MOOT COURT Artist Ron Leone. Judge Packet

Transcription

1 MOOT COURT Artist Ron Leone Judge Packet

2 MOOT COURT PACKET FOR JUDGES TABLE OF CONTENTS Bench Memo for Utah v. Strieff... A1 A12 Basic Controversy...A1 Facts and Procedural History...A2 Questions Presented...A2 Rationale for Expansion of Question Four...A2 Arguments...A2 USSC Opinion Overview and Lineup...A3 Sample Questions for Students... A4 A5 Excerpts from the Case Opinion... A6 A10 Procedure and Scoring Criteria for Judges...B1 B3 Courtroom Dialog (Fill-in)... C1 C2 Case Materials for Utah v. Strieff...D1 D12 Table of Authorities... D13 iii

3 MOOT COURT Artist Ron Leone The materials for Moot Court Exploring the Appellate Process and the annual Moot Court Competition have been excerpted and adapted from a simulation on the judicial branch called Puttin on the Robes Exploring the Legal Process, which is available through our nonprofit corporation, Center for Economic and Civic Education CESQD (see our website The U.S. Supreme Court case used, Utah v. Strieff is a public record. Materials developed by Carla Young Garrett (except for the Moot Court competition format and rules which were developed by Carla Young Garrett and Ron Leone. Solely for use with their own classes, permission is hereby granted to teachers who purchased these materials, received them as part of training or the competition, to photocopy the handouts, forms, case materials and Student Instructions, and to download and/or print the files from our website. Further reproduction, distribution or resale of these materials is strictly prohibited. No other parts may be reproduced or transmitted in any form or by any means, including without limitation, electronic, mechanical, photocopying, scanning or recording, or by any information or storage or retrieval system without the prior written consent of the author, Carla Young Garrett. While every reasonable precaution has been taken in the preparation of these materials, the author and publisher assume no responsibility for errors or omissions, or for damages resulting from the use of information contained herein. Address questions and/or requests for permissions to: Carla Young Garrett, PO Box 23841, Pleasant Hill, CA 94523, or contact us via ( @cesqd.org) or by phone ( ). Major Supporters A special thanks goes our sponsor the Contra Costa County Bar Association, and to the attorneys and judges who volunteer their time to score the competition, and to Mechanics Bank for their continuing support of the competition (providing money for scholarships and court security) and to our organization. Writing Partner Finally, to my colleague and friend Allen Mooney: Thanks for your time and energy, and for your immeasurable writing, editing and analytical talents. Moot Court Exploring the Appellate Process, Copyright by Carla Young Garrett iv

4 This packet includes: Background information Sample questions Student case materials Competition rules and procedures MOOT COURT PACKET FOR JUDGES 1 BENCH MEMO On pages A4 A5 of this memo, you ll find some sample questions you can ask the student attorneys. Also included here, but NOT in the student materials are some excerpts from the opinion (see pages A6 A11). Students may quote only from their case materials, pages D1 D13. Students may use reasoning gleaned from other sources, but it is a rules violation for them to quote from anything other than the case materials (see Rules 102 (2)). The Basic Controversy Teachers and students were given these basic definitions of the key terms and the following info. The basic issue is: Under what circumstances can evidence, obtained after an illegal stop, be used in court? Four legal concepts come into play here: The exclusionary rule: Prevents the prosecutor from using evidence illegally seized. Fruit of the poisonous tree: Evidence that is discovered as the result of an illegal search and so cannot be used. Search incident to arrest: When a person is arrested, the police can search that person and any place they can reach (e.g. a purse at their feet in a car). This is generally for the safety of an officer so that the person doesn t pull a weapon on the officer. Attenuation of the taint of an illegal stop: Some event happen, so that the connection between the illegal stop and the finding of the evidence is broken or lessened. These concepts are addressed in the majority opinion by Justice Thomas and in the dissent by Justice Sotomayor (see the opinion excerpts on pages 7 to 11 for that discussion). The cases also indicate that applying the exclusionary rule and suppressing evidence is not a personal right, but one designed to deter police from violating the Fourth Amendment s Search and Seizure Clause. Therefore, excluding the evidence must outweigh the social cost (see Rationale, next page). Facts Police were surveilling an alleged drug dealing house. When narcotics officer Douglas Flackrell saw Mr. Strieff coming out of the house, he stopped Mr. Strieff, identified himself as a police officer, and asked Strieff what he was doing there. The Officer also asked to see Mr. Strieff s ID. Running the ID though police computer turned up an arrest warrant for an outstanding parking ticket. The officer arrested Mr. Strieff, searched him and found methamphetamine. 1 The student materials do not tell the outcome of this case. Copyright Carla Young Garrett A1 Bench Memo

