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Searching Questions Deft saw Oscar, a uniformed police officer, attempting to arrest Friend, who was resisting arrest. Believing that Oscar was arresting Friend unlawfully, Deft struck Oscar in an effort to aid Friend. Both Friend and Deft fled. The next day, as a result of Oscar’s precise description of Deft, Paula, another police officer, found Deft on the street, arrested him for assault and battery and searched him, finding cocaine in his pocket. After Paula gave proper Miranda warnings, Deft said he wanted to talk to a lawyer before answering any questions. Paula did not interrogate him. However, before an attorney could be appointed to represent Deft, Paula placed him in a lineup. Oscar identified Deft as his assailant. Deft was then charged with assault and battery of a police officer and possession of cocaine. Thereafter, he was arraigned. The next day Paula gave Deft, who was without counsel, proper Miranda warnings, obtained a waiver, and interrogated him. He admitted striking Oscar. How should the judge rule on the following motions made by Deft at trial: 1. To suppress the cocaine? Discuss. 2. To suppress Oscar’s identification during the lineup? Discuss. 3. To suppress Deft’s admission that he struck Oscar? Discuss. 4. For an instruction to the jury that Deft’s assault was justified on the basis of defense of another? Discuss.
Answer 6 This answer provided by BarGraders, 866-517-3926, www.bargraders.com 1. Suppression of the Cocaine Standing In order to bring an action under the Fourth Amendment to challenge a search and seizure, the defendant must have standing. A person has standing to challenge a search and seizure when he has a reasonable expectation of privacy in the area searched or a substantial interest in the item seized. Here, Deft has a reasonable expectation of privacy because a pocket in clothing he was wearing would be private. Thus, Deft has standing to challenge the warrantless search of his pocket and seizure of any items from his pocket. State Action Additionally, in order for a defendant to challenge a search and seizure under the Fourth Amendment, the search and seizure in question must have been performed by a state actor. Here, Paula, a police officer, conducted the search of Deft’s pocket and seized the cocaine. For the purposes of the Fourth Amendment, police officers are state actors. Thus, Paula’s arrest and search of Deft was a state action and is subject to the limitations of the Fourth Amendment. Fourth Amendment/ Search and Seizure The Fourth Amendment, applicable to the states through the 14th Amendment, prohibits warrantless searches and seizures by state actors unless an exception applies. Here, Paula arrested Deft. She then conducted a warrantless search of his pocket and seized the cocaine she found in it. Thus, unless an exception applies, the judge must suppress the cocaine found as a result of a warrantless search and seizure. Warrantless Arrest In order for a police officer to arrest someone, she must have an arrest warrant. If the officer does not have a warrant, the arrest must fall under an exception to the rule, otherwise it is improper and any evidence obtained as a result of the improper arrest will be inadmissible against the defendant. An exception to the warrant requirement for arrests exists where there is probable cause. Probable cause exists if a reasonable person would deduce that a crime occurred and that the subject of the arrest committed it. Probable cause is established where there are facts sufficient for a reasonable person to believe the suspect has committed a crime. Here, Paula did not have a warrant for Deft’s arrest when she encountered him. She did, however, appear to have probable cause based on Oscar’s precise description of Deft and Oscar’s account linking Deft to the assault and battery. Thus, despite the lack of a warrant supporting Deft’s arrest, it was likely lawful based on probable cause. Search Incident to Lawful Arrest Warrantless searches are permissible where a police officer’s search of a person is incident to a lawful arrest. A search incident to a lawful arrest permits an officer to search the person and areas within reach that may contain weapons or contraband. Such a search may include a pat-down to check for weapons or other instrumentalities of crime. If the officer believes she feels something that might be a weapon, or is obviously contraband, then the officer may reach inside the suspect’s clothing. An officer may search concealed spaces where she has reason to believe, through the “plain feel” of a suspect’s pocket, that a weapon or contraband may be found, and may seize any such weapon or contraband. An officer may search pockets of an arrestee as part of a standard operating procedure to inventory item prior to placing the arrestee in custody. Here, Paula lawfully arrested Deft. Upon arresting him, Paula conducted a search, which included a search of his pocket. It is likely that Paula conducted a pat-down search of Deft to ensure he wasn’t armed, which led to the search of his pocket. The facts do not detail what led Paula to search the inside of Deft’s pocket. If the “plain