Court of Appeals for the Second Circuit noted that the Fifth by wlJtk55

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									Crimes - ANSWERS TO PROBLEM CASES:
1. No. The U.s. Supreme Court held that even though neither Wardlow’s presence in
   the disreputable neighborhood nor his unprovoked flight from the police was illegal,
   the two facts together constituted a reasonable basis for suspicion that Wardlow was
   engaged in criminal activity. Therefore, under Terry v. Ohio, 392 U.S. 1 (1968), the
   officer was justified in conducting the stop-and-frisk search. Illinois v. Wardlow, 528
   U.S. 119 (2000).
2. No. According to the Supreme Court, Carter and Johns did not possess a reasonable
   expectation of privacy with regard to the apartment. Unlike an overnight guest,
   persons who are merely present with the consent of the lessee of the premises do not
   have a reasonable expectation of privacy. In addition, Carter and Johns were on the
   premises a relatively short period of time, they had no previous connection with the
   apartment's lessee, and their presence on the premises was for the purpose of
   participation in a commercial transaction. Expectations of privacy in commercial
   property are different from, and less than, a similar expectation in a home or
   apartment. The purely commercial nature of the transaction in which Carter and
   Johns participated made the premises essentially commercial with regard to them.
   For all these reasons, if the police officer's observation through the window
   amounted to a search, it was a search that did not violate the Fourth Amendment
   rights of Carter and Johns. Minnesota v. Carter, 525 U.S. 83 (U.S. Sup. Ct. 1998).
3. No. The U.S. Court of Appeals for the Second Circuit noted that the Fifth
   Amendment privilege against self-incrimination does not extend to legal entities such
   as corporations. Moreover, the court observed, a private individual cannot claim
   such a privilege against the production of documents belonging to a corporation on
   the ground that they would tend to incriminate him. The appellate court agreed with
   the lower court’s determination that the documents were the corporation’s, not Doe’s.
   Incrimination of Doe through information in documents belonging to the corporation
   thus could not be seen as self-incrimination for Fifth Amendment purposes. The
   court also reasoned that even if the documents had belonged to Doe--which they
   didn’t--he would not be exempt from an obligation to produce them in response to
   the subpoena. The privilege against self-incrimination extends only to testimonial
   communication. The documents, not having been prepared by Doe, contained no
   testimonial declarations by him. Any act by Doe in producing (i.e., turning over) the
   documents would not have a testimonial character either. In re Grand Jury
   Subpoenas Dated October 22, 1991, and November 1, 1991, 959 F.2d 1158 (2d Cir.
   1992).
        4. No. The U.S. Supreme Court upheld the legality of the EPA's warrantless
   aerial photography of the Dow plant. The Court said that the area in question was
   "more comparable to an open field" than to a protected "curtilage of a dwelling," and
   was therefore "open to the view and observations of persons in aircraft lawfully in
   public airspace immediately above or sufficiently near the area for the reach of
   cameras." The Court also noted that the expectation of privacy an owner of
   commercial property enjoys is less sweeping than the expectation of privacy an
   owner of residential property enjoys. Although Fourth Amendment concerns might
   have arisen if the EPA had used "highly sophisticated surveillance equipment not
   generally available to the public, such as satellite technology," the use of commercial
   camera equipment--albeit powerful camera equipment--did not create a Fourth
   Amendment problem. Dow Chemical Co. v. United States, 476 U.S. 227 (U.S. Sup.
   Ct. 1986).
            5. Yes. The U.S. Supreme Court held that the ordinance did not contain the
       minimum constraints on law enforcement that a statute or ordinance must
       establish. Writing for the Court, Justice Stevens addressed the sweeping
       authority that the ordinance gave police officers:
       It matters not whether the reason that a gang member and his father, for example,
       might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a
       glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is
       not apparent to a nearby police officer, she may--indeed, she “shall”--order them
       to disperse.
       Justice Stevens acknowledged that the ordinance’s requirement that a suspected
       gang member be present limited law enforcement’s authority somewhat. He
       pointed out the following, however:
       That limitation would no doubt be sufficient if the ordinance only applied to
       loitering that had an apparently harmful effect, or possibly if it only applied to
       loitering by persons reasonable believed to be criminal gang members. But this
       ordinance, for reasons that are not explained in the findings of the city council,
       requires no harmful purpose and applies to non-gang members as well as
       suspected gang members. Friends, relatives, teachers, counselors, or even total
       strangers might unwittingly engage in forbidden loitering if they happen to
       engage in idle conversation with a gang member.
