Fall Semester 1996
This is a twenty-four hour take home exam. The rules governing this exam are contained on the attached cover sheet and must be followed carefully.
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.
The K City police have suspicions that Harvey Hall is involved in large scale drug activity and that he does so using the street name "Hooch." Officers have some evidence of drug dealing by Hooch, but only have a belief, not any real evidence, that Harvey is Hooch. Although they have been trying to get that evidence for some time, so far they have been unsuccessful, They have, however, a new plan.
It seems that Harvey has not been paying all of his child support to his former wife, and the law now makes failure to pay child support criminal. A warrant has been issued for Harvey’s arrest for failure to pay support, and the officers decide to execute the warrant at Harvey’s home, hoping that they can get inside and see something that might be helpful in their drug investigation.
One day in late November, the officers set up surveillance near Harvey’s house. When they saw Harvey arrive home, they radioed Officer Oliver, who had possession of the warrant, and he arrived on the scene. Along with four uniformed officers, he approached the door of Harvey’s house, knocked loudly and called out "Police." No one came to the door. After about twenty seconds, the officers forced open the door and entered the house. Each of the officers went in a different direction, looking for Harvey. One officer stayed downstairs and looked in the rooms on the main level. Oliver went upstairs and looked through the bedrooms. A third officer went downstairs to the basement and office. Two officers remained at the exits, preventing a possible escape.
After a short time, Oliver found Harvey in the upstairs bathroom. He was apparently using the bathroom and didn’t hear the officers knock at the door. Oliver placed him under arrest. At about the same time, Officer Parker was checking out the downstairs office. When he entered looking for Harvey, he saw a computer monitor sitting on a table in the office. He approached the computer and noticed it was on. In fact, on the screen was a recent e-mail transmission that had apparently been unencrypted and had just been, or was waiting to be, read. Parker read the e-mail on the screen. It began: "Hey Hooch" and continued with what appeared to be information about a drug delivery, although it was in somewhat cryptic language - "It’s all here, and it’s really fine this time. Ready for pick up and delivery. Waiting to hear re details. Grouch." (Grouch was known to police as a drug dealer.) Parker began to copy down the message when suddenly the screen went blank and then a screen-saver appeared. Parker hit an arrow key, causing the screen saver to disappear and the text to reappear. He then finished copying the message and joined the other officers upstairs.
After Harvey had been placed under arrest, he was searched by one of the officers. A pager was found in his pocket. Oliver took the pager to his vehicle, while Parker placed Harvey in another vehicle for transport by the other two officers. Oliver and Parker then departed together for the station with Parker driving. While Oliver had possession of the pager, it went off. Oliver looked at the number that appeared in the window of the pager and copied it down. A few minutes later, it went off again, and Oliver again read the number and copied it down. From his experience, Oliver determined that this pager was likely to have a 4 to 10 number memory, and that eventually, if new calls came in, the old numbers would get wiped out of memory. In order to avoid losing those numbers, Oliver pressed the button on the pager and retrieved the stored numbers. He then recorded each of those numbers. In addition, while they were on their way to the station, the pager went off a few more times, and each time Oliver wrote down the phone number appearing in the window. The pager was turned in with Harvey and his belongings when the officers reached the station.
After Harvey was booked and processed , Officers Oliver and Parker continued with the investigation. They called each of the numbers they had copied from the pager, stating "Hooch here" when the person answered on the other end. In several cases, there was either no answer or the other person hung up. In one case, the person who answered responded, "Hey man, is the stuff in yet?" Oliver responded, "Yeah, it just arrived and it’s looking good." The respondent then said, "I’ll take half a key. Same arrangements?," to which Oliver simply responded, "Sure, sounds fine." That was the end of the call, which was taped by Oliver.
At the conclusion of the call, Oliver determined that the phone number he had called was listed as a cell phone owned by Dave Deala, who showed an address of 7654 Main. A computer check of Deala revealed that he had been indicted recently for drug conspiracy and was awaiting trial. Oliver was worried that, if word got out on the street that Hooch had been arrested, they might lose the chance to follow up with Deala and the others who had answered the phone and responded to Oliver playing Hooch. Accordingly, he and Parker immediately went to 7654 Main in search of Dave.
When they arrived at Dave’s address, they rang the doorbell and a woman answered. They identified themselves, asked for Dave and were told he was not at home. They asked if they could come in and look around, to which the woman responded, "I don’t know if I can . . . " At that point, she hesitated and seemed to nod or gesture oddly. The officer realized she was trying to signal to Dave, who had just arrived, parked in the driveway, and was walking up toward the door, that he might want to leave. Upon seeing the gesture, Dave, who was halfway up the driveway toward the house, turned and began to walk quickly back toward his car. Oliver immediately followed him, yelling "Not so fast, we want to talk to you." Oliver caught up to Dave before he reached his car and put his hand on Dave’s shoulder. Dave immediately responded, "I need to get going." Oliver answered: "You were just coming. And we want a few answers before you go anywhere." Dave stopped briefly and said, "Look, you don’t have any right to hold me. I’m outta here." Oliver responded: "Sorry, I don’t think so. You’re not going anywhere. We know you’re involved with Hooch, and we know you’ve had other trouble as well. At that point, Dave appeared to Oliver as if he might run or attack at any minute, so Oliver took out his handcuffs and had Parker pat down Dave.
