THE LAW PROFESSOR CRIMINAL PROCEDURE ESSAY SERIES ESSAY QUESTION

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1 THE LAW PROFESSOR CRIMINAL PROCEDURE ESSAY SERIES ESSAY QUESTION #1 Officer Jones was notified by Oscar, a police informant, that Jeremy had robbed the jewelry store two hours earlier. Jeremy was reported to be wearing a bright purple blazer, with shocking pink pants, and was said to be 6 foot five, 250 pounds. Within an hour after notification by Oscar about Jeremy, Officer Jones spotted a man of the description above, approximately one mile from the jewelry store, and carrying a large cloth bag, which appeared to be heavy. Officer Jones approached Jeremy, whereupon Jeremy took off running down a side alley after spotting Officer Jones. Officer Jones took off running after Jeremy, and spotted Jeremy running into a nearby house. Officer Jones continued into the house, without first obtaining a search warrant. Officer Jones then put Jeremy under arrest, and read Jeremy his Miranda rights. At that point, officer Jones checked inside Jeremy s purple blazer, and found a revolver, which was confiscated. Before they left the house, Officer Jones also opened and checked the contents of closets along the way to the front door. Officer Jones found a bag of jewelry in one of the closets, and confiscated the bag. Discuss.

2 SEARCH OR SEZURE. MODEL ANSWER 4TH AMENDMENT. The 4th Amendment to the Constitution of the United States of America, states that 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. If a search or seizure takes place in violation of 4th Amendment rights, a defendant may be able to have the search results excluded from trial under the exclusionary rule. REASONABLE EXPECTATION OF PRIVACY. A person s 4th Amendment rights are implicated where a reasonably expectation of privacy exists. This requirement is satisfied only when the defendant is personally intruded upon by government officials in defendant's person, house, papers and personal possessions. Here, Jeremy was arrested and his person was searched, and he would have a reasonable expectation of privacy against such arrest and personal search. If the home was Jeremy's home, he would have had a reasonable expectation of privacy against the search of the closets. GOVERNMENTAL OFFICIAL. We are told that the arresting person is Officer Jones, thereby the action that was effectuated to arrest and search, was undertaken by a governmental official,

3 and will be subject to review via both the 4th Amendment and the exclusionary rule. BRIEF DETENTION. Where police have a founded reasonable suspicion that criminal activity is afoot, they may stop and individual and ask them questions. The detention must be brief, and if the individual gives a suitable explanation, they must be allowed to go on their way. Officer Jones approached Jeremy, apparently to at least ask Jeremy some questions regarding Jeremy's recent whereabouts. After all, Jeremy fit the description of a person six foot five inches tall, 250 pounds, wearing a bright purple blazer and shocking pink pants. Additionally, Jeremy was within easy walking distance of the jewelry store which had been robbed two hours prior to Officer Jones' approach of Jeremy, and Jeremy was carrying a cloth bag which may easily have contained jewelry. If is true that we do not know the reliability of the police informant. However, the above description is suitably unique, such that Officer Jones had a founded suspicion that criminal activity was afoot. However, Jeremy took off running after seeing Officer Jones approach Jeremy, and Officer Jones was unable to effectuate a brief detention. ENTERING HOME. Police may normally not enter a home with a search warrant, or prior consent of someone with the authority to consent to a home search. Here, Officer Jones

4 entered the house that Jeremy ran into, without a search warrant or the consent of an individual with authority to consent to a search. Officer Jones' entry into the house will be deemed as unconstitutional unless he can forward a valid exception to his entry. EXCEPTIONS. EXIGENT CIRCUMSTANCES. Police may enter a private dwelling under exigent circumstances when they have reasonable grounds to believe there is immediate danger to themselves or others, in order to effectuate an arrest. Jeremy was carrying a large cloth bag, which appeared to be heavy. If he did in fact rob the jewelry store, there was a real possibility that Jeremy would hide or fence the jewels if Officer Jones did not pursue and arrest Jeremy. Officer Jones thus had a valid reason under exigent circumstances to enter the house to effectuate an arrest. HOT PURSUIT. Police may enter a private dwelling when police are pursuing a dangerous suspect, in order to apprehend the suspect and prevent the destruction of evidence. Here, Officer Jones entered the house and immediately arrested Jeremy. We are told that the jewelry store was robbed. Robbery is a felony through the use of force or threat of force in the commission of taking the personal property of another. Therefore, defendant could well have been armed, and dangerous. Officer Jones first tried to approach Jeremy, but Jeremy evaded questioning. Officer Jones, in such a situation, was in hot pursuit of a fleeing felon, and Officer Jones could enter the house to effectuate an arrest without an arrest warrant.