       City of Chicago v. Morales, 527 U.S. 41 (1999).
6. Yes, the U.S. Supreme Court concluded. The Court noted that a traveler’s luggage is
   an “effect” protected by the Fourth Amendment, and that Bond indisputably had both
   a property interest in , and a reasonable expectation of privacy regarding, his bag.
   Although Bond may have had a reasonable expectation that other persons might
   handle the bag, given its location in the overhead storage space, he would not have
   had reason to expect that the bag would be touched and manipulated in the
   exploratory manner employed by Agent Cantu. Had Bond’s “brick” of
   methamphetamine been in public view and thus easily seen by Cantu, there would
   have been no Fourth Amendment violation. Under the circumstances, however,
   Cantu’s tactile “observation” was too invasive and therefore unreasonable. In
   holding that Bond’s motion to suppress the seized evidence should have been
   granted, the Court pointed out that the government had not attempted to argue that
   Bond’s consent to Cantu’s opening the bag should justify admission of the evidence.
   Bond v. United States, 529 U.S. 334 (2000).
7. The Eleventh Circuit Court of Appeals held that the plaintiffs’ allegations, if proven,
   would satisfy the elements of a RICO violation. They sufficiently alleged a pattern
   of racketeering activity connected with Mohawk’s operation of an enterprise.
   Moreover, the allegation of depressed wages as a supposed result of Mohawk’s
   actions was a sufficient allegation of a “business” injury for purposes of RICO’s civil
   remedy provisions. The Eleventh Circuit therefore affirmed the district court’s denial
   of Mohawk’s motion to dismiss for failure to state a claim. Williams v. Mohawk
   Industries, Inc., 2005 U.S. App. LEXIS 10710 (11th Cir. 2005).
8. According to the U.S. Supreme Court, a limited segment of the tape's audio portion--
   the segment dealing with the question about the date of Muniz's sixth birthday--
   should have been suppressed under the Fifth Amendment and Miranda. That
   question called for a testimonial response from Muniz, who was in custody but had
   not been given the Miranda warnings. The earlier questions asked of Muniz were of
   the standard booking nature (for identification purposes), meaning that the responses
    given by Muniz raised neither Fifth Amendment nor Miranda concerns and that the
    segments of the tape dealing with those questions amounted to admissible evidence.
    This was so even though Muniz stumbled over some of his responses to those
    questions. The stumbling nature of the responses was physical in nature and would be
    considered nontestimonial (despite being incriminating), just as the sound of one's
    voice and the appearance of his fingerprints are nontestimonial in nature. The verbal
    response to the sixth birthday date question, however, was different. That response
    was incriminating not only because of Muniz's nontestimonial delivery but also--and,
    for Fifth Amendment and Miranda purposes, critically--because the content of the
    answer would support an inference that Muniz's mental state was confused. Hence,
    the response to that question was testimonial and subject to suppression in the
    absence of the Miranda warnings. Pennsylvania v. Muniz, 496 U.S. 582 (U.S. Sup.
    Ct. 1990).
9. Yes. The New York Court of Appeals affirmed Versaggi's conviction, concluding
    that his actions were consistent with the plain meaning of the word "alter" and with
    the meaning the legislature intended to be given to the phrase "alters in any manner . .
    . a computer program of another person." The relevant computer program consisted
    of a set of instructions that, when followed, produced a result Kodak wanted: the
    operation of its telephone system. Versaggi's actions caused the computer program
    to produce the opposite result: shutdown of the telephone system. According to the
    court, it did not matter whether Versaggi used other existing instructions to disable
    the telephone system or, instead, added new instructions that led to the shutdown.
    Either way, he "altered" the computer program by intentionally causing it to produce
    the interruption of telephone service, a result inconsistent with Kodak's purpose.
    People v. Versaggi, 629 N.E.2d 1034 (N.Y. 1994).
