Crim Pro Midterm 

The Federal Bureau of Investigation (FBI) received an anonymous letter that a judge currently serving on the federal court of appeals in Cincinnati took a large bribe from the writer of the letter.  According to the letter, the judge, Karl Kaspian, used to live in a small home and now lives in a mansion and wears fancy jewelry.  FBI agents checked housing records and noticed that Judge Kaspian had recently moved from a modest neighborhood to a wealthy gated community.  An undercover agent sat in the Judge’s courtroom and noticed his wearing a fancy watch and ring.  After the day’s court proceedings were over, the FBI agent observed, and seized, a diamond ring that Judge Kaspian had dropped on the floor on his way out of the courthouse.

Four FBI agents then surrounded Judge Kaspian inside the parking garage of the federal courthouse in Cincinnati.  The agents’ guns were visible in their holsters, but they kept enough distance so Judge Kaspian could get to his car.  The agents asked Judge Kaspian if they could search his car, and the Judge said yes.  Inside the car, the agents found records of many bribes Judge Kaspian had taken.  At his trial for corruption, Judge Kaspian seeks to exclude (1) the diamond ring and (2) the evidence from his car.  What is the likely result?

Answer Key

The ring:

Police likely did not have probable cause to seize the ring, which will be excluded at trial (could go either way).

With respect to reasonableness, the plain view doctrine allows police to seize or search items in plain view of where police are lawfully allowed to be, without a warrant, but only if they have probable cause to believe the item is contraband.   In Arizona v. Hicks, the police were not allowed to move a stereo that was in plain view because the police did not have probable cause to believe the stereo was stolen.

The police were lawfully in the courthouse, as a public place, so the close question is whether police had probable cause to believe that the diamond ring was evidence of accepting illegal bribes.

Probable cause was supported by an anonymous informant, who, just like in Illinois v. Gates,  had a basis for information (she claimed to have bribed the judge herself) but was lacking in indicia of reliability – although she was implicating herself, albeit anonymously.    This reliability was corroborated, but Judge Kaspian’s actions were less suspicious than in Gates (moving to a fancy home and wearing fancy jewelry is less suspicious than strange back and forth trips to Florida over only a few days), and the information provided by the letter was public record anyway.  2 Although the FBI needs only a “fair probability” that the ring was associated with criminal activity, that threshold may not yet have been met here.

The evidence from the car:

A judge will likely exclude the evidence from the car, because consent to search the car came after an unlawful seizure.

If the police did not have probable cause to seize the ring, they also did not have probable cause to arrest or seize Judge Kaspian.   Thus, if they seized him, they did so unlawfully and the consent is the product of an unlawful seizure.  Unlike in Drayton, where the bus interdiction was not considered a seizure, here the Judge was surrounded by four officers (with visible guns) in an enclosed parking lot.    His movement was likely restricted, although like in Drayton, it was not totally restricted.   A reasonable person would likely not have felt free to terminate the encounter, so when the Judge gave consent, it was the product of an illegal seizure.

If there was probable cause, no warrant needed because Kaspian committed a felony, but if not, this was unreasonable unless just a brief detention.

Further, Judge Kaspian’s consent was likely involuntary, although this is a close question.   Looking at the totality of the circumstances, as Schneckloth requires, Judge Kaspian probably felt cornered by the police and afraid.  On the other hand, Judge Kaspian is a judge, who is sophisticated and knows his rights – which was a relevant factor, although not dispositive, in Schneckloth.   Regardless, his consent, even if voluntary, was the product of a seizure without probable cause.