July 2020 Second Example Ten-point Answers to Virginia Essay Questions
July 2020 - QUESTION 4 – VIRGINIA BAR EXAMINATION
Officer Quigley of the Roanoke, Virginia Police Department was on traffic patrol near the Valley View Mall one Saturday afternoon. The area is populated with fast food and family restaurants as well as small businesses. Tom and three of his friends were driving around socializing, with no particular destination in mind.Officer Quigley was traveling in the opposite direction of Tom. He saw Tom fail to stop for a red light. Officer Quigley activated his blue lights and stopped Tom’s car. He intended to issue a summons to Tom for the traffic infraction. Tom was driving the car and his friend Steve occupied the right rear passenger seat.
Soon after the traffic stop, Officer Carr arrived to serve as backup. Officer Carr was a narcotics officer and had a certified narcotics detection dog named Murphy with him. Murphy was certified in the detection of the odors of marijuana, cocaine, heroin and methamphetamine. Although Murphy is certified in detection of the odors, he cannot determine whether the odor is from the current possession of narcotics, or whether the odor is from previous possession.
After the stop, but while the driver and passengers were still inside the vehicle, Officer Carr walked Murphy around the vehicle. At the driver’s door, Murphy alerted by sitting. Murphy is trained to sit if he detects the odor of narcotics at his head height or above, and to lie down if the odor is ground level.
Officer Quigley directed the driver and three passengers to exit the vehicle. Officer Quigley searched the vehicle and found nothing inside the vehicle. Officer Quigley noticed Tom was nervous and perspiring, and he continually put his hand in his pocket. Officer Quigley suspected that Tom either had a weapon or drug paraphernalia. Without asking permission, Officer Quigley searched Tom and found two syringes and a bottle cap with a powdery residue in his pocket.
After searching Tom, Officer Quigley searched Steve, without asking his permission, and found syringes and a bottle cap containing a similar powdery residue in an inside pocket of Steve’s jacket.
The items found on both Tom and Steve were taken as evidence, and then submitted through the proper chain of custody to the Division of Forensic Science for analysis. After the analysis, a certificate was returned to the Roanoke Police Department indicating that residue of heroin was found in the syringes and bottle caps. After the certificate of analysis was received, both Tom and Steve were indicted in the City of Roanoke for possession of heroin, which is a Schedule I controlled substance.
|(a)||Did Officer Quigley have probable cause to stop Tom’s car? Explain fully.|
|(b)||Did Officer Quigley have probable cause to search the vehicle and to search Tom? Explain fully.|
|(c)||Did Officer Quigley have probable cause to search Steve? Explain fully.|
|(d)||DWhat motions should be filed on behalf of Tom and on behalf of Steve to prevent introduction of the syringes and bottle caps and the resulting certificate of analysis? What would be the basis of any such motion and what is the probable outcome of each? Explain fully.|
July 2020 - QUESTION 4 – EXAMPLE ANSWER #1
(a) Officer Quigley had probable cause to stop Tom’s car becuase Tom failed to stop for a red light.
Under the Fourth Amendment of the Constitution, an individual has a right against unreasonable searches and seizures of his person and effects. An officer may stop a car upon the probable cause of a crime being committed. If an officer personally observes a misdeamor, the officer may show authority and lawfully stop the vechile. Even if the stop was pretextual, in that the officer suspected the driver was guilty of another, distinct crime, but stops the driver and car based on probable cause of the witnessed traffic offense, the stop is lawful.
Here, Officer Quigley lawfully stopped Tom’s car. Officer Quigley personally witnessed Tom fail to stop for a red light, which gave him the probable cause to believe a crime had been committed - a misdemeanor traffic offense.
(b) Officer Quigley had probable cause to search the car and Tom based on the dog’s altering for narcotics.
Under the Fourth Amendment, a valid search is limited by the scope of probable cause for an offense. During a traffic stop based on probable cause of a traffic offense, an officer may look into the car and see items in plain view, and pay percieve other suggestions of a crime being committed (slurred speach, alcohol on breath), but could not enter the car or trunk absent probable cause of some other offense. Both the driver and passengers have a reasonable expectation of privacy and property rights in the car that is protected. However, if an officer has reasonable suspicion that the parties are dangerous to the officer, the officer may conduct a Terry Stop for the car. The officer can order the parties out of the car and conduct a Terry search, a pat down for objects that could be weapons. But the officer cannot maniuplate those items in the search.
An officer can use a drug sniffing dog to altert to illegal activities. However, the drug sniffing dog cannot extend the time or scope of the previous stop. While the dog has sense enhanced technology, so long as the dog solely sniffs outside the car, there is no reasonable expectation that the smell of the car is private. If the dog search is timely (not extending the stop unduely) and outside the car, a further search based on the dogs altert will not be fruit from the poisonous tree and excluded in a later criminal trial.