feel” of the cocaine through his pocket led her to reasonably believe it was contraband, then the search would be lawful. However, if she manipulated the object to make a preliminary determination as to whether or not it was contraband, such an action would violate the Fourth Amendment. Thus, to the extent Paula’s search of Deft was incident to his lawful arrest, Deft’s motion to suppress the cocaine should be denied if it was reasonable for Paula to search his pocket. Exclusionary Rule and Fruit of the Poisonous Tree The Exclusionary Rule provides that evidence obtained as a result of any violation of the Constitution must be excluded from consideration by the court. The Exclusionary Rule protects individuals from unreasonable searches and seizures and compelled self-incrimination. As a corollary, the Fruit of the Poisonous Tree doctrine holds that any evidence discovered indirectly from an illegal search or seizure is inadmissible. Under the Fruit of the Poisonous Tree doctrine, any evidence seized stemming from a prior unlawful action will be inadmissible unless the taint can be purged through inevitable discovery, independent source or another similar doctrine. Here, the cocaine seized from Deft was a result of a lawful search incident to his lawful arrest. As such, it would not be considered to be poisoned fruit nor subject to the Exclusionary Rule. Thus, the judge should dismiss Deft’s motion to suppress the cocaine. 2. Suppression of Oscar’s Identification During the Lineup Fifth Amendment Right to Counsel Under the Fifth Amendment, a suspect in custody must be read Miranda warnings alerting him to his right to remain silent and his right to an attorney before being interrogated. This right arises from the Fifth Amendment’s protection against self-incrimination. A custodial interrogation occurs where a person reasonably believes he is not free to leave the presence of an officer and the officer interrogates him. Interrogation is any conduct or communication of an officer, made while a person is under custody, which the officer reasonably knows will elicit a response. Further, the Fifth Amendment provides that a suspect has a right to counsel during pre-charge interrogation. However, the right to counsel under the Fifth Amendment does not apply to pre-charge lineups, which are not considered interrogatory in nature as they are unlikely to elicit a verbal response from the suspect. Here, Paula gave proper Miranda warnings to Deft. She did not interrogate him once he invoked his right to remain silent. Deft was then placed in a pre-charge lineup and was subsequently identified by Oscar as his assailant. To the extent Paula merely placed Deft in the pre-charge lineup, his right to remain silent until he spoke with counsel was not violated. Thus, Deft’s motion to suppress Oscar’s identification should be denied because his Fifth Amendment right to remain silent was not violated. Sixth Amendment Right to Counsel Under the Sixth Amendment, an accused has a right to counsel at every critical stage of criminal proceedings, including post-charge lineups. This right attaches at or after the time adverse judicial proceedings have been initiated against a defendant. Such proceedings include a formal charge, preliminary hearing, indictment, arraignment or information. Here, the lineup occurred before Deft was charged. At that time, Deft’s Sixth Amendment right to counsel had not yet attached. Thus, the judge should deny Deft’s motion to suppress Oscar’s identification because Deft’s Sixth Amendment right to counsel was not violated. Due Process A lineup will violate the Due Process requirement of the U.S. Constitution, applicable to the States by virtue of the 14th Amendment, if it is unduly suggestive or prejudicial. Here, the facts indicate only that Deft was placed in a lineup. Absent any specific facts suggesting prejudice, Deft’s mere participation in a lineup would not be unduly suggestive or prejudicial. Thus, Deft’s Due Process rights were not violated and the judge should deny his motion. 3. Suppression of Deft’s Admission Fifth Amendment: Miranda The Fifth Amendment, applicable to the states through the 14th Amendment, protects individuals from compelled self-incrimination and provides a right to counsel during custodial interrogations. To protect these constitutional rights, a proper Miranda warning must be given by police to a defendant before any custodial interrogation occurs. Once a defendant invokes his right to counsel, all custodial interrogations must cease until defendant’s counsel is present. Police must not reinstitute interrogation unless the defendant initiates the questioning. Here, Deft invoked his right to counsel after Paula gave him proper Miranda warnings. On the next day, Paula reinitiated contact with Deft by rereading Miranda to him and began to question him without the presence of counsel. There is no indication that this questioning was initiated by Deft. Thus, Deft’s admission should be suppressed. Sixth Amendment Right to Counsel The Sixth Amendment right to counsel prohibits custodial interrogation of the defendant outside the presence of counsel after he has been charged, unless the defendant has