CriminalProcedure_F2002

EXAM NO. ________ CREIGHTON UNIVERSITY SCHOOL OF LAW CRIMINAL PROCEDURE FALL SEMESTER EXAMINATION Professor Melilli Wednesday, December 18, 2002

Q 1-10 / 20 Q 11 / 25 Q 12 / 40 Class Score / 15 Total Score /100

rade ________ G

PART I Page 1 of 17

INSTRUCTIONS: This exam consists of two parts. Part I consists of 11 questions. Part II consists of one question. The first 10 questions are multiple choice questions, and you must write the letter corresponding to the single best answer on the line provided. Explanations are neither required nor permitted. Each of these questions is worth 2 points. Question 11 (the last question on Part I) and Question 12 (the only question on Part II) are essay questions. Lines are provided for your answers, which must be confined to such lines. Question 11 is worth 25 points and Question 12 is worth 40 points. The highest possible raw score on the exam is 85 points. Your grade will be based on a total possible raw score of 100 points, with up to 15 points based on your in-class work. For each question, unless specified otherwise, assume that the only applicable law is the federal Constitution. This is a closed book exam. You are not permitted to bring any materials into the exam room with you. The total exam time is 3 hours. You have 1 hours to complete each of the two parts of the exam. Write your anonymous number on each page of the exam. WRITE AS LEGIBLY AS POSSIBLE. If you cannot write legibly, PRINT. DO NOT USE ABBREVIATIONS.

EXAM NO. _____ CRIMINAL PROCEDURE A FALL SEMESTER EXAMINATION Professor Melilli Wednesday, December 18, 2002

PART I Page 2 of 17

QUESTION 1: (2 points) Gerald Areyouforeal has moved to suppress several identifications, each of which (as conceded by the government) was made without Areyouforeals counsel. The lack of counsel is the only basis for the motion. The identifications consisted of the following: (1) a photographic identification by witness number one made prior to Areyouforeals arrest

or indictment, (2) a photographic identification by witness number two made after Areyouforeals

indictment, (3) a lineup identification by witness number three made prior to Areyouforeals arrest or

indictment, and (4) a lineup identification by witness number four made after Areyouforeals indictment. Which of the following is true? (A) Only identification 4 should be suppressed, (B) Only identifications 3 and 4 should be suppressed, (C) Only identifications 2 and 4 should be suppressed, (D) All of the identifications should be suppressed, or (E) None of the identifications should be suppressed. _______


PART I Page 3 of 17

QUESTION 2: (2 points) Megan Hotwheels, on fourth amendment grounds, moves to suppress the discovery of her cars vehicle identification number and other evidence acquired as the fruits of that discovery. The undisputed evidence is that an officer, on routine night patrol, indiscriminately shined his flashlight through the windshields of parked cars in order to view the vehicle identification numbers and compare them to a list of such numbers of stolen cars. The car driven by Hotwheels produced a match with this list. The motion is: (A) denied because no fourth amendment search took place, (B) denied because no warrant is required to search a car, (C) granted because the officer lacked the required probable cause, or (D) granted because the officer lacked the required reasonable suspicion. _______


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QUESTION 3: (2 points) Defendants A and B are charged in a single indictment with the robbery and death of C. A is charged with robbery and manslaughter, neither of which is a capital offense. B is charged with first degree murder, which is a capital offense. They will both be tried jointly in a single trial. During selection of a jury to decide both criminal liability and capital sentencing, a potential juror, D, admits that he is philosophically opposed to capital punishment, but that he can and will follow the courts instructions and will vote to impose capital punishment if the law so requires. Over the objection of both defendants, D is excused for cause. Another potential juror, E, tells the court that under no circumstances could she ever vote to impose capital punishment. Over the objection of both defendants, E is excused for cause. A is convicted of robbery and manslaughter and sentenced by the court to 20 years in jail. B is convicted of first degree murder and is sentenced by the jury to death. On appeal, which one of the following is true? (A) Only A has a valid objection to the exclusion of D only. (B) Only A has a valid objection to the exclusion of E only. (C) Only A has a valid objection to the exclusion of both D and E. (D) Only B has a valid objection to the exclusion of D only. (E) Only B has a valid objection to the exclusion of E only. (F) Only B has a valid objection to the exclusion of both D and E. (G) Both A and B have valid objections to the exclusion of D only. (H) Both A and B have valid objections to the exclusion of E only. (I) Both A and B have valid objections to the exclusion of both D and E. (J) Neither A nor B has valid objections to the exclusion of either D or E. _______