Here, Officer Quigley ordered the driver and passengers to exit the vehicle based on the dogs alert. Because the traffic stop was for a red light violation, prior to the dog’s alert Quigley had no reason to believe the car had evidence of a crime and therefore could not order the parties out or search the car for evidence. However, the dog alerted after a lawful search. Quigley stopped the car, and Officer Carr arriged with Murphy. While Murphy’s search was after the stop, the facts suggest that Officer Quigley did not make Tom and the passengers wait for Carr to arrive and search with Murphy. Murphy alterted to sitting, which suggested that the drugs were at his head hight or above. This gave the officers probable cause (more than a reasonable suspicion) of evidence of illegal drugs. Because the dog sat, there is further probable cause that the drugs were on the persons in the car, rather than attached to the bottom of the car outsie of the driver and passengers domininion and control. Because the sniff test did not extend the time or place of the stop and was done outside the vechile, Quigley had probable cause to search the vechile.
Officer Quigley’s search of Tom was similarly lawful. Quigley suspected that Tom either had a weapon because he put his hand in his pocket. Under Terry, that reasonable suspicion alone would allow Quigley to pat down, but not manipulate the objects on Tom’s outer person. The facts suggest an invasive search, not pat down, so Quigley cannot rely on Terry. However, Quigley may rely on the dog’s alert that the drugs were in the passenger compartment, not below the car, and at the driver’s door (where Tom is) to suggest the drugs were on the individual. This allows Quigley to conduct a full search for where evidence could be found, including pockets.
Even though Quigley did not have Tom’s consent, Quigley could lawfully search both Tom and the car based on probable cause to find evidence of a crime being committed.
(c)Officer Quigley did not have probable cause to search Steve, sitting on the rear passenger side away from where the dog alerted.
As mentioned above, an individual has a right against unreasonable searches and seizures of their person. For an officer to search an individual in an automobile, they must either have consent, reasonable suspicion of danger for a Terry Stop, or probable cause that the search will provide evidence of a crime.
Here, Officer Carr walked Murphy around the vechile but Murphy did not alert until seated outside the driver’s door - Tom’s location. That alert gave the officers probable cause to search Tom, but did not grant them probable cause to search Steve, seated away in the rear of the vechile. The facts suggest Murphy walked around, meaning Murphy did not alert to Steve’s location. Steve took no action to give Quigley reasonable suspicion of danger, such that Quigley could not lawfully conduct a Terry Search of Steve. While Quigley could lawfully order a passenger out of a vehicle in order to conduct a lawful search of the car (based on the Murphy’s alert at Tom’s location), there is no evidence to suggest Quigley had probable cause to believe Steve also, in addition to Tom, had evidence of a crime on his person.
(d) Motion to strike the evidence.
Assuming the evidence against Tom and Steve are in violation of their Fourt Amendment rights, they should move to exclude the evidence. Katz. In a criminal trial, a party may file a motion in limine to resolve an issue of admissibility prior to the trial taking place. The defense should file a motion to exclude the evidence, and the court should hold a preliminary hearing on the issue prior to trial. If the defense failed to make a pretrial motion, the defense may object to the admissibility of the evidence upon the prosecutions attept to admit the evidence. The court should hear arguments outside the presence of the jury so as not to prejudice the jury.
Here, Tom and Steve should argue that if the searches of their persons were unlawful, or if the dog search was unlawful, then evidence found as fruit of the poisonous tree should be excluded from prosecutions against them.
July 2020 - QUESTION 4 – EXAMPLE ANSWER #2
(a) Officer Quigley had probable cause to stop the car
The Fourth Amendment protects individuals from unreasonable search and seizures. An individual may be “seized” when a police officer has probable cause that a crime has been committed. Included in this definition of crime is a traffic offense. The driver of a vehicle and the vehicle’s occupants are “seized” when a police officer conducts a traffic stop. The simplest way for an officer to develop probable cause is upon witnessing a crime or traffic offense, but probable cause can be developed from other facts and circumstances as well. The touchstone of the Fourth Amendment is reasonableness. Officers must act reasonably and their actions are considered from an objective perspective, viewing the facts and circumstances from the perspective of a reasonable officer in the moment.
Officer Quigley had probable cause to stop the car because he witnessed the car fail to stop for a red light. Going through a red light without stopping is a traffic offense, and observing this conduct gave rise to probable cause to stop the car and issue a summons. Thus, Officer Quigley had probable cause to stop the car.
(b) Officer Quigley had probable cause to search the vehicle
The Fourth Amendment applies a special set of rules to police-citizen encounters that occur in the context of automobiles. One such rule is that an officer may not extend the time of an otherwise lawful traffic stop in order to get a drug-sniffing dog when there is not otherwise probable cause to believe the vehicle or it’s occupants are in possession of illegal controlled substances. Notably, a drug sniffing dog may be used during the course of a lawful traffic stop, so long as the traffic stop is not unreasonably extended. An alert from a drug-sniffing dog can give rise to probable cause so long as the foundation can be laid that the dog has the proper training, etc. A sniff from a drug dog is not considered a search unless it is done upon a constitutionally protected area. The hallmark example of this is a dog sniff in the curtilage of the home when the officer is otherwise not entitled to be there performing a search. Differently, a vehicle is not a constitutionally protected area where an individual has a reasonable expectation of privacy. Thus, a dog sniff of a car does not constitute a search. Another important rule in the context of automobiles is that officers may perform a warrantless search of a vehicle if they have probable cause to believe that it contains evidence of a crime.
