Winter Semester 1998
This is a twenty-seven 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.
The University of Kansa-Mokans City (UKMC) is a public urban law school with facilities much like UMKC. Recently, several faculty, particularly in the Research and Writing Program, have noticed significant improvement in the work of a number of students. This improvement appeared sudden and more substantial than would normally be expected. In addition, there appeared to be some similarity in the work submitted by many of these students, but not enough to pin down as clearly indicative of cheating. The professors involved initially believed this might be the result of unauthorized collaboration, but after some discussion among faculty and ultimately with Dean Derman, the Associate Dean, they began to believe that the problem might be the result of a cheating "ring." It is clear that, if someone were providing exams, exam answers or completed research assignments for other students, this would constitute criminal education fraud under state and federal law.
To address this problem, Dean Derman initially discussed the matter with campus police. In light of the magnitude of the problem, however, and the need for investigative expertise, a decision was made to call in the local police. Thus, law school administrators, in conjunction with both campus and local police, got together to develop a plan to determine whether there was an organized cheating ring in operation. Those involved decided that, in investigating, care needed to be taken to avoid "tipping off" any of those involved.
By the time the investigation began, it was nearly mid-semester and midterms and writing projects were underway. The officers did not know how information was being disseminated to students or how orders were being placed. They realized that this could be done through hard paper copy, floppy disks or electronically, and that their investigation had to cover all possibilities. As a first step, the officers, along with Dean Derman, decided to review the contents of student mailboxes (actually hanging folders contained in a large rack outside the student lounge) at the school. One morning, at about 3:30 a.m., the officers met Dean Derman at the school and they went through all the student folders. They did not remove anything, nor did they open any envelopes or closed containers. Rather, they made a list of the contents of each folder beyond flyers, administrative handouts and other clearly identifiable items. In particular, they made note of eight students whose mailboxes contained security envelopes that appeared to have computer disks in them.
The officers repeated this procedure four more times over the next two weeks. Based on these five incidents, the officers compiled a list of seven students whose folders had security envelopes with disks on more than one occasion. Four of these students werestudents who had been identified initially to Dean Derman. They also discovered that, each time they checked the folders, two students, Sally Student and Chuck Cheata, each had a number of security envelopes in his or her folder. Some of these envelopes were sealed (but did not appear to contain disks); others were unsealed and appeared to be empty.
After reviewing the results of these activities, Dean Derman had the records of the seven students checked to determine if they were in common courses and to see whether papers or midterms had been required recently in their classes. In addition, he asked the cleaning staff to give him the trash from Sally and Chuck's student offices rather than dumping it as usual. The cleaning staff did so, and Dean Derman turned the trash over to the police. When they examined the trash, they found several security envelopes that had apparently been torn opened and discarded in addition to an empty box of formatted disks. No other relevant evidence was found.
Meanwhile, Dean Derman had checked on winter semester midterms of the seven students who had been identified through the analysis of mailbox contents and discovered that, in two of their classes, their performance had improved significantly. This caused him to believe that exam information was also part of the cheating ring. He and the officers wondered whether those involved in the ring were getting information regarding the contents of exams from faculty offices or computers. They also surmised that, as far as research and writing projects were concerned, it was likely that someone was doing the research and providing memos and briefs for the students.
Dean Derman and the officers decided on two strategies to try and get additional information. First, they determined what research assignment the students who had been identified as recipients of the disks had been given, and they asked WESTLAW and LEXIS to provide printouts of the research conducted by those students as well as by Sally and Chuck. These printouts revealed that the first year students had not used the on-line computer research services to do research on their assigned topics (although that would have been expected), and that Sally had in fact done research related to these topics although no apparent reason for her having done so could be found. Secondly, they decided to monitor cars in the Law School parking lot late at night to see if either Sally or Chuck were hanging around late. Police thought that this might indicate that they did in fact have access to faculty or secretarial offices and were accessing them after hours. Officers did not want to tip them off, so they did not monitor the building itself. Rather, they had patrol cars drive through the lot after closing and noted the cars that were parked there. Three times during the next week the officers on patrol discovered cars known to belong to Sally and Chuck in the lot after 11:00 p.m. (when the building closes).
In light of this information, the officers decided on a plan. They determined that the next time campus police observed both cars in the lot after closing, they would notify the city police, who would then follow the cars after they left the school and see if they could get any further information. Several days later, both cars were seen in the lot, and officers decided to put the plan into action. Police watched the cars from a University building across the street, and at about 12:15 a.m., Sally and Chuck emerged together from the Law School. They went to their respective cars and left the lot. The officer across the street radioed to police cars in the area, and they began to discreetly follow the students.