5 Procedural History Mr. Strieff was charged with possession of methamphetamine. The trial court denied the motion to suppress the evidence. The court found that the short time between the illegal stop and the search weighed in favor of suppressing the evidence, but that two countervailing considerations made it admissible. First, the court considered the presence of a valid arrest warrant to be an extraordinary intervening circumstance. Second, the court stressed the absence of flagrant misconduct by Officer Fackrell, who was conducting a legitimate investigation of a suspected drug house. Mr. Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court s denial of the suppression motion. The Utah Court of Appeals affirmed that the search and seizure of the drugs was constitutional. The Utah Supreme Court reversed. It held that the evidence was inadmissible because only a voluntary act of a defendant s free will (as in a confession or consent to search) sufficiently breaks the connection between an illegal search and the discovery of evidence. Because Officer Fackrell s discovery of a valid arrest warrant did not fit this description, the court ordered the evidence suppressed. The USSC granted cert and reversed, holding the search constitutional on grounds of attenuation. Questions presented: Under what circumstances can evidence, obtained after an illegal stop, be used in court? 1) Was the drug evidence obtained the fruit of the poisonous tree? 2) Does the search incident to arrest rule apply when the officer s reason for stopping the defendant was illegal? 3) Does an outstanding warrant attenuate the taint of an illegal stop? 4) Does the deterrent effect of excluding the evidence outweigh the social costs? \ Rationale for Expansion of Question Four U.S. Supreme Court justices have created a legal framework in their discussions for and against excluding evidence. The recent interactions between police and the public (stopping and searching motorists or people on the street), and the issues raised in Justice Sotomayor s dissent (page 11) 2 make Question 4 Does the deterrent effect of excluding the evidence outweigh the social costs? highly relevant today. So, in addition to the legal issues, this question asks students to address the issues in a social context as well. We would like you to ask hypothetical questions about stops by police and the societal impact of this issue, but you may not quote anything outside the student case packet (which does not include any statistics or Sotomayor s opinion. Students are asked to argue: Petitioner: While the initial actions of the officer in stopping Mr. Strieff may have been improper, the discovery of an outstanding warrant attenuated the taint. The arrest on that warrant and the search incident to that arrest were legal. Also, the officer s conduct was not so flagrant as to require deterrence to future similar police action. Therefore suppressing the evidence (and letting Mr. Strieff go free) would have a higher cost to society than admitting the evidence (and allowing the police behave in this fashion). The exclusionary rule should not apply. 2 These are not provided to the students. Copyright Carla Young Garrett A2 Bench Memo

6 Respondent: The original stop and request for ID without reasonable suspicion that Mr. Strieff was doing anything wrong means that any evidence obtained as a result of that stop should be suppressed as a violation of Mr. Strieff s Fourth Amendment Rights. The unrelated traffic ticket arrest warrant did not attenuate the taint. Suppression of the evidence is necessary here, because the deterrent effect (in preventing officers from engaging in this type of illegal conduct) outweighs the cost to society of letting a guilty person go free. Therefore, the exclusionary rule should apply. Opinion Overview There is a set of cases (many of them long-standing) that come into play when there is a search and seizure issue (e.g. fruit of the poisonous tree doctrine). Many of these cases were cited by the Court. The majority held that the valid arrest warrant for the unpaid parking ticket attenuated the taint of the admittedly illegal stop. They also held that the officer was only slightly negligent his violation, rather than the stop being part of any systemic or recurrent police misconduct. The dissent held that the stop was an unconstitutional investigatory stop [a stop to detect evidence of wrong-doing, as opposed to a stop based on the officer s observation of possible wrong-doing]. 3 As the stop was unconstitutional under the Fourth Amendment, the evidence seized must be suppressed as the fruit of the poisonous tree. As part of her dissent, Justice Sotomayor 4 wrote an additional section (some of which is on page 11) where she discusses her view of police conduct in general and with the minority community in particular. USSC Opinion Line-up (5-3) 5 THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., KENNEDY, BREYER, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined as to Parts I, II, and III. KAGAN, J., filed a dissenting opinion, in which GINSBURG, J., joined. 3 Text in brackets appears in the Teachers Guide and/or Student Instructions to help them understand legal words and phrases. 4 Justice Sotomayor said, Writing only for myself, and drawing on my professional experiences, I would add that unlawful stops have severe consequences much greater than the inconvenience sug gested by the name. 5 Since Justice Scalia died in February, 2016, the Court has had only 8 members. Copyright Carla Young Garrett A3 Bench Memo