waived his right to counsel. The Sixth Amendment right to counsel is offense specific. Although police may question a defendant about crimes that are factually related but distinct, police may not question the suspect regarding crimes that are considered the same offense. Here, when Paula arrested Deft, he stated he wanted to talk to a lawyer before answering any questions. Deft’s statement indicated he intended to exercise his right to counsel at the time of his arrest. His Sixth Amendment right to counsel had attached when he was arraigned. However, without the presence of his counsel and without initiation of questioning by Deft, Paula approached Deft and questioned him about one of the crimes for which he was charged. Thus, Deft’s Sixth Amendment right to counsel was violated, and his admission should be suppressed unless validly waived. Ineffective Waiver An individual may waive his Miranda rights. Such a waiver must be knowing, voluntary and intelligent. In order to be valid, the defendant need not have considered every consequence of the decision to waive his rights. However, once an individual has been arraigned, Miranda rights are replaced by the Sixth Amendment right to counsel. Here, though Deft invoked his rights under Miranda on the day of his arrest, Paula reinitiated contact with him on the next day and obtained a purported waiver from Deft after giving Miranda warnings to him for a second time. When Paula approached Deft the second time, he had already been arraigned. As such, his Sixth Amendment right to counsel had attached and he could not be questioned about the specific crimes for which he was charged without the presence of his attorney. Deft did not initiate contact with Paula, therefore he had not waived his right to counsel and she could not question him without his attorney present. As such, any purported waiver of his right to remain silent obtained without the presence of counsel would be invalid. Thus, the admission must be suppressed. Exclusionary Rule As mentioned above, the Exclusionary Rule precludes the consideration of evidence obtained as a result of a violation of the U.S. Constitution. This prohibition serves to protect individuals from unreasonable searches and seizures and compelled self-incrimination. The Exclusionary Rule applies to criminal proceedings, but not civil cases or grand jury proceedings. Although evidence may be subject to the Exclusionary Rule, such evidence can be admitted for purposes of impeaching the testimony of the defendant at trial if the defendant testifies. Here, Deft’s admission was obtained in violation of his right to counsel and right to remain silent. Thus, his admission should be suppressed under the Exclusionary Rule and should be admitted only for purposes of impeachment if Deft testifies at his trial or in subsequent civil matters. 4. Jury Instruction re: Defense of Another Justification: Self- Defense and Defense of Others A person is permitted to protect oneself from imminent harm arising from the use of unlawful force. The force used in self-defense must be proportionate to the harm threatened. Deadly force may be used in self-defense if the person is without fault, confronted with unlawful force, and is threatened with imminent death or great bodily harm. Non-deadly force may be used to resist an improper arrest even if a known police officer is making the arrest. Similarly, a defendant has the right to defend others if he reasonably believes the party being assisted would have the legal right of self-defense. The level of force used is justified if proportionate to the threat faced. Defense of others may not be used to aid a criminal or criminal activity. Here, Deft believed that Oscar was arresting Friend unlawfully and struck Oscar to help Friend escape. The facts indicate that Oscar was a uniformed police officer and that Friend was resisting arrest. There are no facts indicating that the circumstances surrounding the arrest would have created in Deft or Friend a reasonable belief that the arrest was improper. Thus, the judge should instruct the jury that it was unreasonable for Deft to believe that Friend would have been permitted to resist arrest as a means of self-defense and that Deft’s assault was unjustified. Mistake of Fact Mistake of fact is raised as a defense to show the defendant lacked the state of mind required for the underlying crime. Reasonableness must be shown to disprove the state of mind for all crimes except for specific intent crimes. Here, the crimes for which Deft is charged are assault and battery. Assault is a specific intent crime, which is committed by an individual who causes another to reasonably apprehend that a battery is about to occur. Battery is a general intent crime, which is defined as the harmful or offensive contact with the person of another. Here, the facts indicate Deft intended to strike Oscar in an effort to help Friend escape from Oscar. Further, as mentioned above, it was not reasonable for Deft to think that Oscar was unlawfully arresting Friend. Thus, the judge should instruct the jury that Deft is not entitled to the defense of mistake of fact.

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