APPLIED PROJECT #2 – Warrants/Exceptions to the Warrant Requirement
Read the scenario below carefully:
Your Role for the Purpose of this Scenario
You are the on-call assistant district attorney (ADA) (i.e., prosecutor) for Hazzard County for the weekend of October 25th – 27th (Fri-Sun).
It is your first “on call” weekend, having recently been promoted from doing summary traffic appeals to the Major Crimes Unit. The remainder of the prosecutor’s office are on their annual camping retreat in the mountains, and without cell service, (and they are likely to have been consuming adult beverages all day anyway), so there are no more experienced ADAs available with whom you can confer. Being “on call” means you field all of the calls and questions from police throughout the county and have to render advice and opinions regarding how to apply criminal law/procedure to various unfolding serious incidents and investigations the police are working on.
The Facts
On Monday October 21st, at 11:30 P.M., there was an armed robbery at Horvath’s Convenience Store (Horvath’s) in Hazzard County which led to a double homicide. Two stocking-masked actors entered Horvath’s and demanded money from the clerk at gun point. Video surveillance was not sufficient to identify much about the two actors, except they appeared to be male and of medium height and build. Also, it is clear that both were carrying semi-automatic pistols (i.e., not revolvers). They were both wearing jeans and dark colored t-shirts. As the robbery was proceeding, a customer, trying to intervene, grabbed a full coffee pot and threw the hot coffee into the face of one of the masked actors. Horvath’s, coincidentally, is best known for having “the hottest coffee in the U.S.A.” (much to the dismay of Horvath’s business attorney). The actor is seen on the video writhing in pain for a few seconds, rubbing the left side of his face. The second (non-injured) actor appears startled for a second or two, and then opened fire on the intervening citizen, killing him. The two actors seem to confer for about 30 seconds, with excited and animated gestures (the video has no sound). After that, the non-injured actor points to the counter, and the injured actor proceeded to the counter and opened fire on the clerk, killing the clerk. The two actors then fled the store. The outside video surveillance only catches them walking across the parking lot. It is unknown if they fled ultimately on foot, or in a vehicle.
The police have been without leads, although they’ve posted a tip line in the press, and have been regularly been posting social media updates and issuing press releases calling for the public to assist with any information which may lead to the identity of the two actors. The community is outraged and frightened for their safety. Both the District Attorney and Police Chief, at a joint press conference, stated this case is the “number one priority” in Hazzard County.
On Friday, October 25th at 09:10 P.M. you receive a call from Detective Sergeant Castillo. Sergeant Castillo informs you that at 8:52 that evening, Hazzard Police received a posted tip on the confidential tip line, from screen name “CraZCooterComin@Ya” which reads as follows: “I know the 2 guys U R looking for. They are lookin to get outta town and will be gone 4 good if you don’t get them now. They’re like average size guys. I’m sick of them always threatening everyone, and they don’t even pay back what they owe. They just left. I heard them saying they wer goin to 125 Elm St. to get a car and finish watching the game. They said they R leavin after that. They r always armed and [explicative] so you wanna be careful. They said they may gotta do it again for trip money. Both r wearin jeans and black tees. Game’s over at 10 I think. They R gone after that for good. Don’t try and find me though, I don’t want involved. Too dangerous.”
Immediately following the tip, Sergeant Castillo, sent two of her plain clothes detectives to the area of 125 Elm St. At 9:07 P.M., Detectives Switek and Zito observed two average build males, wearing jeans and black t-shirts, enter the residence at 125 Elm St. Detective Switek reported seeing one of the males wearing a bandana which seemed to be partially covering the left side of this face. Switek reported, “the guy kept adjusting his bandana down to the left as they were walking to the house. It was like he was rubbing that side of his face I think. I think it’s them.”
Sergeant Castillo tells you:
“Switek wants to move in on the house right now and get these guys. He thinks we’ve got enough to move in due to the nature of the crime, the tip, what they observed following the tip, and he doesn’t think we have time to wait for a warrant or these guys may get away. Game’s over at 10:00. Johnson’s the on-call magistrate tonight. It’ll probably take us 20 minutes to get Johnson to even call us back regarding a warrant. I’ve sent Zito to watch the back door of the place to make sure they don’t end up leaving through the back and then we don’t even know about it. The county records are down, by the way, we don’t know the owner of 125 Elm Street yet.”
Sergeant Castillo also stated:
“Oh. Also, CraZCooterComin@Ya has posted four times on the confidential line before. Twice it was just general complaints about police response times. Once, it was investigative “advice” which seemed to us that whoever ‘CraZCooter’ is, the person had just watched the episode of CSI that was on the night before. One time though, CraZCooter posted some general information about a red Lincoln Town Car reportedly seen twice around the time there was some catalytic converters cut from vehicles for scrap metal money. We put that out in roll call and patrol guys ended up stopping a red Town Car for a traffic violation and it had some catalytic converters in it. That ended up clearing those cases.”
Sergeant Castillo then asks you: “What should we do now, counselor?”
For the purpose of this exercise, confine yourself to these materials: The case law on point in your jurisdiction is only the cases and materials you have studied thus far in the course. There is also a statute in Hazzard County’s state which reads:
Rule 205. Instituting Proceedings in Court Cases.
Criminal proceedings in court cases shall be instituted by:
(1) filing a written complaint (arrest warrant); or
(2) an arrest without a warrant:
(a) when the offense is a murder, felony, or misdemeanor committed in the presence of the police officer making the arrest; or
(b) upon probable cause when the offense is a felony or murder.
END OF FACTS AND SCENARIO…SEE NEXT PAGE FOR THE QUESTIONS YOU MUST ANSWER
YOU MUST ANSWER THE FOLLOWING:
How would you advise Sergeant Castillo based on the information she has supplied to you so far?
- Do you think a judge would issue a warrant based upon all of the facts and circumstances as you know them right now? Answer yes or no and see the instructions below.
- If you answer yes: What type/types of warrant(s)? What factors would you use from the fact pattern to justify the issuance of a warrant(s). What standard will the judge be looking for the police to meet to justify issuance of a warrant(s).
- If you answer no: Why do you think the judge would reject the warrant(s)? What factors are lacking that would fail to justify the issuance of the warrant(s)? What standard will the judge be looking for and why do the police fail to meet that standard?
- If Detective Switek indeed had “moved in on the house right now” to “get these guys” without a warrant, as Switek was recommending, and he and Zito found the murder weapons on each of the two males inside the residence:
- i) What grounds would the defense likely raise to suppress the evidence.
- ii) In evaluating potential responses to the defense motion, are there any legal arguments a prosecutor could make to justify Switek’s actions based on the course materials you’ve read so far?
- What other information, if any, or investigative actions would you like from the police? Could these actions occur in the time period CraZCooterComin@Ya suggests you have before: “They R gone after that for good.”