7 Questions for Petitioner State of Utah MOOT COURT PACKET FOR JUDGES QUESTIONS 1. In what way does a traffic ticket attenuate the taint of an illegal stop? 2. Officer Fackrell didn t have any basis to run Mr. Strieff s name through the police computer, so how can his action be justified under the 4th Amendment? 3. In terms of stopping innocent people on the street and checking their ID, where do you draw the line? 4. Don t you agree that if the courts allow officers to stop and question people on a hunch that this make our society less free? Is this acceptable to you? Why/why not? 5. Since everyone (including the Court) agreed that the stop was illegal, shouldn t the evidence have been suppressed under the exclusionary rule? 6. In City of Indianapolis et al. v. Edmond the Court said, because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes [violates] the Fourth Amendment. Wasn t uncovering evidence of ordinary criminal wrongdoing Officer Fackrell s primary purpose as well? 7. Doesn t intentionally stopping someone on the street and asking for their ID, come under the heading of a flagrant violation per the 3rd prong of the test in Brown v. Illinois? Why/why not? 8. The evidence here was clearly tainted by the illegal stop. Isn t the purpose of the exclusionary rule to deter police from engaging in prohibited behavior? If so, then shouldn t the drug evidence in this case have suppressed 9. How do we as a nation, strike a balance between social cost and deterrent effect? Give examples and explain them. Copyright Carla Young Garrett A4 Sample Student Questions

8 MOOT COURT PACKET FOR JUDGES QUESTIONS Questions for Respondent Edward Strieff 1. The 4th Amendment is designed to prevent unreasonable searches and seizures not all of them. Wasn t Officer Fackrell s conduct reasonable in light of his surveillance of the house? Why/why not? 2. Once it was discovered that Mr. Strieff had an outstanding arrest warrant, wasn t it Officer Fackrell s duty to arrest him? 3. Wouldn t you agree that the flagrancy of Officer Fackrell s conduct was low, so that suppressing the evidence would not really serve as a deterrent to this officer or others like him? 4. As an experienced narcotics officer responding to a tip, didn t Officer Fackrell have reasonable suspicion to stop and question Mr. Strieff? 5. Wouldn t there be a huge social cost if all evidence obtained in violation of the 4th Amendment were to be suppressed? Why/why not? 6. Where do you draw the line between reasonable and unreasonable conduct on the part of the police? Give examples. 7. Since the arrest warrant existed prior to, and was not part of the illegal stop, shouldn t it attenuate the taint? Why/why not? 8. Since the Court found the conduct of the police officer in the Herring case (acting on a warrant that had, in fact, been recalled) acceptable, shouldn t Officer Fackrell s conduct (acting on a warrant that was still in effect) be legal? Why/why not? 9. How do we as a nation, strike a balance between social cost and deterrent effect? Give examples and explain them. Copyright Carla Young Garrett A5 Sample Student Questions

9 Excerpts from JUSTICE THOMAS majority opinion: 1 Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The attenuation doctrine evaluates the causal link between the government s unlawful act and the discovery of evidence, which often has nothing to do with a defendant s actions. It remains for us to address whether the discovery of a valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff s person. The three factors articulated in Brown v. Illinois, guide our analysis. First, we look to the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider the presence of intervening circumstances. Third, and particularly significant, we examine the purpose and flagrancy of the official misconduct. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence. The first factor, temporal proximity between the initially unlawful stop and the search, favors suppressing the evidence. Officer Fackrell discovered drug contraband on Strieff s person only minutes after the illegal stop. As the Court explained in Brown, such a short time interval counsels in favor of suppression. In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. In Segura, the Court addressed similar facts to those here and found sufficient intervening circumstances to allow the admission of evidence. There, agents had probable cause to believe that apartment occupants were dealing cocaine. They sought a warrant. In the meantime, they entered the apartment, arrested an occupant, and discovered evidence of drug activity during a limited search for security reasons. The next evening, the Magistrate Judge issued the search warrant. This Court deemed the evidence admissible notwithstanding the illegal search because the information supporting the warrant was wholly unconnected with the arguably illegal entry and was known to the agents well before the initial entry. Segura, of course, applied the independent source doctrine because the unlawful entry did not contribute in any way to discovery of the evidence seized under the warrant. But the Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint. That principle applies here. In this case, the warrant was valid, it predated Officer Fackrell s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. A warrant is a judicial mandate to an officer to conduct a search or make an arrest, 1 To present the most relevant parts of these opinions, I have taken quotes from several parts of them. The free-standing ellipsis indicate a gap between the quotes. Aside from internal quote marks, the case names and page citations (which have been removed for ease of reading), these excerpts are taken directly from the case. Opinion Excerpts Public Domain A6 Opinion Excerpts