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QUESTION 4: (2 points) Officer Krystal Blue Persuasion Russell receives an anonymous tip that, the following day, a large quantity of cocaine will be located in locker number 39 at the municipal bus terminal. Russell knows that drug traffickers have several times in the past used these lockers to transfer drugs. Russell, with the aid of a prosecutor and a spell-check work processor, completes an affidavit in support of a search warrant for locker number 39 of the municipal bus terminal for cocaine. A magistrate reviews the affidavit and issues the search warrant. Russell executes the search warrant, discovers the promised cocaine inside the designated locker, waits nearby, sees a person later identified as Karen William O. Douglas open the locker, and arrests Douglas. Douglas is charged with possession with intent to distribute cocaine. Douglas moves to suppress the cocaine. This motion is: (A) denied because Russell had probable cause and a warrant, (B) granted because Russell lacked probable cause, (C) denied because Russell acted in good faith reliance on the warrant, or (D) granted because there was no probable cause to arrest Douglas. _______


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QUESTION 5: (2 points) Jeremy Chorus and Angela Crusingski were out on a date, when someone approached them from behind and, in operatic fashion, sang out: Dont turn around, Ive got a gun, If you see my face, this wont be much fun, Give me all your money, then Ill start to run, No one will get hurt, when all is said and done. The group then dropped their nickels and dimes to the ground, where they were collected by the robber, who, tragically for the victims, was seen only from behind and at a distance, running from the scene. Chorus and Crusingski, however, indicated that the robber had a very distinguishable operatic singing voice, which each felt that he or she could recognize again. On the hunch that the robber might have been Mark convicted of RICO Caruso, local opera cult hero, the prosecutor caused a grand jury directive to be served upon Caruso, for the sole purpose of compelling Caruso to stand in a voice lineup, whereby Caruso and several other similarly-sounding individuals would be required to sing the words sung by the robber in order to determine whether any or all of the victims could identify his voice. Carusos attorney filed a motion to quash the grand jury directive, claiming that the directive violated Carusos fourth and fifth amendment rights. The motion to quash should be: (A) granted on fourth amendment grounds only, (B) granted on fifth amendment grounds only, (C) granted on both fourth and fifth amendment grounds, or (D) denied. _______


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QUESTION 6: (2 points) The government suspects that the trio of Jason, Matt and Sam, all siblings, are involved in a child pornography conspiracy. The government has a pretty good case against all three, but the prosecutor decides to drop charges against Sam in order to secure Sams testimony against Jason and Matt. Toward that end, the prosecutor obtains a compulsion order pursuant to 18 U.S.C. 6002-6003, which grants use/derivative use immunity to Sam. Each of Jason, Matt and Sam move for a court order preventing the government from compelling Sams testimony. Jason and Matt object on the grounds that compelling Sam to testify will violate their (Jasons and Matts) privilege against self-incrimination. Sam objects on the ground that, even with use/derivative use immunity, he will still be subject to substantial civil liability and should not be compelled to make admissions which will insure such civil liability. The court should: (A) deny all defense motions and order Sam to testify, (B) grant the motion of Jason and Matt, (C) grant the motion of Sam, or (D) grant the motions of both Sam and of Jason and Matt. _______