During the pat down, Parker felt what appeared to be a cell phone. Without removing it, he asked, "Is this your phone?," to which Dave responded: "Yes." Parker asked for the cell phone number, and Dave told it to him. (It was the same number Oliver had called.) Parker then asked if his name was Dave Deala, and again Dave replied "Yes." When Parker asked what relationship Dave had with Hooch, Dave responded "I don’t think I want to talk about this." At that point, Oliver placed Dave in handcuffs, gave him Miranda warnings, and began to walk him toward their car to transport him to the station. While doing so, he commented, "You’ve got yourself a heap of trouble here, trying to buy more drugs while you’ve got other charges against you. You just can’t keep away from the stuff, can you?" Dave responded: "Hey, that other deal is a bum rap." He then proceeded to ramble on about the previous drug conspiracy offense, trying to convince Parker he was hardly involved. In doing so, however, he made some incrimi-nating statements regarding the conspiracy that would be helpful in that prosecution as well as some statements regarding his dealings with Hooch.
As Dave was being taken to the police car for transport to the station, officers from a back-up unit arrived and began to search Dave’s car, which was still parked on the driveway. They found a small quantity of drugs in a jacket pocket on the back seat, which they seized.
Meanwhile, other officers had prepared an application for a search warrant for Harvey’s house, seeking to search it for drugs and evidence of drug dealing. The application indicated a belief that a computer in the house had information relating to drug trafficking and requested that files from the computer relating to drug dealing be seized. The magistrate issued the warrant and, when Oliver was finished with Dave, he took it to Harvey’s house to be executed. The officers found no evidence of drugs in the house. When they found the computer, they discovered that it had turned itself off. They also discovered that it was password and encryption protected, and that it was set up to destroy internal files if anyone without the password tried to retrieve the files. Thus, the officers were unsuccessful in getting any information from the computer. There is some chance, however, that a computer expert may eventually be able to recover some of the data, but it is as yet unsure whether this will be possible.
Meanwhile, Harvey was booked on the non-support charge and was being kept in a cell awaiting his first appearance. When Oliver arrived back at the station house, he took Harvey to one of the large interrogation rooms (which had one-way glass so that other officers could observe), read him his Miranda rights and asked if he was willing to talk. Harvey responded "that depends on what you want to talk about." After some casual conversation between the two (during which nothing incriminating was said), it became clear that Oliver wanted to talk about drugs and drug dealing. At that point, Harvey said "It looks like it might be time for me to have a lawyer here."
Oliver responded, "OK, that’s fine. If that’s the way you want to do it . . ." Before he could finish, Parker entered the room carrying a stack (approximately 3" high) of computer printouts. Unbeknownst to Harvey, Parker had been watching the conversation between him and Oliver through the one way glass, and his entry was planned in the event the conversation developed the way it did. Oliver met Parker in the doorway and the two whispered for a while. Their conversation then got slightly louder, but still appeared as if it was designed to be between the two officers. Of course, it was just loud enough for Harvey to hear most of it, which he did.
Harvey could hear Oliver say, "It looks like he wants a lawyer, so we’ll have to stop." Parker responded, "It doesn’t matter. We’ve got it all right here. What more could we need from him. There’s nothing he can give us other than the name of his supplier, and we’re not likely to get that, are we?" Oliver responded to Parker, "You’re right. These middle management guys, they never roll over on the big guys. I don’t know whether they think they’re noble or too smart, but they always end up getting screwed. Anyway, if he wants a lawyer, fine. Let’s go get this processed."
Oliver turned to Harvey and said, "They’ll be taking you to be arraigned soon. You’ll get your lawyer then." He then turned to leave with Parker. Before they got to the door, Harvey called out, "What do you have there?" (He wanted to make sure he had heard the conversation between the officers correctly.) Parker responded, "You don’t want to know, but I think you do know what it is." Harvey responded, "*Sh!?*, that damn thing was supposed to self-destruct. The whole operation was based on this high level security system that turns out to be a lot of crap. I guess we’re all screwed now." He made a few more incriminating statements, then thought better of it and said, "Maybe you better take me to see that lawyer now." At that point, no further conversation ensued and Harvey was taken to be arraigned.
Harvey and Dave have both been prosecuted for a variety of drug offenses. Harvey is also being prosecuted for criminal non-support. All evidence and statements are to be introduced at their trials. Discuss all criminal procedure issues raised by these facts. DO NOT discuss here any issues relating to the ability of any party to assert claims or exceptions to the exclusionary rule.
If Grouch were prosecuted as part of a drug conspiracy, could he challenge introduction of evidence of the e-mail (assuming it is otherwise subject to suppression)? Explain.