10 and the officer has a sworn duty to carry out its provisions. Officer Fackrell s arrest of Strieff thus was a ministerial act [an act for which there is a prescribed procedure, i.e. if there is an arrest warrant, he/she must arrest that person] that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell s safety. Finally, the third factor, the purpose and flagrancy of the official misconduct, also strongly favors the State. The exclusionary rule exists to deter police misconduct. The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence that is, when it is purposeful or flagrant. Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short- term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell s stated purpose was to find out what was going on in the house. Nothing prevented him from approaching Strieff simply to ask. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff s Fourth Amendment rights. While Officer Fackrell s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer s decision to run the warrant check was a negligibly burdensome precaution for officer safety. And Officer Fackrell s actual search of Strieff was a lawful search incident to arrest. Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations. Applying these factors, we hold that the evidence discovered on Strieff s person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff s arrest, that consideration is out-weighed by two factors supporting the State. The outstanding arrest warrant for Strieff s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell s illegal stop reflected flagrantly unlawful police misconduct. Opinion Excerpts Public Domain A7 Opinion Excerpts

11 Excerpts from JUSTICE SOTOMAYOR s dissenting opinion: The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer s violation of your Fourth Amendment rights. Do not be soothed by the opinion s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent. It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don t make a right. When lawless police conduct uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evi dence. For example, if an officer breaks into a home and finds a forged check lying around, that check may not be used to prosecute the homeowner for bank fraud. We would describe the check as fruit of the poi sonous tree. Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence come at by exploitation of that illegality. This exclusionary rule removes an incentive for offic ers to search us without proper justification. It also keeps courts from being made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. When courts admit only lawfully obtained evidence, they encourage those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system. But when courts admit illegally obtained evidence as well, they reward manifest neglect if not an open defiance of the prohibitions of the Constitution. The officer s violation was also calculated to procure evidence. His sole reason for stopping Strieff, he acknowledged, was investigative he wanted to discover whether drug activity was going on in the house Strieff had just exited. The warrant check, in other words, was not an intervening circumstance separating the stop from the search for drugs. It was part and parcel of the officer s illegal expedition for evidence in the hope that something might turn up. Under our precedents, because the officer found Strieff s drugs by exploiting his own constitutional violation, the drugs should be excluded. The majority likewise misses the point when it calls the warrant check here a negligibly burdensome precau tion taken for the officer s safety. Remember, the officer stopped Strieff without suspecting him of committing any crime. By his own account, the officer did not fear Strieff. Moreover, the safety rationale we discussed in Rodriguez, an opinion about highway patrols, is conspicuously absent here. A warrant check on a highway ensures that vehicles on the road are operated safely Opinion Excerpts Public Domain A8 Opinion Excerpts