5 ARREST. An arrest warrant is often necessary before a police officer may effectuate an arrest. However, when arresting someone in a public place, probable cause is needed. PROBABLE CAUSE. Probable cause to arrest where facts and circumstances exist that would induce a reasonable person to conclude that it is more likely than not that a suspect has committed a crime. Police and private citizens may make an arrest for a felony that occurs in their presence, and a police officer may make an arrest for a felony not committed in their presence when there are reasonable grounds to believe the person has committed a felony, but such an arrest by a citizen is only valid if the crime was in fact committed. Police and citizens may make arrests for misdemeanors where the crime is committed in their presence and there is a breach of the peace. Here, as stated above, Jeremy met the parameters of the description of the jewelry store manager as given by the informant. Further, Jeremy ran when approached by Officer Jones. Under the totality of the circumstances, a reasonable person would conclude that Jeremy had been involved in some sort of criminal activity. Officer Jones thus had reasonable grounds to believe that Jeremy had committed a felony, and his arrest of Jeremy is proper. SEARCH INCIDENT TO AN ARREST / WINGSPAN. THE REVOLVER. Searches incident to an arrest, otherwise known as wingspan searches, may be carried out where an officer believes that the

6 arrested person may destroy evidence, or use a weapon against the officer. Any areas within the wingspan reach of defendant may be searched for weapons or evidence of a crime, along with a search of the room in which the arrest is made. Here, after Jeremy was arrested, Officer Jones checked inside of Jeremy's blazer and found a revolver, which was confiscated. Jeremy could easily have used the gun against Officer Jones, and thus Officer Jones did not violate the 4th Amendment Rights of Jeremy in conducting this search. BAG OF JEWELRY IN THE CLOSET. Before leaving the house, Officer Jones opened and checked the contents of closets along the way to the front door, and he confiscated the bag. PLAIN VIEW DOCTRINE. When an officer is in a place they have a legal right to be in, and they view something that is clearly contraband, they may confiscate the material under the plain view doctrine. Officer Jones had a legal right to be in the house under exigent circumstances / hot pursuit in order to effectuate an arrest of Jeremy. Additionally, if Officer Jones saw a bag that appeared to be the same type of bag that Jeremy was carrying when Officer Jones first spotted Jeremy, while Officer Jones was walking to the front door, Officer Jones would have been able to confiscate the bag. However, here Officer Jones opened the closet doors, and the bag therefore was not in plain view as he walked to the front door. Therefore, Officer Jones would need to show that he had a valid reason to open the closet doors, before the plain view doctrine would become effective, here.

7 PROTECTIVE SWEEP OF HOME. Police officers may perform a protective sweep of the premises, where there is a reasonable suspicion that other armed individuals may be hiding in the house. Robberies often involve people who fence the contraband. Jeremy had newly robbed jewels, and it is very possible that others may have been in the house. Jeremy was armed, and others may have been armed also. Such others could have been hiding in a closet. Therefore, when Officer Jones opened the closets, he had a valid reason to open the closets as a protective sweep of the home. Officer Jones thus had a legal right to be in the position to plainly view the bag of jewelry, when he opened a closet door and spotted the jewelry. FIFTH AMENDMENT RIGHT AGAINST SELF- INCRIMINATION. The 5th Amendment to the Constitution protects the right of a defendant from being a witness against themselves. Here, Officer Jones correctly read Miranda rights to Jeremy. Jeremy did not make any comments, and thus a discussion of the 5th Amendment Right against self-incrimination needs no further discussion, here. EXCLUSIONARY RULE. A defendant who has been subject to an illegal search or coerced confession, has the right to have this evidence excluded from prosecution. A defendant have standing to assert their rights under the exclusionary rule, and must show that their rights were violated, that they had a possessory interest in the premises, and that there was governmental conduct.

8 Jeremy clearly has standing to assert that the arrest was unconstitutional, and that the seizure of the revolver was unconstitutional. Less clear is his standing to assert that the seizure of the bag was unconstitutional, because it is unclear whether Jeremy owned the house. As regards the arrest and the seizure of the revolver, Officer Jones had valid reasons to enter the house under exigent circumstances and hot pursuit, and a valid reason to arrest under probable cause. Likewise, Officer Jones had a valid reason to perform a wingspan search incident to the arrest of Jeremy, and thus the revolver was legally seized. If Jeremy is the home owner, he may assert that the seizure of the bag was unconstitutional. However, Officer Jones performed a valid protective sweep of the home, and found the bag under plain view while performing the protective sweep. Jeremy will not be able to exclude any evidence under the exclusionary rule.