Legal Analysis: Drug Trafficking & Warrant Case - Fourth & Fifth Amendment Issues, Study notes of Criminal Law

Download Legal Analysis: Drug Trafficking & Warrant Case - Fourth & Fifth Amendment Issues and more Study notes Criminal Law in PDF only on Docsity! FLORIDA BAR CRIMINAL LAW CERTIFICATION SAMPLE QUESTIONS AND ANSWERS Sample Questions provided are for illustrative purposes only, and should not be relied on as an indication of topics that may be covered on the exam. Likewise, the model answers provided, while correct at the time the questions were written, may not reflect current law. SAMPLE ESSAY QUESTION 1 On August 1, 2010, Deputy Sheriff Derrick Smith (“Smith”) of the Lemon County (Florida) Sheriff’s Office received an anonymous tip that Danny Defendant (“Defendant”) was “a major drug dealer” in Lemon County. That same day, shortly after receiving the tip, Smith observed Defendant’s pickup truck in the parking lot of a local bar. Without obtaining Defendant’s consent, Smith placed a magnetized mobile global positioning tracking device (“GPS”) on the undercarriage of Defendant’s pickup truck. Over the next thirty days, Smith tracked the movements of Defendant’s pickup truck throughout Lemon County. On September 1, 2010, Smith received an anonymous tip that Defendant had an outstanding warrant in neighboring Grapefruit County (Florida) for failure to appear in Court in Grapefruit County for a charge of driving on a suspended license (“DWLS/R”). Using his computer, Smith checked the website for the Grapefruit County Sheriff’s Office, which showed that Defendant had an outstanding warrant in Grapefruit County for DWLS/R. That same day (September 1, 2010) Smith resumed the GPS track on Defendant’s pickup truck. Smith determined that Defendant’s pickup truck was traveling in Lemon County towards Defendant’s residence. Smith went to Defendant’s residence in Lemon County and immediately observed Defendant’s pickup truck enter the driveway at Defendant’s residence. Defendant, who was alone in the pickup truck, got out of the pickup truck and walked about twenty (20) feet towards Defendant’s residence. Smith advised Defendant that Defendant was under arrest for the outstanding Grapefruit County warrant, and Smith placed Defendant in custody by handcuffing Defendant. Without asking Defendant for permission or consent, Smith searched Defendant’s pickup truck. Smith located a purple velvet Crown Royal bag underneath the driver’s seat in Defendant’s pickup truck. Inside the purple velvet Crown Royal bag were a digital scale and a plastic baggie containing thirty (30) grams of a powdery substance, which Smith believed was methamphetamine. Smith conducted a field test on the powdery substance; the presumptive result of the field test was that the substance was methamphetamine. Using Defendant’s keys, Smith unlocked and searched a tool box in the bed of the pickup truck, and located a short-barreled rifle. Smith arrested Defendant for possession of drug paraphernalia, for trafficking in methamphetamine, for possession of a short-barreled rifle, and for driving with a suspended license out of Grapefruit County. The next day (September 2, 2010), the Lemon County Court conducted a first appearance for Defendant’s Lemon County charges. At that time, the Lemon County Judge appointed the Office of the Public Defender for Lemon County to represent Defendant on his Lemon County charges. The Lemon County first appearance Judge also arraigned Defendant on a pending Lemon County Court charge of disorderly intoxication. On the disorderly intoxication charge, Defendant waived his right to counsel and plead guilty. The Lemon County Court Judge sentenced Defendant to sixty (60) days in the Lemon County Jail on the disorderly intoxication charge. On September 3, 2010, Smith received information that Defendant may have sexually molested Child Victim (“Victim”), a seven year old boy. Smith went to the Lemon County Jail. Smith was escorted out of his general population location within the Lemon County Jail and taken to the interrogation room. At that time, Smith advised Defendant of his Miranda rights. Smith attempted to question Defendant about the allegations concerning the sexual abuse of Victim. Defendant advised Smith that Defendant wanted to speak to his lawyer. Smith terminated the interview and 2 In this case, Defendant’s counsel should argue at the time Smith conducted the search, the Defendant was not within the reaching distance of his pickup truck. Additionally, Defendant’s counsel should also argue that none of the items Smith recovered (paraphernalia, methamphetamine and the firearm) were relevant to the crime for which Smith arrested Defendant (failure to appear in Grapefruit County for driving with a suspended license). In this instance, the State will likely argue that Smith’s search of the vehicle and the tool box constituted a valid inventory search. It has been well recognized that police may conduct an inventory of the contents of lawfully impounded vehicles as a routine, administrative community caretaking function, in order to protect the vehicle and property in it, to safeguard the police and others from potential danger, and to insure against claims of lost, stolen, or vandalized property. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct.3092,3097 (1976). Respecting the inventory, the Court ruled that such intrusions into automobiles legally “impounded or otherwise in lawful police custody” have been widely sustained as reasonable under the Fourth Amendment “where the process is aimed at securing or protecting the car and its contents”. 