12 and responsibly. We allow such checks during legal traffic stops because the legitimacy of a person s driver s license has a close connection to road way safety. A warrant check of a pedestrian on a sidewalk, by contrast, is a measure aimed at detecting evidence of ordinary criminal wrong doing. Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else. The majority also posits that the officer could not have exploited his illegal conduct because he did not violate the Fourth Amendment on purpose. Rather, he made good faith mistakes. Never mind that the officer s sole purpose was to fish for evidence. The majority casts his unconstitutional actions as negligent and therefore incapable of being deterred by the exclusionary rule. But the Fourth Amendment does not tolerate an officer s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Indeed, they are perhaps the most in need of the education, whether by the judge s opinion, the prosecutor s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an incentive to err on the side of constitutional behavior. Most striking about the Court s opinion is its insistence that the event here was isolated, with no indication that this unlawful stop was part of any systemic or recurrent police misconduct. Respectfully, nothing about this case is isolated. Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. When a person on probation drinks alcohol or breaks curfew, a court will issue a warrant. The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. Even these sources may not track the staggering numbers of warrants, drawers and drawers full, that many cities issue for traffic violations and ordinance infractions. The Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them. Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes [counties] for such infractions as unpaid tickets. In the St. Louis metropolitan area, officers routinely stop people on the street, at bus stops, or even in court for no reason other than an officer s desire to check whether the subject had a municipal arrest warrant pending. In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them. The Justice Department analyzed these warrant-checked stops and reported that approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion. Opinion Excerpts Public Domain A9 Opinion Excerpts

13 Writing only for myself, and drawing on my professional experiences, I would add that unlawful stops have severe consequences much greater than the inconvenience sug gested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are isolated. They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. Opinion Excerpts Public Domain A10 Opinion Excerpts

14 MOOT COURT PROCEDURES & SCORING CRITERIA FOR JUDGES A) OVERVIEW About the case: Utah v. Strieff is a 2015 U.S. Supreme Court case. We ve kept some of the justices actual language, but have excerpted it down to 12 pages and the following issue: Issue: Under what circumstances can evidence, obtained after an illegal stop, be used in court? Venue: So that the case can be argued in a three-judge circuit court setting, we have set the case in the fictitious Twentieth Circuit Court of Appeal and made it vague as to which courts have heard the case. Also, the case materials do not indicate which side won. Attorney appearances: The competition is designed to be flexible. Each side can have one or two attorneys. If there are two attorneys, they can share both the main argument (argument-in-chief) and the rebuttal, or one can do the main argument and the other can do the rebuttal. Please keep in mind that students received a wide range of preparation assistance. (Some students had help from their Mock Trial coach and some got teacher or parent help and others had no assistance at all.) Time Limits: THE ENTIRE ROUND IS ONLY 40 MINUTES. The Clerk/Timer will give you a five minutes left indicator. Please stop when the Clerk/Timer says that the 40 minutes are up. Each side has six minutes TOTAL for both their argument-in-chief and their rebuttal. This time can be divided up at the discretion of the attorneys. You interrupt to ask clarifying questions. The time spent answering your questions is not included in the six-minute time limit. Any time remaining after each side s argument-in-chief is automatically available for rebuttal. Please keep the time limits in mind when asking your questions to enable all the attorneys to demonstrate their abilities. B) ORDER OF EVENTS Feel free to use the Appellate Court Dialog Sample (pages C1 and C2) as a guide. 1. When the Clerk/Timer says, All rise, the judges file in and take their seats (the PJ sits in the middle). The Clerk/Timer then asks everyone to be seated and calls the case, Calling the case of Utah v. Strieff. 2. The presiding judge asks the attorneys to state their names and appearances for the record. 3. The Clerk/Timer and the unofficial timer introduce themselves. The Clerk/Timer demonstrates the timing signals (3-, 2-, 1-minute, 30 seconds and TIME). 4. The PJ asks the attorney(s) for the Plaintiff to summarize their arguments. 5. The PJ asks the attorney(s) for the Defendant to summarize their arguments. 6. One of the attorneys can ask the Clerk/Timer for a time check for both sides. 7. The PJ tells the attorney(s) for the Plaintiff that they may use all their remaining time for rebuttal and reminds them that rebuttal is used to counter their opponents arguments and cannot be used to raise new issues. 8. The PJ tells the attorney(s) for the Defendant that they may use all their remaining time for rebuttal and reminds them that rebuttal is used to counter their opponents arguments and cannot be used to raise new issues. Copyright Carla Young Garrett B1 Procedures and Scoring