Here, it is not clear whether the traffic stop was extended by the drug dog. The facts indicate that after the traffic stop was initiated, Officer Carr arrived to serve as back-up. This does not indicate that the stop was prolonged to allow Officer Carr to arrive for the purpose of conducting the drug sniff. In order for the dog sniff to be permissble and not a violation of the Fourth Amendment, it must have been done during the course of the traffic stop. Assuming the traffic stop was not exended to allow for Murphy to sniff, the sniff was permissible. Murphy’s alert by the drivers side door gave probable cause that there was evidence of criminal activity in the vehicle. Although Murphy’s alert can not indicate whether there is a current possession of narcotics or a former possession, his alert is likely still sufficient to establish probable cause. Dog alerts are not perfect, but they create a quantum of evidence sufficient to establish probable cause. Probable cause is not measured by quantity or percentages, but rather is a reasonable liklihood of the suspected activity. While Murphy’s dog sniff alone cannot establish conclusively that the car contained evidence of drugs, it creates a reasonable probability sufficient to establish probable cause.
(c) Officer Quigley did not have probable cause to search Steve
When Murphy alerted at the passenger door, that gave Officer Quigley the ability to search the car but that probable cause does not automatically extend to all of the occupants. Probable cause is limited in scope. In the absence of an exception, an officer typically needs a warrant to perform a search of a person. Murphy was walked all the way around the car, meaning he walked by Steve’s rear passenger door and did not alert. Other than being close in proximity to Tom, there was no other reason to suspect that Steve was engaged in any illegal activity. Mere proximity to another engaged in illegal activity is insufficient to give officers probable cause to search someone. Without probable cause and without any exception allowing a warrantless search, Officer Quigley’s search of Steve was unreeasonable.
(d) Tom and Steve should file a motion to suppress.
Tom and Steve should file a motion to suppress in Circuit Court, at least 7 days before trial. Such a motion should be based on violations of their Fourth Amendment rights. When evidence is collected in violation of an individual’s Fourth Amendment rights, i.e. when evidence is collected as a result of an illegal search or seizure, it will be excluded and inadmissible at trial. This is the case regardless of the guilt or innocence of the defendant, it is a rule designed to deter police misconduct.
Tom and Steve should both argue that running Murphy around the vehicle was the first violation of their constitutional rights. Although the facts make the outcome of this issue unclear, it appears to tip more in favor of the Commonwealth and thus is not the best basis for their motion to suppress. A better argument is that their Fourth Amendment rights were violated when they were searched. Their arguments are slightly different, as discussed below.
(i) Tom’s Argument
Tom should assert that Officer Quigley did not have reasonable suspicion to perform a pat-down and even if he did, he exceeded the scope of the pat-down. An officer can perform a protective pat-down when he has reasonable suspicion to believe that a suspect is carrying a weapon. Reasonable suspicion is developed based on facts and circumstances, may include the officer using his training and experieince and may be developed by observing furtive movements. The pat-down is a search for weapons, not for evidence of a crime. If, in conducting the pat down, the officer encounters something that is immediately apparent as paraphernalia, he may remove it. This is colloquially refered to as the plain feel doctrine. Importantly, an officer may not manipulate an object to determine it’s character. If it is not immediately apparent as paraphernalia upon first touch, the officer cannot remove it. Doing so is a Fourth Amendment violation. Furthermore, if the officer encounters something that he believes may be a weapon but is unsure, he may remove it to further investgiate.
Here, Tom should aruge that Office Quigley did not have reasonable suspicion that Tom was armed and even if he did, he exceeded the scope of the patdown. His first argument will likely fail. Tom was nervous and perspiring, and kept putting his hand in his pocket. In relying on his training, Officer Quigley suspected that Tom may have a weapon. These facts are sufficient to establish reasonable suspicion, a standard notably lower than probable cause. This gave Officer Quigley the authority to perform a protective pat down to search for weapons. Tom’s better argument is that Officer Quigley exceeded the scope of this pat-down. First, the facts indicate that Officer Quigley “searched” Tom, not that he performed a pat-down. This is in and of itself in excess of the authority Officer Quigley had. Furthermore, even if Officer Quigley’s “search” was actually a pat-down, he could not remove the syringes unless they were immediately apparent upon feeling them. Officer Quigley may assert that he had probable cause to believe that Tom was in possession of narcotics, but he did not have the authority to search him without a warrant. He could have perfomed such a search incident to arrest, but that is not the case here. If Tom is successful, the evidence will be excluded and the charges against him should be dropped.
(ii) Steve’s argument
Steve should argue, as dicsussed in subsection (c) that Officer Quigley did not have probable cause to search him. As discussed above, that argument is likely to be successful. Steve can likewise argue, as Tom, that there was no reasonable suspicion that Steve was armed, giving no authority to perform a pat- down. Steve is likely to prevailo on his claim. As such, the evidence of the syringes, bottle caps and the certificate of analysis should be excluded pursuant to the exclusionary rule. If that evidence is excluded, the charges against Steve should be dropped.