3) Herring v. U.S.: Defendant’s counsel should argue that because there was no valid arrest warrant pending in Grapefruit County, Smith’s arrest of Defendant and Smith’s subsequent seizure of evidence from Defendant’s pickup truck violated Defendant’s 4th Amendment rights. In this case, however, the State will rely on Herring v. U.S., 555 U.S. 1, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In Herring, the U.S. Supreme Court ruled that if law enforcement negligently fails to note the recall of an arrest warrant, so long as the official did not act “recklessly or deliberately” the exclusionary rule would not apply. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Suppression was unwarranted because an error in record keeping, not flagrant or deliberate misconduct led to Herring’s arrest. The court also warned that it was not “suggesting that all recordkeeping errors by the police 5 are immune from the exclusionary rule. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should misconduct cause a Fourth Amendment violation” Given the circumstances of this case, the trial Court will likely rule 1) Smith’s placement of the GPS did not violate Defendant’s 4th Amendment rights; 2) while Smith’s conduct violated Gant, Smith likely conducted a valid inventory search of Defendant’s vehicle; and 3) because Smith did not act “recklessly or deliberately” in arresting Defendant on an invalid arrest warrant, the items seized will not be subject to the exclusionary rule. B. Fifth Amendment Issues: In this case, Defendant’s counsel should argue that the Sanders violated Defendant’s Fifth Amendment right to counsel when Sanders obtained Defendant’s confession concerning the sexual abuse of Child Victim. However, Defendant's counsel will not be successful in light of the U.S. Supreme Court ruling in Maryland v. Shatzer, 559 U.S. ___, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). In Shatzer, the U.S. Supreme Court noted that in Edwards v. Arizona [451 U.S. 477 (1981)], once a defendant asserts his or her right to counsel at a custodial interrogation, a law enforcement officer may not conduct further custodial interrogation until the defendant has counsel for questioning or if the defendant initiates further communication with the officer. The Shatzer opinion held that after a “break in custody” occurs after a defendant asserts his right to counsel, lasting fourteen (14) days or more law enforcement may reinitiate the custodial interrogation after giving Miranda warnings and receiving a waiver of Miranda rights. Notwithstanding that Defendant remained in the Lemon County Jail, the Court in Shatzer held that there was a break in custody under these circumstances. When a Defendant has been released from custody and returned to normal life before the police later attempt interrogation, there is little reason to believe that the suspect’s change of heart was coerced. The Court then stated that the appropriate period of time for a person to be re-acclimated to normal life was 14 days. 6 Given the circumstances of this case, the trial Court will likely rule Defendant’s confession to Sanders did not violate Defendant's Fifth Amendment right to counsel and did would be admissible at trial. Date of question: 2011. (criminal appellate and criminal trial exams) SAMPLE ESSAY QUESTION 2 Mr. T., a small time drug dealer, has just been indicted in federal court on 2 counts: possession with intent to distribute a mixture or substance containing 100 grams or more of heroin, 21 U.S.C §§ 841(a)(1) and 841 (b)(1)(B)(i) (count 1); and possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count 2). The facts, according to the agents, which Mr. T doesn’t dispute, are as follows: On November 30, 2008, Mr. T was rolling along in his van, just looking for a deal on gold chains. He got a call from Colonel Hannibal Smith, who suggested Mr. T come by the hideout (room 212 at the Comfort Inn) and relax with a little heroin. Mr. T had a better idea. He said he would sell the Colonel all of his remaining stash of heroin because he wanted to go into rehab and get off the stuff. He said he had a little over 100 grams left in his possession. When Mr. T arrived at the Colonel’s hideout, he gave the Colonel the baggie of heroin and suggested the Colonel try it because it was real good stuff. The Colonel said he didn’t want to mix business with pleasure. But Mr. T’s girlfriend, who had come with him said she would try some. She was drunk. He told her no, and she started whining. So Mr. T gave her some to shut her up. She snorted some of the heroin because she was too unsteady to cook it. Then she started throwing up. Just then, the authorities busted in. It turned out Colonel Smith was working for the government. This was part of a “Joint Task Force” situation where 2 DEA agents watched 10 local deputies do all the work. The girlfriend was taken to the hospital. It was later learned that she snorted too much of the high quality heroin. It shocked her system, and, along with the large 7 and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. Any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein. 18 U.S.C. 922(g)(1) (g) It shall be unlawful for any person-- (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; *** to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 924(a)(2) (2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both. 10 18 U.S.C. § 924(e) (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2) As used in this subsection-- (A) the term "serious drug offense" means-- (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . . 11 U.S.S.G § 2D1.1(c)(7) At least 100 G but less than 400 G of Heroin Level 26 U.S.S.G. § 4A1.1 Criminal History Category The total points from items (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five, Part A. (a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month. (b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a). (c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this item. (d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. (e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item. (f) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was counted as a single sentence, up to a total of 3 points for this item. ______________________________________________________________________ 12 by the defendant was of a type described in 26 U.S.C. § 5845(a); or, (3) Category IV. ______________________________________________________________________ Sentencing Guideline Table: 15 SAMPLE ESSAY MODEL ANSWER 2 This is a process question that should address three components: Minimum mandatory sentences, a guidelines calculation and a method for avoiding the minimum mandatory. I. Min/Man: The Minimum Mandatory for Count I is 5 years. It would be 20 years if death or serious bodily injury resulted from the use of the heroin. Although, the facts here do not establish serious bodily injury, this is something the person should be aware of in case the girlfriend shows up dead or seriously ill by sentencing and the government can prove it is a result of the heroin. There is no minimum mandatory on Count II, although there would be if the armed career criminal enhancement applied. There are only 2 qualifying predicates under § 924(e), the 2 burglaries. To qualify under ACCA, there must be 3 violent felonies or serious drug priors. If the ACCA enhancement kicked in, the statutory penalties on count II would jump from 0 – 10 years to 15 to life. Thus, the answer should address a 5 - 40 year exposure window, with 5 being min/man. II. The advisory sentencing guideline calculations. This will require the review of the attached materials. The following steps must be covered: A Ascertain the drug weight – a little more than 100 grams of heroin, which is less than 400 grams & therefore falls under U.S.S.G. § 2D1.1(c)(7), base offense level 26. B. Assure no victim impact – none from the facts. C. No adjustment for obstruction of justice – not from these facts. 16 D. Acceptance of Responsibility – 2 points from this fact pattern. UPON MOTION OF THE GOVERNMENT an additional 1 point may be applied. Some may add it, some people might not. It is ok either way. E. Offense Level Computation – 1. Using the November 1, 2008 Manual (there may be a discussion on the Rule of Lenity, the use of different Manuals, the One-Book Rule, but not really relevant to the Question). 2. Counts I and II will be grouped together pursuant to §3D1.2(d) because Count II includes conduct that is treated as a specific offense characteristic in, or an adjustment to, the guidelines applicable to Count I. 3. BASE OFFENSE LEVEL. Using §2D1.1(a)(3) and (c)(7) the level is 26. 4. There is a specific offense characteristic for the firearm under U.S.S.G. § 2D1.1(b)(1) (If a dangerous weapon (including a firearm) was possessed, increase by 2 levels.). 5. No Victim-Related Adjustments 6. No Adjustment for Role in Offense based on this fact pattern. 7. No Obstruction of Justice based on this fact pattern. 8. Acceptance of Responsibility gives you 2 points off. Some people may give the 3rd point. 9. Adjusted point total is 26, maybe 25 17 weapon and that is also a disqualifier. BUT if they mention Safety Valve, there should be some recognition of that. Remember, safety valve not just gets the defendant below the min/mand, in drug cases it can give 2 levels off under §2D1.1(b)(7). So if they mention this aspect, they should get extra credit, just like they should know substantial assistance motions need to refer to 18 U.S.C. §3553(e) to get under the minimum mandatory. Here, of course, Mr. T should be happy to get down to the min/mand. But we want to be sure the answer addresses the correct type of Substantial Assistance motion. An examinee might throw in an argument about an over representation departure. Anytime two priors that landed someone in jail for less than two years increases his sentencing range from around 12 or 15 to around 20 or 30, that criminal history is over represented. Under 4A1.3 and 11th Circuit law, any over-representation departure is limited to one level horizontally. There is a circuit split on whether a vertical departure is authorized. I doubt anyone will pick up on that. But there are always the 18 U.S.C. 3553 factors. IV. 3553(a) factors The guidelines are advisory. The man/min is only 5 years. There are a lot of mitigating facts, like Mr. T was real remorseful and cooperative from the start; he was trying to get rid of his stash so he could go to rehab; he was going to pawn his gun, not sell it on the street, to leave money for his kids; he had a little over 100 grams and the scale for level 26 is 100 to 400 grams, so if he had a few grams less, he would have been two levels lower; he was almost 300 grams from the top of the scale; he has never been sentenced to more than 21 months in prison and now he is looking at about 10 times that amount at the low end of the range. If the person is a prosecutor, he can talk about Mr. T letting his drunk girlfriend snort H and what a bad father he is, so he deserves the high end. They should be able to link these and other facts to the following 3553(a) factors: 20 (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and, (10) the