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QUESTION 7: (2 points) Lefty Ullrich is a notorious numbers operator (i.e., he runs an illegal lottery), and in fact an arrest warrant for Ullrich has been issued. Officer January Peppy L. Pugh, determined to execute this arrest warrant, learns that Ullrich is having dinner in the home of his father, Andrew Chateau. Ullrich does not reside with Chateau. Pugh travels to the home of Chateau, knocks and announces her identity and purpose and, hearing no response, forcibly enters the house and arrests Ullrich. When Pugh enters, she sees in plain view Ullrich and Chateau sitting at a table, pouring over numbers slips and other lottery paraphernalia. This evidence is seized and the government subsequently seeks to use it in a prosecution of both Ullrich and Chateau. Each defendant moves to suppress the evidence as the fruits of an illegal entry into Chateaus home. The ruling is: (A) both motions are denied because Pugh had an arrest warrant for Ullrich,

(B) both motions are granted because Pugh lacked a search warrant to enter Chateaus home to arrest Ullrich,

(C) only Chateaus motion is granted because only Chateau has a protected fourth

amendment interest that was violated by the entry into Chateaus home, or (D) only Ullrichs motion is granted because the evidence in Chateaus home cannot

be linked to Ullrich.


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QUESTION 8: (2 points) Defendant, Bryan Muchtogain, is charged with the ax murder of Pecky Beterson, a reputed bookie to whom Muchtogain allegedly owed a large sum of money. Detective Mydear Watson, at a time when she merely suspected Muchtogains involvement in the crime, approached Muchtogain in a bar and asked him if he knew anything about Betersons demise, and Muchtogain responded: Yeah, I killed her with my ax (statement number one). The detective then arrested Muchtogain and took him in his car to the police station. While en route, Muchtogain spontaneously stated: I had been planning on killing Beterson for several days in advance (statement number two). Watson then asked Muchtogain why he had killed Beterson , and Muchtogain responded: Because I owed her big bucks (statement number three). Muchtogain moves to suppress all three statements, solely on the ground that Miranda warnings were not given. The government concedes that Miranda warnings were not given, but contends that Miranda warnings were not required. Muchtogains motion: (A) is denied as to all three statements, (B) is granted only as to the third statement, (C) is granted only as to the second and third statements, (D) is granted only as to the first and third statements, or (E) is granted as to all three statements. _______


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QUESTION 9: (2 points) Matt Myratskis is charged with shoplifting miniature skis, which is punishable by up to six months imprisonment and/or a fine of up to $500. He supposedly stole the items for his pet, Benji. Myratskis, who is financially destitute, moves for assigned counsel. Which of the following is true?

(A) the court may deny the motion because there is no right to counsel for petty offenses,

(B) the court may deny the motion, but Myratskis may not, if convicted, be sentenced

to any term of imprisonment, (C) the court must grant the motion because the right to counsel extends to

misdemeanors, or (D) the court must grant the motion because the right to counsel extends to all cases in

which imprisonment is a potential punishment.

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QUESTION 10: (2 points) Jeremy I.M. Savage is charged in New York state court with kidnapping and assault. The crimes allegedly occurred on September 10, 1999. The victims were found beaten and bruised in a field of potatoes in New Jersey. Each of the victims testifies at trial that Savage assaulted and kidnapped the victims in New York and transported them to New Jersey. Savage is convicted on all counts. One month later, both victims die. The medical examiner establishes the cause of death as the beatings inflicted several months earlier by Savage. Thereafter, Savage is charged in New York state court with manslaughter for the deaths. He is also thereafter charged in New Jersey state court with kidnapping for the period of time he held the victims captive in New Jersey. Savage moves to dismiss the new charges in both New York and New Jersey on Double Jeopardy grounds. His motions: (A) should both be denied, (B) should be granted in New York but denied in New Jersey, (C) should be denied in New York but granted in New Jersey, or (D) should both be granted. _______