About five minutes after leaving the lot, Sally was observed by officers going about 5 miles over the speed limit on a local street. A patrol car that had been following turned on its lights and pulled up behind Sally. She pulled over in response to the lights. Oliver ordered Sally to exit the car, and she complied. Sally then asked Officer Oliver what the problem was, and she responded, "you were going too fast. And thereís just been a burglary in the area (which was not true). Your car matches the description of the car seen leaving the scene. I want to make sure you werenít involved." Sally immediately responded, "Are you kidding? Iím a law student. I was just on my way home." Oliver responded, "Are you sure youíre not involved? Youíre pretty close to the scene, and you really do fit the description. Do you mind if I look in your car to make sure none of the stolen stuff - stereo, laptop, yíknow - is in your car. Thatís the best way to clear this up." Sally responded, "Well, it really is late, and Iíd like to get home." Oliver responded, "So you donít want me to see whatís in your car," at which point Sally responded, "No, itís not that. Never mind, forget it. Go ahead and look. Youíll see I donít have any stolen property."
By now, a back-up unit had arrived. Officer Oliver stayed at the front of the vehicle with Sally and leaned into the passenger compartment. She saw what appeared to be a laptop computer and said, "Well, what do we have here?" Sally immediately responded, "Thatís mine. I use it for school." Oliver asked, "Can you prove that?", to which Sally said, "Iíll turn it on and show you." She then proceeded to turn on the computer at which time a screen appeared asking for an access number. Sally typed in a number as Oliver watched. (Oliver made a mental note of the number that Sally entered and put it in her report.) Once Sally had entered the access number, she pulled up some class notes and showed them to Oliver. Oliver said, "I guess it is yours after all." Meanwhile, the back-up officer was looking in the open trunk (Oliver had popped the trunk using a lever in the passenger compartment while she had been looking through the front of the car) and began going through a backpack he found there. In the backpack, he noted that there were several security envelopes in a rubber band and two boxes of disks. There were also several file folders, which he intended to look into. Before he could do so, Sally, no longer distracted by the laptop incident, saw the officer looking through the backpack and yelled, "Hey, leave that alone. Thatís my personal stuff." Oliver responded, "I thought you said we could look." Sally replied, "Just leave that alone, please. You can see thereís no stolen stuff here. I need to get going. I think youíve made me wait here long enough. Now are you going to give me a ticket or what?" Oliver said, "OK. This time Iíll just give you a warning, but you better watch your speed from now on. Next time youíll end up with a ticket." With that, the officers let Sally leave. They immediately filled out a report that included the computer access number and the information about the envelopes, disks and folders.
Meanwhile, Chuck was also going a little too fast and was also pulled over a few blocks from the school. Officer Powers asked Chuck for his license and registration. Chuck didnít have either with him and began to both make excuses and indicate it was no big deal. When Powers indicated this could be a serious matter, Chuck told him to stop hassling him and began mouthing off. Powers responded, "Hey, Buddy, you better watch yourself or youíll get yourself arrested." Chuck then said, "Well, why are you messing with me?", to which Powers responded, "Look, you were speeding, you donít have a license or registration or any ID. I have to check this out. Itís not personal. Give me your name and social security number and maybe we can get this settled." Chuck gave Powers the requested information and he put it in the computer, but nothing came up. Powers told Chuck that the computer didnít show a license for him, to which Chuck responded, "Thatís Ďcause itís out of state."
In light of that information, Powers responded, "If itís out of state, we canít do this out here. I need you to come to the station with me to get this cleared up." Chuck immediately said, "Hey, Iím a law student. Is this really necessary. Itís late. Canít you give me a break? I know lots of police and people at the prosecutorís office. Iím sure we can work this out." Powers stated simply, "Sorry, I canít do that. We need to check your license and ID, and I need to do that at the station. If you donít want to cooperate, we can do this the hard way." He started to take out his handcuffs, at which point Chuck said, "No, that wonít be necessary. But what about my car?" Powers said, "Since you donít have a license, I canít let you drive, but if you want, Officer Rogers can drive it to the station for you. You can go in the car with him, but we need to pat you down first." Chuck asked, "Is that really necessary," to which Powers responded, "Yes, for safety if youíre going in the car with one of us." Powers then patted Chuck down, found nothing and Rogers drove him to the station.
When they arrived at the station, Rogers took Chuck to an interview room. He told Chuck he needed to wait there while he checked on his license and registration. He asked him for the state in which he was licensed and told him heíd be back in a while. He then added, "Donít go anywhere." Unbeknownst to Chuck, an officer was stationed outside and he was not going anywhere if he tried. While Chuck was in the room, and also unbeknownst to him, officers searched his car using the keys that Rogers had driven with and had not returned to Chuck. They found several joints of marijuana in a pouch in the front console and a box containing computer disks, several boxes of security envelopes and several folders containing what appeared to be research notes and exams in the trunk. Officers seized both the pouch and the box. Officer Powers then returned to the room in which Chuck was waiting. Chuck immediately stated, "So, I guess I can go now," to which Powers responded, "Sorry, not so fast. Weíve got a problem here." Chuck said, "What do you mean. You got my license, didnít you?", to which Powers answered, "Your license is OK. Itís the grass in your car that poses a problem. What do you know about that?" Chuck immediately stated, "Shit, I forgot about that." He then paused and added, "Wait, Iíd better not say anything else. I donít think I should discuss this with you." Powers said, "Thatís fine. The stuff pretty much speaks for itself. But I guess you wonít be going home right away." With that, Powers searched Chuck, finding two additional joints in his wallet and what appeared to be a Law School key (it turned out to be an unlawfully copied master key) in his pocket. Powers seized both items. Chuck was taken for booking and then to a cell to await arraignment later in the morning.
