Question Analysis
Polly, a uniformed police officer, (government conduct) observed a speeding car weaving in and out of traffic in violation of the Vehicle Code. (Traffic stop requiring reasonable suspicion not probable cause) Polly pursued the car in her marked patrol vehicle and activated its flashing lights. The car pulled over. Polly asked Dave, (standing and reasonable expectation of privacy) the driver, for his driver’s license and the car’s registration certificate, both of which he handed to her.
Although the documents appeared to be in order, Polly instructed Dave and his passenger, Ted: “Stay here. (No Terry stop and frisk) I’ll be back in a second.” Polly then walked to her patrol vehicle to check for any outstanding arrest warrants against Dave.
As she was walking, Polly looked back and saw that Ted appeared to be slipping something under his seat. (Plain view) Polly returned to Dave’s car, opened the passenger side door, looked under the seat, and saw a paper lunch bag. Polly pulled the bag out, opened it, and found five small bindles of what she recognized as cocaine. (Auto exception requiring probable cause and evanescent search)
Polly arrested Dave (not a search incident to lawful arrest) and Ted, took them to the police station, and gave them Miranda warnings. Dave refused to answer any questions. Ted, however, waived his Miranda rights, (voluntary waiver) and stated: “I did not know what was inside the bag or how the bag got into the car. I did not see the bag before Dave and I got out of the car for lunch. We left the windows of the car open because of the heat. I did not see the bag until you stopped us. It was just lying there on the floor mat, so I put it under the seat to clear the mat for my feet.” (D has no standing to suppress T's statement.)
Dave and Ted have been charged jointly with possession of cocaine. Dave and Ted have each retained an attorney. A week before trial, Dave has become dissatisfied with his attorney and wants to discharge him in favor of a new attorney he hopes to select soon. (The delay could affect T's right to speedy trial)
What arguments might Dave raise under the United States Constitution in support of each of the following motions, and how are they likely to fare:
1. A motion to suppress the cocaine? (#1) Discuss.
2. A motion to suppress Ted’s statement or, in the alternative, for a separate trial? (Right to Confrontation and cross examination violated if D asserts his 5th) (#2) Discuss.
3. A motion to discharge his present attorney and to substitute a new attorney in his place? (#3) Discuss.
Outline
3. A Motion to Discharge His Attorney or Substitute New Counsel