need to provide restitution to victims. The Best answer will have the correct identification of the statutory minimum mandatory issues, the guideline range, departures/enhancements, and the 3553 factors. A Moderate answer will get 2 or parts of 3 of the 4 components correct. A Poor answer will only adequately address one component. Date of question: 2010. (criminal appellate and criminal trial exams) 21 SAMPLE ESSAY QUESTION 3 Dan Douglas and Pete Phillips meet up together at the Hilton hotel bar in Tampa, Florida, the night before the Criminal Law Board Certification Exam. Dan and Pete went to law school together 7 years ago, and both worked as prosecutors when they graduated from law school. Dan left the Office of the State Attorney two years ago to open his own criminal defense and civil law practice. Pete has stayed on and now works as a supervisor in the homicide division. Dan and Pete are two beers in when Dan’s cellphone rings. Dan puts the phone on speaker and begins a conversation with a client. Carl Cooper is pretty upset and starts yelling at Dan about not returning his calls or emails about his case and that Carl “doesn’t know what’s going on.” The call lasts about 3 minutes and then Dan tells Carl that he is about to drive into a tunnel and he will lose cellular service. When he hangs up, Dan tells Pete that Carl is his first client from when he opened his practice and that Carl is a real pain in the butt. Dan says he has talked to Carl one other time on the phone since he took the case, but he did meet with him once to take a large fee. Dan then confides in Pete that it is good he called because Carl’s case does have something to do with the Office of the State Attorney. Carl was prosecuted by Dan for a sale of cocaine case in 2010. As part of that case, Carl’s car was seized by the Florida Highway Patrol. Carl thought Dan did a good job prosecuting him, and was really reasonable in his plea offers – so Carl hired Dan the week after he opened his law office to sue the State of Florida to get his car back because of a faulty and misleading probable cause affidavit. Dan was initially excited, but has lost interest over the last couple of years and doesn’t want to tell Carl there is a Motion to Dismiss hearing set for next week which will probably result in the case being dismissed. Dan orders another beer and tells Pete that Carl might have some information about a major drug dealer operating out of the Florida Bar Offices in Tallahassee. Pete is listening while nursing his third beer. Dan tells Pete that the information is sensitive and Carl told him in confidence on their first phone call, but told Dan that he could use the information to help him in the civil suit. The only thing that could really help out 22 An answer that adequately and accurately covers all five rules will score a 6. Date of question: 2013. (criminal appellate and criminal trial exams) SAMPLE MULTIPLE CHOICE QUESTIONS 1. In federal court, which of the following statements regarding sentencing is not correct? A. Any fact, other than a prior conviction, that increases the statutory maximum must be admitted by the defendant or proven beyond a reasonable doubt. B. Any fact, other than a prior conviction, that increases the statutory mandatory minimum must be admitted by the defendant or proven beyond a reasonable doubt. C. A federal sentence can be consecutive to anticipated state sentence. D. A federal judge cannot order a federal sentence to be concurrent or consecutive to a state sentence that has not yet been imposed. Answer: D. (a) Apprendi v. N.J., (b) Alleyne v. U.S., (c) Setser v. U.S., 132 S. Ct. 1463 (3/28/12) Date of question: 2014. (criminal appellate and criminal trial exams) 25 2. After the District Court of Appeal issued its opinion, but before the time for rehearing expired, the State filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court based on conflict. The Defendant, within the rehearing time, but after the State filed the foregoing notice, then filed a motion for clarification. Does the District Court have jurisdiction to rule on the clarification motion? A. No, because the timely filing of the notice to invoke divested the District Court's jurisdiction. B. Jurisdiction to rule on the motion can be recaptured only if a motion to relinquish jurisdiction is filed with the Florida Supreme Court and is granted for the limited purpose of allowing the District Court to rule on the clarification motion. C. The District Court, pursuant to Florida Rule of Appellate Procedure 9.600, has concurrent jurisdiction and can rule on the motion for clarification. D. The District Court has jurisdiction to rule on the clarification motion since the notice to invoke was prematurely filed. Answer: D. Portu v. State, 654 So.2d 169 (Fla. 3rd DCA 1995) Date of question: 2011. (criminal appellate exam) 26 3. A defendant was tried, convicted and sentenced to a term of years of incarceration in a Florida Circuit Court. The Defendant filed a Notice of Appeal on January 1. The Circuit Court entered an order designating the Office of the Public Defender as appellate counsel for the Defendant on February 1. The record on appeal was served on Appellate counsel for the Defendant on February 15. The Defendant’s initial brief must be: A. Filed (or time extended) within thirty days of February 1. B. Served (or time extended) within thirty days of February 1. C. Filed (or time extended) within thirty days of February 15. D. Served (or time extended) within thirty days of February 15. Answer: D. Rule 9.140(g). Date of question: 2013. (criminal appellate exam) 27