15 9. Before giving any comments, the PJ collects all score sheets, puts them in the envelop provided, seals it, then gives the envelop to the official clerk/timer who takes it to the Moot Court staff for scoring. C) INSTRUCTIONS FOR JUDGES TO READ TO PARTICIPANTS Both sides have six minutes to present their arguments. Plaintiff will begin. We will interrupt to ask clarifying questions. Time spent answering our questions is not included in the six-minute time limit. At the conclusion of both arguments-in-chief, each side will have rebuttal time (any time you have remaining). Please remember that the rebuttal time is to be used to counter your opponent s arguments. It cannot be used to raise new issues. You must complete your presentations within the specified time limits. The Clerk/Timer will signal you as your time begins to run out. When your total time runs out, you will be stopped, even if you have not finished. Before we begin, we would like to make reference to the Code of Ethics of the competition. We understand you have all signed written agreements to follow this code. Finally, once we start, contact with spectators is prohibited and is subject to a penalty. If there are no questions, we ll proceed. D) SCORING INSTRUCTIONS FOR JUDGES 1. Please fill in the appropriate boxes on the score sheet. 2. When filling out score sheets, make your decisions independently. Please don t confer. 3. To avoid ties, the PJ needs to indicate which team he/she feels should be the overall winner. E) EVALUATION CRITERIA You will be scoring students in four areas: 1) The quality of their main arguments; 2) How well they responded to questions during their main argument; 3) The quality of the rebuttal; 4) How well they respond to questions during their rebuttal argument. Students are to be rated on the eleven point scale (no fractions are allowed) for each category. On a 0 to 10 scale (with 10 being the best) rate the student lawyers on the following criteria. The lawyer: Covered the issues/questions presented (see page B1 of this packet) Had a well-developed and well-reasoned argument Presented the argument in a well organized and easy to follow manner Cited appropriate authorities Showed solid understanding of the legal reasoning behind the arguments Responded well to questions, Used rebuttal to effectively respond to and counter what other side actually said Used judges questions to show weaknesses in other side s argument Demonstrated ability to weave answers into prepared argument Showed poise, passion and persuasiveness Was audible, understandable and did not speak too fast or slow Had good courtroom demeanor Used time effectively Copyright Carla Young Garrett B2 Procedures and Scoring

16 F) SCORING CRITERIA GUIDELINES FOR 0-10 SCORING METHOD The following are general guidelines to be applied to each category on the score sheet. These guidelines provide a framework on which to base your judgment. The system is designed to give you flexibility. For example, if you think both arguments-in-chief were excellent, but one attorney was better than the other, then you can give one a 9 and the other an 8. 10: FLAWLESS 9 8: EXCELLENT (Exceptional performance) Highly developed understanding of task Superior ability to think on his/her feet Superior ability to answer questions Resourceful, original and innovative approaches Presentation was extraordinary and not overly rehearsed or memorized 7 8: ABOVE AVERAGE (Good solid performance) Well developed understanding of task Good ability to think on his/her feet Good ability to answer questions Well prepared Very good presentation 5 6: AVERAGE (Meets required standards) Basic understanding of task Ability to think on his/her feet Ability to answer questions Adequate preparation Acceptable but uninspired performance 4: BELOW AVERAGE (Weak performance) Inadequate understanding of task Limited ability to think on his/her feet Limited ability to answer questions Inadequate preparation Awkward presentation 3: FAR BELOW AVERAGE (Unacceptable performance) Poor understanding of task No ability to think on his/her feet No ability to answer questions Shows lack of preparation Disorganized presentation 0: PENALTY (Nonperformance of required part; rules violations) Failure to conduct rebuttal (no time or no argument ready) Can use this for rule violations Copyright Carla Young Garrett B3 Procedures and Scoring

17 Fill-in Courtroom Dialog for Appellate Argument The room is arranged as a courtroom (see Appellate Court Diagram, Appendix D). The lawyers are seated at counsel table (appellant at the right, respondent on the left). All are present except the three judges. The Clerk/Timer (Cl/Timer) stand and speaks. Cl/Timer All rise. The Court of Appeal for the Twentieth Circuit is now in session. The Honorable presiding. All three judges enter the courtroom and sit down. The PJ (presiding judge) raps the gavel once. Cl/Timer Please be seated and come to order. Calling the case of. PJ Counsel, please state your names and appearances for the record. Lawyers stand. (Lawyers ALWAYS stand when addressing the judges.) Each in turn says: Attys Good morning your honors,, representing the Petitioner in this action. I will be delivering the. Good morning your honors,, representing the Petitioner in this action. I will be delivering the Good morning your honors,, representing the Respondent in this action. I will be delivering the Good morning your honors,, representing the Respondent in this action. I will be delivering the Good morning your honors,, I ll be your clerk and official timer this morning. Good morning your honors,, I m the unofficial timer. PJ Before we begin, I m going to read some preliminary instructions. PJ reads instructions or asks to skip reading them. Then the PJ addresses the P Attys PJ, please proceed with your argument. P Atty Yes, your honor One of the P Attys stands and delivers his/her argument-in-chief (main argument). Then, if appropriate, the other P Atty stands and delivers his/her argument-in-chief. Personnel are: (PJ) Presiding Judge (P Atty) P Petitioner s attorney; (R Atty) Respondent s attorney; (Attys) All or some of the attorneys Copyright Carla Young Garrett C1 Fill-in Appellate Courtroom Dialog

