Winter Semester 1997
FINAL EXAMINATION
(Take-home Exam)

This is a twenty-four hour take home exam.

There is one question. In answering it, 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.

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Saturday was a very busy and productive one for Officer Olivia Oliver and her partner Patti Partna. Actually, their evening shift had started rather slowly, but then they received an odd call. It appeared that a woman was picking up strange voices through the baby monitor (a cordless intercom system) in her home. Apparently, the baby monitor was inadvertently picking up transmissions from a cordless base to a cordless phone somewhere in the neighborhood, and the contents of the conversations were disturbing to the woman. She asked for the police to come and check it out.

Oliver and Partna arrived at the womanís home around five that evening. The woman, who identified herself as Diane Dogudder, reported that she had overheard several calls that sounded to her like people might be setting up a drug deal. When asked why she thought this, she indicated that the conversations sounded suspicious - people kept calling and asking someone named Charisse if the "stuff" had arrived yet, and Charisse kept telling them it would be good when it arrived but there had been a delay. The officers pressed for more information, but Diane was not able to tell them much more. However, just as they were finishing their report, another set of voices came over the monitor. Oliver asked Diane if she had any objection to the officers taping the conversation, and Diane indicated she did not. Oliver turned on her tape recorder and taped the following conversation as it came over the monitor:

Voice One: Charisse, Monica here. Whatcha doiní

Voice Two: Just hanginí; waitín for the stuff. Itíll be here any minute. From what I hear, itís dynamite. The best weíve ever gotten. Youíre gonna love it.

Voice One: Great. Just in time. I need stuff for those parties coming up. Iíve got buyers coming over tomorrow.

Voice Two: Thatís cool. Iíll have enough for all your clients. I canít wait to check it out. After the shortages weíve had since the last crackdown, Iíll be glad to be back in business for real.

Voice One: Yeah, me too. When can we get together? Iíve got to be at Suede tonite. Said Iíd make an appearance around ten. Iíll be wearing one of those hot dresses I got from you.

Voice Two: Hey, thatís cool. Iíll swing by and pick you up around eleven. Iíll bring some of the new stuff and weíll see what you think.

Voice One: Sounds good to me. See you around eleven.

When the conversation ended, Oliver requested that Diane tape any further conversations she heard on the monitor. She agreed (although it turned out that the Charisse/Monica call was the last one). They also asked Diane if she knew anyone in the neighborhood named Charisse, but she indicated she did not. Oliver and Partna then left to see if they could figure out where the call had come from. They did a brief drive around the neighborhood but were unsuccessful in getting any further information.

Based on what they had heard. Oliver and Partna believed that Charisse and Monica were dealing in drugs and were setting up a drug sale. Although theyíd never heard these names before in their undercover reports on the local drug trade, they did know that there had been several recent drug arrests which could account for the "crackdown" referred to in the call. They wanted to follow up and were trying to decide how to proceed when Partna had a realization: Suede must be The Suede Cat, a popular new club in town. With this realization, they began to formulate their plan.

Oliver and Partna decided to set up a stake-out near The Suede Cat. They arranged to have two other undercover cars there as well. The plan was to arrive around 10:30 and watch for a women arriving to pick up another woman. If such a situation arose, the officers would call in the license plate number to see if the car was registered to someone named Charisse. If so, they would stop that car a few blocks from the club. If not, if the women looked suspicious or otherwise seemed to fit who they were looking for, they would follow and pull that car over anyway. If the names didnít match and they didnít appear suspicious, they would not follow the car.

At about 10:30, Oliver and Partna arrived and set up their surveillance from their undercover vehicle. They were positioned where they were fairly inconspicuous but could see the front of the club. At 10:50, they observed a middle-aged woman pull up in front of the Club. They ran her plate and the car was registered to an Yvonne Yardley. A few minutes later, a young woman exited the club and got in the car. It appeared to the officers that the driver was probably the young womanís mother. In addition, the young woman was not dressed as the officers had expected from the call. Based on those observations, they decided not to follow that car.

A few minutes later, a young woman in a flashy dress came out of the club and looked around. She then went back in the interior doorway. A few minutes after that, a car pulled up. The officers immediately began to run that plate. Meanwhile, the young woman emerged from the club, carefully looked around the area, and then quickly slid into the waiting car. It then pulled away quickly. The officers received a report back on the vehicle, and it was registered to a Charles Claremont. No family information was available. They decided to follow this car. The other officers remained at the club to see if anyone else of interest emerged.