QUESTION 11: (25 points) Sergeant Preston, on solo patrol in his police cruiser, received a radio transmission from his dispatcher that a woman had just been robbed at the corner of Delaware and Holland Avenues. Preston proceeded to Delaware and Holland, where a woman flagged him down. This woman reported that a man had snatched her royal blue purse and headed across Delaware onto Morton Avenue. She described the robber as a white male, about 18-22 years old, about 54 to 56 tall, about 135 pounds, and wearing jeans, sneakers and a blue shirt. Preston knew that a 19-year-old punk named Brason Jaun lived about three blocks down Morton Avenue from Delaware, and that Jaun generally matched the description given by the victim. Preston immediately proceeded to the Jaun home, rang the doorbell, and, when Brasons mother answered the door, barged past her into the house in search of Brason. Preston went through the living room and into the kitchen, where he spotted Brason sipping carrot juice. Preston told Jaun that he (Jaun) was going down to the station and handcuffed both of Jauns hands behind Jauns back. Preston then noticed a royal blue purse on the kitchen table. Preston asked Jaun where he (Jaun) had obtained the purse, and Jaun responded that it belonged to his mother. Preston then inquired of Jauns mother, who admitted to Preston that she had never seen the purse before. Preston then seized the purse (which turned out to be the purse snatched from the victim) and transported Jaun to the police station. The next morning, Jaun was arraigned and was assigned counsel, who secured Jauns release on bail pending trial. Jaun pleaded not guilty. Later that afternoon, Preston saw Jaun on the street and asked him: How could you plead not guilty? You know you did it. Jaun responded: Hey, I know it and you know it, but youll never prove it! You are the assigned counsel representing Jaun. You have decided to file a motion seeking to suppress: (1) the purse taken from Jauns kitchen table, (2) Jauns statement made in his kitchen, and (3) Jauns statement made following his release.



You may assume that all of the facts are undisputed as stated above. Articulate and explain all of the arguments to be advanced in support of your motion. Your answer should read as an advocates memorandum to be submitted to the court on behalf of your client. ______________________________________________________________________________

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EXAM NO. _____ CREIGHTON UNIVERSITY SCHOOL OF LAW CRIMINAL PROCEDURE A FALL SEMESTER EXAMINATION Professor Melilli Wednesday, December 18, 2002

PART II Page 1 of 11

INSTRUCTIONS: This exam consists of two parts. Part I consists of 11 questions. Part II consists of one question. The first 10 questions are multiple choice questions, and you must write the letter corresponding to the single best answer on the line provided. Explanations are neither required nor permitted. Each of these questions is worth 2 points. Question 11 (the last question on Part I) and Question 12 (the only question on Part II) are essay questions. Lines are provided for your answers, which must be confined to such lines. Question 11 is worth 25 points and Question 12 is worth 40 points. The highest possible raw score on the exam is 85 points. Your grade will be based on a total possible raw score of 100 points, with up to 15 points based on your in-class work. For each question, unless specified otherwise, assume that the only applicable law is the federal Constitution. This is a closed book exam. You are not permitted to bring any materials into the exam room with you. The total exam time is 3 hours. You have 1 hours to complete each of the two parts of the exam. Write your anonymous number on each page of the exam. WRITE AS LEGIBLY AS POSSIBLE. If you cannot write legibly, PRINT. DO NOT USE ABBREVIATIONS.



