Criminal Procedure Practice Exam 11:30 am – 12:30 pm: Practice Exam 12:30 pm – 1:00 pm: Review DO NOT OPEN YOUR EXAM BOOKLET UNTIL INSTRUCTED TO DO SO This is an open book/open notes practice exam. You may use a word processing program or handwrite your exam. I will provide you a “5 minute warning” before the end of the quiz. If you finish before time is called, please remain seated.

Important Facts Gang hangout—reasonable suspicion? Unhitched trailer-would automobile exception apply—mobile? Door was open Why modify “men” with “middle-aged”? Men asked to leave trailer—what basis (Terry stop??) The frisk followed the stop—what basis? Arrest of Bates—valid? Basis for search of bag? Shape of brick = drugs? Bates outside of trailer.

Major Issues I.Terry Stop and Frisk A. Stop B. Frisk II.Search of Trailer A. Automobile exception B. Search incident to arrest C. Other warrant exceptions i. Plain view ii. Exigent circumstances

Terry Stop Issue: Was this a lawful stop? Rule: Stop is lawful if police have reasonable suspicion to believe the suspect is committing a crime. RS is a totality of the circumstances test; police need articulable facts to justify the stop. A mere hunch is not enough. Analysis: Drinking in public is a crime. Diaz sees the men drinking in public (the door to the trailer was open). Therefore, RS exists. There is no plausible argument that the stop was unjustified.

Terry Frisk Issue: Was the frisk lawful? Rule: A frisk is lawful if the police have reasonable suspicion that a suspect is armed and dangerous. The purpose is to protect the police (not search for evidence). Arguments for Bates: Bates is a middle-aged man; he doesn’t look like a gang member who are usually younger. Drinking in the back of a trailer is not a violent crime. Bates cooperated and didn’t make any sudden moves that would cause Diaz to fear for her safety. Arguments for Prosecution: Gang members frequent the area; gang members are dangerous and often carry weapons. Diaz is outnumbered. The men are drinking and alcohol tends to make people more violent. Note: I wasn’t asked to draw a conclusion so I am not offering one.

Search of the Trailer Issue #1: Was the search of the trailer justified under the “automobile exception” to the Fourth Amendment warrant requirement? Rule: Police may search an automobile without a warrant if they have probable cause to search. PC is a totality of the circumstances test that asks whether there is a fair probability that evidence will be found in a particular location. The search extends to any part of the automobile and includes containers. Arguments for Bates: The trailer is not mobile, so the automobile exception doesn’t apply. Diaz already found the gun; there is no reason to believe he has additional weapons. Arguments for Prosecution: The automobile exception creates a presumption of mobility; it would be easy to attach a cab to the trailer. Evidence of the crime of drinking in public could be in the bag. If the bag is shaped like a brick, there is PC to believe it contains drugs.

Issue #2: Does the search of the trailer fall within the warrant exception for a valid search incident to arrest? Rule: A search incident to arrest requires neither PC or a warrant. As long as the arrest is valid, the search incident to arrest for evidence that could be destroyed and for weapons is permitted. Under the Fourth Amendment, a search of the passenger compartment of a vehicle incident to arrest is valid if the suspect is unsecured and within reaching distance of the vehicle or if there is reason to believe that evidence relevant to the crime of arrest might be found in the vehicle.

Arguments for Bates: Although the facts are unclear on the relative location of Bates and the bag, given the size of the trailer, it is unlikely the bag was within grabbing distance. If Bates was placed in handcuffs, he was not unsecured. There is no additional evidence that would support the crime of carrying a concealed weapon. Even if there is another weapon in the bag, that evidence is not relevant to the crime of arrest, carrying a concealed weapon. Arguments for Prosecution: If Bates was unsecured, he was within grabbing distance of the trailer until placed in the back of the police car. The bag might contain another weapon or other evidence to support the weapons charge. These arguments are similar to the PC analysis for the automobile exception but the prosecution might have a lesser burden here.

Issue #3: Does another exception to the warrant requirement justify the search of the trailer? Plain View: Rule-if the police are already in a place they have a right to be, they may seize any contraband they find in plain view. The problem with this exception is it doesn’t authorize Diaz to enter the trailer and the contents of the bag do not appear to be in plain view. Exigent Circumstances: If Diaz has PC to believe the bag contains evidence, the prosecution could argue the evidence could have disappeared in the time it would have taken to get a warrant (the other man could have come back to get the bag). On the other hand, Bates would argue that Diaz should have seized the bag, secured it, and then obtain a search warrant.

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