About four blocks from the club, Partna turned on her police light and placed it atop her car. Charisse saw the flashing light behind her and pulled over. Oliver and Partna approached the car Charisse was driving and asked for her license and registration. While getting the documents out of her purse, Charisse asked, "Whatíd I do?" Partna responded, "We just want to talk to you. Can I see your license please?" Charisse handed Partna her license, and Partna read the name "Charisse Claremont." Oliver asked the passenger for her name, and she responded, "Monica Mohr."

At that point, Oliver asked Charisse, "Have you seen any suspicious activity tonight?" She responded, "No, maíam." Oliver then said, "Youíre not involved in any criminal activity here, are you?" Charisse appeared nervous and responded, "No," at which point Oliver then said, "So you wouldnít mind if I look in your trunk, would you?" Charisse appeared even more nervous and responded, "Well, itís not my car. I donít know." Oliver then said, "You have the key [to the trunk], donít you?" When Charisse responded, "Yeah, I guess so," Oliver came back with "So I can look then?" At that point, Charisse just shrugged.

Oliver took the keys from the ignition and opened the trunk. She immediately saw several large shopping bags. When she opened the bags, she saw lots of expensive clothing, mostly designer, with tags from several major department and specialty stores. Upon seeing the clothing (rather than the drugs she expected), Oliver blurted out, "Whatís this?" The two women appeared to look surprised, but Oliver suspected they were feigning surprise because they were "overplaying" their response. Before anything else could be said, though, Partna, who had been on the radio back at their vehicle, called Oliver over and began to whisper to her. She advised Oliver that she had received back a report on the license check. "This Charisse chick, sheís just been indicted for conspiracy to traffic in stolen merchandise. Sheís apparently part of a ring involved in thefts of high priced merchandise - mostly designer clothing and jewelry - from fancy department and specialty stores. Sheís apparently involved in fencing the stuff. Saks was the last place hit." Oliver turned to Partna and said, "Youíll never guess what I just found in the trunk!"

With that, Oliver returned to the rear of the vehicle where the two women were accompanied by officers from a back-up car. Oliver walked up to them and said, "Cut this surprise crap. I know youíre into fencing this high-priced designer stuff. And it looks like this is not the first time, either. Youíre facing some stiff time here. Youíre not going to have much opportunity to wear those fancy clothes where youíre headed." At that, Charisse started to cry. "I knew I shouldía stopped when I thought they were on to me last month; when we thought we were being followed after the pick-up of the stuff from Saks. I guess we blew that one, and now this. How stupid." With that, Oliver placed both Charisse and Monica under arrest, handcuffed them and arranged to have them taken to the station. Both were searched, and a small quantity of cocaine was found in Monicaís purse. They were then placed in a van for transport to the station. At this point, the back-up officers searched the car. They seized the bags of clothing from the trunk. In the locked glove box, they found a small address book. The address book contained names, phone numbers, brand name preferences and sizes of many women as well as names and addresses of several other people (who, it turned out, had been involved in the earlier conspiracy). They seized this as well.

Just as Oliver and Partna were preparing to leave for the station to meet the van, a call came over the radio indicating that a rape had just been reported in the area where they were located. They had been involved with a task force that was investigating a string of rapes in the general vicinity, but little evidence had been obtained and, unfortunately, they were in the situation of waiting for another crime to occur before they could do much else. In light of their involvement in the prior investigation and their proximity to the scene, they decided to leave the rest of the processing of the women to officers at the station and to respond to the rape call instead.

The report indicated that a white male had entered a ground floor apartment and threatened a young woman with a knife. After raping her, he left through a rear door and sped away in a dark colored older car. Although the rape victim could provide little helpful detail, the rapist was apparently seen leaving by a neighbor. The details of what the neighbor had seen were not yet available, but they were told to watch for an older, dark colored car being driven in the area by a white male.

Almost immediately after entering their vehicle, Oliver observed a white male driving a blue car. It appeared to be an Ď87 or Ď88 Buick. Although it was not particularly dark in color, Oliver suspected that might be the car, but really didnít have much information to go on. She followed behind the car and observed that it was traveling several miles over the posted speed limit. Accordingly, she put on her lights and siren and signaled the driver to pull over. When he did so, she and Partna approached the car. They asked the driver, who appeared to be sweating heavily, for his license and registration. They also requested that he step out of the vehicle and put his hands on the car. He asked, "Whatís the problem?", and Oliver replied "You were speeding." He appeared relieved. With that, Partna patted him down. She did not find anything of interest.