QUESTION 12: (40 points) While on routine patrol at 2:00 a.m. in his police cruiser, Officer Glenn Oreo noticed a Toyota Celica proceeding with one of its headlights out. Oreo pulled the Celica over to the side of the road and approached the drivers side window. There being no occupants of the car other than the driver, Oreo asked the driver to produce a drivers license and registration. The driver produced both, and Oreo learned that the drivers name was Kon Jelly. Oreo informed Jelly that his headlight was out and that Oreo would be issuing Jelly a citation. Jelly then reached for a single sheet of paper which appeared to contain excerpts from the Constitution. Jelly proceeded to lecture Oreo on civil liberties. Jelly also told Oreo that he (Jelly) made more money in a week than Oreo would make in his entire life, and that he (Jelly) was associated with some people who could make life very unpleasant for Oreo. Oreo then instructed Jelly to wait in his (Jellys) car while Oreo returned to his police cruiser for a computer check on the license and registration. Oreo radioed the information to his dispatcher, and within five minutes the dispatcher radioed back that, within the hour, the police had received a complaint that Jelly had that very night assaulted his female acquaintance, Tina Beavers. Oreo was told that Beavers was at the police station, had obviously been assaulted, had identified her assailant as Kon Jelly, and had described Jelly as driving a Toyota Celica. Assault is a felony. Oreo then returned to the Celica, ordered Jelly out of the car, told Jelly that he was under arrest, read Jelly the Miranda warnings, and placed Jelly in the police cruiser. Oreo then entered the passenger area of the Celica and searched under the seats. Oreo discovered a large, glassine bag of white powder. Using his field test kit from the cruiser, Oreo determined that the white powder was almost certainly cocaine, and that, based on his experience, the bag contained approximately $100,000 worth of cocaine. Meanwhile, backup officers arrived and transported Jelly to the police station. Beavers was at the station, having arrived there at about 1:00 a.m. She had told the police that she met Jelly at a bar that night at about 10:00 p.m. They had talked awhile, and then, about 11:30 p.m., Jelly suggested they take a ride in his Celica. Beavers agreed, and they drove up to Flatcher Park. At that point, Jelly gratuitously beat Beavers and threw her from the parked car. Beavers was able to flag down a passing car and get a ride to the police station, where she arrived at about 1:00 a.m. She recounted the above events to the police, was able to identify Jelly by name (he had told her his name in the bar), and described Jelly as about 58 tall, 150 pounds, white, clean-shaven, with dark hair, glasses, and wearing dark pants and a pink, puff-sleeved shirt unbuttoned down to his navel. In fact, Jelly was 59 tall, 160 pounds, white, clean-shaven, with dark hair and glasses, and was wearing blue pants and a rose-colored, puff-sleeved shirt buttoned up to the neck when Oreo encountered him.



Jelly was brought to the station at about 2:30 a.m. The police then brought Beavers to the room containing only Jelly and a uniformed officer, and asked Beavers if Jelly was the man who had assaulted her. She responded by positively identifying Jelly as her assailant. Meanwhile, at about 2:45 a.m., Jellys car had been transported to the police station. The Police Department has a policy of inventorying items in impounded vehicles. In this case, suitcases removed from the trunk of the Celica were opened and found to contain several other large glassine bags of cocaine. The officers then also searched under the car and found similar bags of cocaine stuffed in the tailpipe and in various parts of the undercarriage. None of these bags of cocaine was visible without reaching into hidden areas of the car or removing some part of the cars structure. The tires were then also removed and more bags of cocaine were found stuffed in the wheel hubs. Jelly is charged in state court in separate indictments with (a) an assault upon Beavers, and (b) possession with intent to distribute cocaine. You are the prosecutor assigned to these cases. Jelly has filed a motion, regarding both charges jointly, to suppress: (1) Jellys statement to Oreo, which is claimed to have been acquired in violation of

Jellys Fourth, Fifth, Sixth and Fourteenth Amendment rights, (2) Beavers out-of-court identification of Jelly and any in-court identification of Jelly

by Beavers, which are claimed to have been accomplished in violation of Jellys Sixth and Fourteenth Amendment rights, and

(3) all of the cocaine seized from Jellys car (it is conceded that the car is owned by

Jelly), which, it is claimed, violated Jellys Fourth and Fourteenth Amendment rights.

Prepare a memorandum to be submitted to the court in opposition to the motion. Because the motion to suppress is so cursory, you must articulate all possible grounds for the motion and all of your valid responses.



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EXAM NO. ________CREIGHTON UNIVERSITY SCHOOL OF LAWCRIMINAL PROCEDURE FALL SEMESTER EXAMINATION

EXAM NO. _____CREIGHTON UNIVERSITY SCHOOL OF LAWCRIMINAL PROCEDURE A FALL SEMESTER EXAMIN

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CriminalProcedure_F2002