May 2021 1 144 Report
Should Vern’s motion be granted?

Officer Nelson, dressed in plain clothes, walked a foot beat around the neighborhood to try to spot criminal activity. His beat was a high crime area, in which there was an especially large amount of automobile theft. Nelson spotted a red Ferrari pull up and stop at a traffic light. Nelson could tell that the driver was a young black male. Nelson was quite prejudiced against blacks in general, and believed (in this case, quite irrationally) that few young blacks could afford Ferraris and that this Ferrari was likely to have been stolen. (Not only did Nelson not have probable cause for this belief, but his belief would not even qualify as a “reasonable belief based upon objective criteria.”) Nelson went over to the car asked the driver to roll down the window, and said, “Do you know where the nearest used-car dealer is?” Nelson was not in fact interested in getting an accurate answer to this question; he merely wanted to see whether the driver was nervous, whether there were lock-picking tools in the car, or whether there was any other sign of criminal wrongdoing. Nelson was prepared to let the drive on if the driver didn’t want to answer the question. The driver had no idea that Nelson was a police officer. The driver (whose name was Vern) seemed extremely nervous; he tried to drive away, but the car stalled. Nelson saw through the rolled-up window that there was did not seem to be a key in the ignition, but rather a series of loose wired hanging out. At that point, Nelson arrested Vern on charges of car theft. (Assume that by the time Nelson had probable cause to believe Vern had committed this crime.) At his trial, Vern has moved to suppress Nelson’s testimony about what he saw, and any fruit of the subsequent search of the car, on the theory that all stemmed from an initial 4th Amendment violation by Nelson stopping Vern’s car in the first place. Should Vern’s motion be granted?

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