18 After the P Atty(s) have delivered their arguments-in-chief, then the PJ asks the R Atty(s) to give their arguments. PJ, please proceed with your argument. P Atty Yes, your honor. The R Atty(s) stand and deliver their arguments-in-chief. Then the PJ addresses P Atty(s): PJ, you may proceed with rebuttal. Remember that this time may only be used to rebut opposing counsel s argument and not to raise new issues. When P Atty(s) have finished rebuttal, (or time is called) the PJ addresses R Atty: PJ, you may proceed with rebuttal. When R Atty(s) have finished rebuttal (or time is called) the PJ addresses everyone: PJ This concludes the oral argument in Thank you counsel. Before we make any comments, would my fellow justices please put their score sheets in this envelope? Now seal the envelope and hand it to the official timer/clerk. Would the clerk please take this envelope with the score sheets and bring it to the Moot Court staff? Cl/Timer All rise. After the judges are off the bench: Cl/Timer You may be seated. Copyright Carla Young Garrett C2 Fill-in Appellate Courtroom Dialog

19 Utah v. Strieff Notes Case citation: Utah v. Strieff The case No Argued February 22, 2016 Decided June 20, The student instructions are absent from these materials, but for ease of reference, the page and line numbering is the same as in the student packets, hence the extra space below. You will also find some words in [ ]. These are definitions to help the students understand words that they might not be familiar with. To keep the page and line numbering consistent, they ve been left in here. Parties Petitioner: State of Utah Respondent: Richard Strieff (the Defendant in the case) Background Information The Fourth Amendment s rule applies to unreasonable searches and seizures. The Court has articulated [spelled out] many rules and exceptions to explain what is or is not reasonable. So what happens when the police obtain evidence illegally? As you will see from reading the cases in this packet, the Court has developed a variety of approaches. First, the Court created what is known as the exclusionary rule. 1 It means that illegally obtained evidence cannot be used in court. This is a pretty harsh outcome for the prosecution, as it generally requires dismissal of the case because there is no evidence. The Court also likes to come up with descriptive names for their rules or doctrines, e.g., the phrase fruit of the poisonous tree, refers to any evidence seized as a result of an illegal search. In other words, the evidence [fruit] is poisoned [or tainted] by the illegal search. 2 On the flip side, if there s an intervening event the taint becomes attenuated [something that happens to lessen the connection between the illegal search and the evidence obtained from it.] As a result, it is no longer tainted enough to require the court to exclude it from the trial, so it can be used against the defendant. One additional rule for use of evidence comes into play in this case: Search incident to arrest [once someone has been legally arrested they (and sometimes their car or purse, for example) can be searched.] 1 The exclusionary rule was first adopted in Weeks v. United States in First articulated in 1939 by a well known justice named Felix Frankfurter in Nardone et al. v. United States. Moot Court Case Packet 2016 UvS-1 Utah v. Strieff

20 Legal/Procedural History Case Facts and Outcome This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police s drug-tip line to report narcotics activity at a particular residence. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs. One of those visitors was respondent [defendant in the trial] Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store s parking lot, Officer Fackrell detained Strieff, identified himself as a police officer, and asked Strieff what he was doing at the residence. As part of the stop, Officer Fackrell requested to see Strieff s identification. Strieff produced his Utah ID card. Officer Fackrell relayed Strieff s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for an unpaid parking ticket. Officer Fackrell then arrested Strieff pursuant to that warrant. When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. The lower court found the search unconstitutional. Arguments Petitioner: While the initial actions of the officer in stopping Mr. Strieff may have been improper, the discovery of an outstanding warrant attenuated the taint. The arrest on that warrant and the search incident to that arrest were legal. Also, the officer s conduct was not so flagrant as to require deterrence to future similar police action. Therefore suppressing the evidence (and letting Mr. Strieff go free) would have a higher cost to society than admitting the evidence (and allowing the police behave in this fashion). The exclusionary rule should not apply. Respondent: The original stop and request for ID without reasonable suspicion that Mr. Strieff was doing anything wrong means that any evidence obtained as a result of that stop should be suppressed as a violation of Mr. Strieff s Fourth Amendment Rights. The unrelated traffic ticket arrest warrant did not attenuate the taint. Suppression of the evidence is necessary here, because the deterrent effect (in preventing officers from engaging in this type of illegal conduct) outweighs the cost to society of letting a guilty person go free. Therefore, the exclusionary rule should apply. Moot Court Case Packet 2016 UvS-2 Utah v. Strieff

