phone number she was talking to. It said DD: 555-3451. That number looked familiar, and he remembered calling Dan earlier in the day. Based on the similarity, he concluded she was calling Dan, and he immediately hung up the phone. By this time, Barb Bakkup, the backup officer, had opened the trunk by means of the trunk release in the passenger compartment and had begun searching. In an unlocked briefcase, she found a large quantity of drugs, which she seized. The officers then placed Steve under arrest. A very small quantity of marijuana was found in a search of Tinaís purse. Both Steve and Tina were given Miranda warnings and were transported by Bakkup to the station for processing. Bakkup told Tina that, based on the small quantity of marijuana found, she would likely be released on her own recognizance when she got to the station.
While Bakkup was transporting the arrestees to the station, Oliva radioed for additional backup and went to Danís house. As he drove up, he saw Dan placing a box in the trunk of the Mercedes. Dan closed the trunk and started to walk back toward the house. Oliva thought that Dan appeared to speed up upon seeing him, and he slammed the door to the house as he entered. As Oliva banged on the door and shouted "Police," his backup arrived. They assisted Oliva in forcing entry into the house. He saw Dan in the den in the back next to a large box. He approached him with his gun drawn, ordered Dan to put his hands over his head and told him not to move. He then opened the box, expecting to find drugs. Instead, he found jewels, some loose and some mounted, in individual glassine envelopes. Oliva was shocked by the discovery and said, "Whatís this?" Dan responded, "Howíd you know about me? I thought weíd been so low key that weíd totally avoided suspicion. I guess I was wrong. How much do you know about our jewelry smuggling operation?" At that point, Dan looked at Oliva and realized he seemed surprised. He figured heíd better shut up and he stopped talking. He was taken to the station for processing.
Meanwhile, Tina had arrived at the station and was placed in an interrogation room. Bakkup got her ID and told her she would be processed as soon as Oliva arrived back at the station. Bakkup said, "Yíknow, like I said, for that small amount of marijuana, youíll likely be able to get released on your own signature and get outta here pretty quick. If I wanted to, I could make a bigger deal about that little phone stunt you pulled back there; probably charge you with obstruction. But I donít think it did any harm and Iíll give you a break on that." Tina looked somewhat incredulously at Bakkup. "What do you mean stunt? I called my lawyer and asked her to come to the station. I figured you were gonna arrest me and I wanted her here to help me out in dealing with you guys. I know better than to be at the station with cops by myself." Bakkup was taken aback and left the room. She decided to check on what Tina had just said. When she ran the phone number, she discovered it was listed to a D.D. Lawya, a criminal defense attorney in town. He also ran Tinaís ID and discovered she was under indictment for a fur theft conspiracy and was awaiting trial.
By that point, Oliva had arrived back at the station and Bakkup had filled him in about Tinaís pending charges. Oliva started to tell Bakkup about what he found at Danís when it hit him. He had seen some jewelry in Tinaís purse when he searched it, including several stones in small bags. He just hadnít paid much attention to it, but now he realized that Steve and Tina were at Danís to purchase smuggled jewelry. He and Bakkup went to the room where Tina had been waiting. They took her purse, which had been transported to the station, with them. When they came in, Oliva reached into her purse and took out the jewelry and stones. He turned to Tina and said, "Well, I guess youíve graduated from furs to jewels. Youíve got good taste in stones. I wonder if your taste in furs is that good." Tina responded, "sh*t, I guess youíve got me for more than that little bit of grass. But like I said before, Iím really not a player. I just like the nice stuff and guys want to let me have it . . . ." She proceeded to make incriminating statements regarding both the furs and the jewelry. She was then taken to be arraigned.
Dan, Tina and Steve are all being prosecuted for all relevant offenses. Discuss all criminal procedure issues raised by these facts. DO NOT address any issues here relating to the ability to assert claims or to exceptions to the exclusionary rule.
If independent evidence were developed to show that Tina was involved with Steve in drug dealing, would she be able to prevent the drugs seized in the search of the trunk of the Lexus from being admitted against her at trial (assume the evidence is subject to suppression)? Explain.