Worried that Sally, and perhaps any others involved in the cheating ring, might be tipped off by the arrest of Chuck and the fact that both of them had been stopped the previous night, Officers Oliver and Powers decided to seek a warrant to search Sally and Chuck's apartments and school offices. They prepared affidavits detailing all the relevant facts set out above and sought warrants to search for exams, research materials, computer disks, envelopes, names of students and any other evidence of cheating or fraud. They presented the affidavits to the local magistrate on duty, and she issued warrants for all places requested. Officers immediately executed the warrants. At Sally's apartment, they seized her laptop (which they accessed using the code Oliver had memorized). The computer contained research papers that had been submitted by students in the Research and Writing Program as well as other research materials. They also found and seized checks made out to Sally issued by several students who were suspected of buying papers and tests. At Chuck's apartment, they found several stolen exams and requests for tests and papers. In his office, they found a list of exams and papers available that had apparently been given to customers. All of these items were seized.
Meanwhile, Officer Powers remained suspicious about Chuck. Something seemed funny to him about Chuck's background, so he ran his prints (obtained in the booking process) through a nationwide computer network. He discovered that Chuck had another identity. His real name was Fred Frawd, and he was a fugitive from California where he was under indictment for computer and student loan fraud. Powers decided to pay Chuck a visit before he was taken before the judge. He asked to have Chuck brought to an interview room. As Powers arrived at the room, he received a report from one of the detention officers that Chuck had been acting like a big shot in detention, telling people he was a third year law student, giving them advice and bragging that he would beat whatever the cops had on him.
Powers (along with his partner) entered the interview room, sat down across from Chuck, and immediately gave him his complete Miranda warnings. He then said, "I want to talk to you." Chuck responded, "I thought you said the grass speaks for itself." Powers stated, "Thatís not what I want to talk about. Thatís the least of your problems." Chuck said, "What do you mean?" and Powers immediately responded, "With your law school smarts and connections, you could probably get away with a little bit of grass, but cheating, computer and loan fraud are a bit more serious. Chuck replied, "What are you talking about?", to which Powers immediately responded, "Iím talking about you, Mr. Frawd."
Chuck seemed visibly shaken. "You know about the exams, the papers, everything?", he asked. Powers continued, "Looks like youíre in pretty deep. I think we have a whole lot to talk about." At that point, Chuck looked directly at Powers and said, "I want to call Professor Barney" (a Criminal Law and Procedure professor at the Law School who, as both Chuck and Powers knew, was a licensed attorney and former President of the Kansa Association of Criminal Defense Lawyers). Powers got up and said, "If thatís what you want, fine." He then turned to his partner and said, "Letís go." As they started toward the door, Powers said to his partner, "Well, I guess our big shot law student is not such a big shot after all. Maybe with him BS stands for bullshit, not big shot, Looks like when the going gets tough, he suddenly canít handle it. But thatís fine. We donít need him. Weíve got plenty of others who can make their deals getting him."
Just as Powers was walking out the door, Chuck called out to him. "Wait, who else do you have?" Powers responded, "I donít know yet. Theyíve searched your place and Sally's too. Theyíre out rounding people up now. I donít know whoís here yet, but I bet weíll have a bunch of talkers real soon." Chuck interrupted, "Maybe I . . .", but Powers just continued, "In fact, we really donít need you. Iím sure we can get what we want from the others." Chuck immediately responded, "No. Only Sally and I know who the insiders are, and I know more than she does. Iíll talk to you if I can get a deal." Powers stated, "Iíll work something out if you tell us everything. But it will only work if you donít hold anything back." Chuck responded, "OK. Iíll give you what you want, but only if I get a deal." Powers responded, "Fine, letís hear what youíve got." With that, Chuck proceeded to give an extensive statement implicating himself and others in small time drug sales, a large scale cheating operation at the law school and the California computer and loan fraud.
Chuck has been charged with possession and sale of marijuana, education fraud for the law school cheating activity and computer and loan fraud in California. Sally has been charged with education fraud. Several other students have been charged as well. Discuss all criminal procedure issues raised by these facts.
Note: Even if you believe certain evidence is likely to be suppressed and other evidence may be fruits thereof, after you have identified the issues and possible resolutions, proceed through the problem on the assumption that there may be other grounds relating to administration of the exclusionary rule (not covered in this class) that may allow admission of the evidence on other grounds (if necessary to move on in your analysis). In other words, do not cut off analysis of obvious issues by prematurely concluding that the evidence will be otherwise inadmissible as fruits of a prior search.