21 Questions presented: Under what circumstances can evidence, obtained after an illegal stop, be used in court? 1) Was the drug evidence obtained the fruit of the poisonous tree? 2) Does the search incident to arrest rule apply when the officer s reason for stopping the defendant was illegal? 3) Does an outstanding warrant attenuate the taint of an illegal stop? 4) Does the deterrent effect of excluding the evidence outweigh the social costs? Legal Authorities Constitution Bill of Rights, Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Case Law Mapp v Ohio, 367 U.S. 643 (1961) Facts: Police officers in a Cleveland, Ohio suburb received information that some illegal betting equipment might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left and one remained. Three hours later, the two returned with several other officers. Brandishing a piece of paper they said was a warrant, they broke in the door. Mapp asked to see the warrant and took it from an officer, putting it in her dress. The officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for being belligerent. They did not find the gambling equipment, but found pornographic material in a suitcase next to her bed. She was arrested, prosecuted, and found guilty of possession of pornographic material. Questions: Was the search constitutional and could the evidence obtained from it, be used against the defendant? Quotes/Holding: No to both. Evidence obtained by searches and seizures in violation of the U.S. Constitution is inadmissible in a criminal trial. The Court said: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the Moot Court Case Packet 2016 UvS-3 Utah v. Strieff

22 courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. Illegally seized evidence must be excluded from trial [not allowed to come into evidence]. This principle is called the exclusionary rule 4 Wong Sun v. U.S., 371 U.S. 471(1963) Facts: The facts in this case are rather convoluted. About 2 a. m. on the morning of June 4, 1959, federal narcotics agents in San Francisco, after having had one Hom Way under surveillance for six weeks, arrested him and found heroin in his possession. After his arrest, Hom Way stated that he had bought an ounce of heroin the night before from one known to him only as Blackie Toy, proprietor of a laundry on Leavenworth Street. The agents went to the address on Leavenworth and found a sign Oye s Laundry and found one James Wah Toy. Even though there was nothing in the record identifying James Wah Toy as Blackie Toy, the officers went into the house/laundry. As Toy reached into a nightstand drawer, Agent Alton Wong drew his pistol, pulled Toy s hand out of the drawer, placed him under arrest and handcuffed him. There was nothing in the drawer and a search of the premises uncovered no narcotics. One of the agents said to Toy (Hom Way) says he got narcotics from you. Toy responded, No. I haven t been selling any narcotics at all. However, I do know somebody who has. When asked who that was, Toy said, I only know him as Johnny. I don t know his last name, but gave an address on Eleventh Ave. Agents went there, found one Johnny Yee who had heroin and said he got it from someone named Sea Dog. Toy was questioned as to the identity of Sea Dog and said that Sea Dog was Wong Sun. Some agents, including Agent Wong, took Toy to Wong Sun s neighborhood where Toy pointed out a multifamily dwelling where he said Wong Sun lived. Agent Wong rang a downstairs doorbell and a buzzer sounded, opening the door. One of the officers went into the back room and brought petitioner Wong Sun from the bedroom in handcuffs. A thorough search of the apartment followed, but no narcotics were discovered. Wong Sun was arrested and later made some statements to the police which, in addition to the heroin found previously, were used to convict both Toy and Wong Sun. Question: Was the arrest of Wong Sun the fruit of the poisonous tree? 4 As the Fourth Amendment initially only applied to the federal government, the exclusionary rule only applied in federal court, unless states adopted their own rule. Mapp applied the Fourth Amendment to the states through the Due Process Clause of the Fourteenth Amendment. Moot Court Case Packet 2016 UvS-4 Utah v. Strieff