Meanwhile, Oliver returned to their car to check out the license and registration of the driver. His name was Roger Rapier and he was 28 years old. Oliver also received an update on the radio concerning the rape report. The neighbor had given a fairly good description of both the alleged rapist and the vehicle in which he fled. He was white, in his 20's, short, muscular, with fairly long hair. He was driving an older Buick, dark blue, with the numbers 5492 in the license. The report indicated that the knife used by the rapist had not been recovered. When Oliver returned to where Partna had Roger detained, she noticed that he was short, white, fairly muscular and had pretty long hair. His license number was KR5-493. At that point, she handcuffed Roger and told him he was under arrest. She immediately asked him where the knife was. He responded, "What knife? I donít know what youíre talking about." She answered, "I think you do. The one you used to terrorize that young woman you raped." He responded, "I donít know what youíre talking about. I donít know anything about any knife or any rape."

While this was going on, Partna was searching the car. Under the passenger seat, she found a knife, which she carefully retrieved and brought to where Oliver was standing with Roger. On seeing the knife, Oliver exclaimed, "well, what do we have here? I wonder where that came from, and I wonder how heís going to explain it." Roger immediately replied, "I never saw that before in my life." (Further testing revealed that the knife had Rogerís prints on it. While the victim is not able to positively identify the knife, it does fit the general description of the knife used by the rapist and is certainly admissible as relevant to Rogerís credibility should he testify.) Roger was then placed in the police car and transported to the station. When he arrived, he was booked, given Miranda warnings and taken to an interrogation room. While there, he was visited by Detective Ian Inkwizita.

Inkwizita told Roger he wanted to talk to him and help him get this matter resolved. He told Roger, "I know you did this, and so do you. Weíve got six girls, they all say the same thing. They all describe a rape by a short, muscular white guy. And look at you, youíre that guy. You might as well admit it, because it goes easier when you do." Roger responded, "Hey. Youíve got the wrong guy. I didnít rape nobody." Inkwizita immediately replied, "Sure, you didnít do nothiní. Just like all the rest of them guys in the joint. Didnít do nothiní. But what about the knife we found? Itís got your prints all over it. And I bet it has traces of skin cells that we can trace to the victim with DNA. Thatíll show itís you. And theyíre testing that right now. If the test comes back before you talk to me, thereís not much I can do for you." (Inkwizita knew that it was unlikely they could recover any DNA from the knife). Roger continued to deny his involvement.

A few minutes later, Inkwizita added, "You think youíre real smart, using a condom (some of the victims had reported condom use by the rapist). Well, all condoms leak a little - just enough for some DNA to get through. The victim is being tested as we speak. Iíll have that DNA report soon, and then thereís nothing you can say to help yourself." This appeared to upset Roger, who seemed surprised by what Inkwizita was saying (in fact, although itís possible to collect DNA from semen that leaks through a condom, it is very unlikely that it will happen successfully in any given case. In addition, DNA testing takes several weeks.). "I donít like hearing that. I donít want to hear any more about that," Roger replied. "What, is it getting to you? Is it your Catholic guilt? You are Catholic, arenít you? Or is it that youíre afraid of how rapists are treated in prison?" Roger was getting more upset. "Stop! I donít want to listen to this," he said. "I canít continue to listen to this" "OK," then letís talk about you. Youíre not a bad person. Really, youíre not bad, youíre sick. You need help. Let me help you." Roger began to say, "I canít, I donít want to . . . " His voice trailed off as he shifted in his seat. "I canít help it. They all think Iím a stud; the guys think I can have any chick I want, but . . . ." As if realizing what heíd said, Roger suddenly sat up straight, stopped talking and looked Inkwizita in the eye. "Iíd better get a lawyer. I can have one, canít I?" Inkwizita responded, "You can when you go to court. Not here. We donít have any lawyers here. You really donít want a lawyer, now, do you. Donít you feel better getting this off your chest?" Roger sunk back in his chair. "I guess I might as well talk to you. "You see, Iíve got this problem with girls, women, I mean, and sex." Then, again, just as before, Roger stopped. "Iíll wait Ďtil I get that lawyer in court. I donít want to say any more." With that, the session ended and Roger was taken to be arraigned.

Charisse is being charged with possession of stolen property (in addition to the outstanding conspiracy charges). Monica is being charged with conspiring to purchase stolen property and possession of cocaine. Roger is being charged with six counts of rape. All evidence mentioned will be introduced against each defendant as relevant.

Discuss all criminal procedure issues raised by these facts. (Note: Do not address any potential issues under the federal wiretap statute).