10. Although Fourth Amendment issues are often raised by defendants in criminal cases,
    Trulock and Conrad raised the issues in a civil case in which they sought an award of
    damages against the FBI agents and other FBI personnel. The case citation is
    Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001). Trulock was an appeal of a federal
    district court’s decision to grant the defendants’ motion to dismiss the case. As
    noted in the text, a warrantless search by government agents does not violate the
    Fourth Amendment if there has been valid consent to the search. Regarding the
    Fourth Amendment violations alleged by Trulock and Conrad, the Fourth Circuit
    concluded that Conrad’s consent to a search of the townhouse was not valid for these
    reasons: Conrad provided the supposed consent after her Department of Energy
    supervisor told her, falsely, that the FBI had a warrant to search the townhouse and
    would break down the door of the townhouse, with the press watching, if she did not
    cooperate; Conrad believed that her supervisor was acting on behalf of the FBI; and
    Conrad alleged in her complaint that her supervisor was in fact acting on behalf of
    the FBI. (The court assumed this allegation to be true for purposes of ruling on the
    defendants’ motion to dismiss.) The lack of valid consent to the warrantless search
    meant that there was a Fourth Amendment violation and that if Trulock and Conrad
    had been defendants in a criminal case, evidence secured by the FBI agents in the
    unconstitutional search could not have been used at trial. However, Trulock and
    Conrad were plaintiffs in a civil case in which they sought awards of damages. The
    FBI agents and other FBI personnel who were sued could therefore raise the defense
    of qualified immunity--a potential shield against liability even though the search was
    unconstitutional. Qualified immunity protects government officials against civil
    liability for unconstitutional actions so long as the officials “[did] not violate clearly
    established . . . constitutional rights of which a reasonable person would have
    known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis supplied). The
    Fourth Circuit held that the FBI agents who took part in the search were entitled to
    qualified immunity because the plaintiffs did not allege that those officers knew
    Conrad’s DOE supervisor had made the statements referred to above or that they had
    authorized any such statements by the supervisor. The agents, therefore, would not
    have had reason to believe that Conrad’s consent was involuntary. Management-
    level FBI personnel who had been named as defendants (including the FBI Director)
    were held entitled to qualified immunity for essentially the same reasons.
    Accordingly, the Fourth Circuit affirmed the district court’s decision.
             If Conrad’s consent had been valid, it would have been binding on Trulock
    with regard to the search of the townhouse itself and the examination of computer
    files to which both Conrad and Trulock had access, but not with regard to
    examination of Trulock’s password-protected computer files. Each co-occupant of
    real property (here, the townhouse) presumably has full access to the property--at
    least with regard to common areas. Therefore, either co-occupant’s consent to search
    the property is generally seen as sufficient. By similar reasoning, consent of either
    Conrad or Trulock would be sufficient with regard to examination of computer files
    to which each had access. Any consent by Conrad to search the townhouse and/or
    the computer did not entitle the FBI agents to examine Trulock’s password-protected
    files, however. With Conrad not having access to those files and Conrad not even
    knowing Trulock’s password, Trulock had a reasonable expectation of privacy
    concerning those files. The agents’ examination of the password-protected files thus
    violated the Fourth Amendment. As noted earlier, any evidence uncovered in that
    examination could not have been used against Trulock if he had been a defendant in a
    criminal case. However, his was a civil case in which he sought money damages.
    The court once again concluded that the agents were protected against liability for
    damages by qualified immunity. The court reasoned that because the password-
    protected files aspect of the case was not something that had been addressed
    specifically in earlier cases, the defendants should not be seen as having violated
    “clearly established . . . constitutional rights of which a reasonable person would
    have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis supplied).
    One member of the Court of Appeals wrote a spirited dissent, arguing that the
    unconstitutional character of the examination of the password-protected files should
    have been abundantly clear on the basis of analogous precedents, and that in any
    event, a Department of Justice education manual for government agents had
    accurately predicted that agents’ examination of password-protected files without a
    warrant and without consent would be likely to violate the Fourth Amendment.

11. Yes. The general rule adopted by the federal courts is that a corporation may be held
    criminally liable for violations committed by its employees if they were acting (1)
    within the scope of their employment or within their apparent authority and (2) for
    the benefit of the corporation. This is so even if the employees' acts violated
    corporate policy or express instructions. Thus, because its agents were acting within
    the scope of their employment, AML may be held criminally liable for the unlawful
    practices at RPC. United States v. Automated Medical Laboratories, Inc., 770 F.2d
    399 (4th Cir. 1985).
12. No. The U.S. Supreme Court held that the Sixth Amendment right to counsel is
    “offense-specific.” Cobb’s attorney had been appointed to defend Cobb against the
    burglary charge, not the murder charges. The Sixth Amendment right to counsel
    therefore did not bar the police from interrogating Cobb regarding the murders
without first obtaining permission from Cobb’s attorney. Texas v. Cobb, 532 U.S.
162 (2001).

								
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