HYPOTHETICAL FACTS

Clifton Criminal is a small time crook and swindler. He has been for years. He gets by as a

small time confidence trickster swindling people here and there out of a few thousand dollars

each. But, he has always had a plan. He has always saved 5% of every swindle, every grift,

every small time theft. Years ago he discovered a great little piece of property in the

mountains of Confusion on one of his trips through the state to cheat old ladies out of their

pensions. Finally Clifton has enough to buy that little patch of land (the Clifton Property). The

Clifton Property is landlocked. The seller, John Rambo, also owns the neighboring property

(the Rambo Place) that has access to a county road. Along with the purchase of the land,

Clifton purchases an easement from Rambo. The contract for sale of the easement contains

the following language to describe the easement:

"Rambo grants Clifton a right to cross the west side of the Rambo Place where our logging

road was back in Grandpa's time. Clifton may use the access from time to time to get in and

out of the Clifton property, but no cattle trucks, farm implements, logging trucks or heavy

machinery allowed in and out."

The access is not so much a trail as it is a swath about 20 feet wide where most of the trees

were cleared many years ago. There is not really a clear track or trail or other distinguishing

marking other than the lack of trees. The forrest is quite dense on either side of this cleared

area.

Clifton stays out of trouble with the law, living quietly on the savings he has left from his

conman days. Now that he has settled down he bought a small 4 wheel drive vehicle and he

hires an excavation company to bulldoze a driveway from the county road, across the west

edge of the Rambo Place to replace the poorly marked access he has used for about two

years. Rambo says "No way, that's a foot path. You can't go putting in some super highway to

race your truck in and out!"

Clifton needs some money to hire a lawyer to help him get his driveway access, and, although

he hates to go back to his criminal ways, he figures that he can get away with one last crime.

Clifton knows from his years on the road that it is hard to track his movements if he sneaks

onto an empty freight car and uses the trains to get from place to place. He also wants his one

last big heist to be far away from his cozy new home. With these things in mind he jumps a

freight train to Desperation, State of Disorientation. While in Deseration, Clifton robs the

Second National Bank, figuring that they will have second-rate security. Clifton has never

been violent, and he's never used a gun in his life of small time crime. He figures he ought to

have a gun for the big heist, though, so he borrows an old rusty revolver from a hobo he knows

from the trains. The revolver is quite distinctive but at the time Clifton doesn't think anything of

that.

As Clifton is leaving the bank with his giant bags of cash with "$$" printed on them a security

guard coming back from break surprises Clifton who reflexively pulls the trigger on the gun

firing one round that hits the guard.

Clifton hastens back to the freight train depot and catches a train. Clifton rides various trains

around the country to throw law enforcement off his trail before finally heading to Capital City,

Confusion and then walking the last 100 miles back to his cabin along back roads. As he

approaches his cabin along the easement, however, he realizes that he still has the gun and

stashes it under some bushes and rocks along the path. This bush is within the boundary of

the easement.

Months later, investigators from Kansas think that Clifton was involved in the robbery but they

do not have enough evidence for a warrant. They travel to Confusion to talk to Clifton, using

the recorded deed to his property to locate him. When the two investigators arrive at what they

think is the property (they are actually at the Rambo Place) they turn off the county road and

approach the man they see sitting on the porch of a house. The investigators ask the man,

"Are you Clifton?" The man replies, "Nah, I'm Rambo. I own this place. Clifton's the one back

there to the south of me about three quarters of a mile." Pointing to the easement he says,

"That's Clifton's access over there."

The investigators ask Rambo, "Is it okay if we look around a bit?" Rambo tells them, "Fine by

me. Look all you want to." The investigators walk around the Rambo Place and then begin

walking down the path Rambo described as being Clifton's access. A few hundred yards along

the easement they discover the gun, which they recognize from eyewitness accounts who

described its highly distinctive appearance. The officers seize the gun and wait for Clifton to

return. When Clifton returns Rambo identifies him to the officers and the officers arrest him.

QUESTION: You are now Clifton's court appointed lawyer in the criminal case against

him. The gun is a crucial piece of evidence in the State's case, and if you can get it excluded

Clifton will either get a far better plea bargain or he will go free.

As a criminal defense attorney, you know that the "exclusionary rule" is a judicial mechanism

by which courts remedy law enforcement's unlawful searches by excluding any evidence

related to the unlawful search from the case. This is the application of the fruit of the

poisonous tree doctrine, and excluded evidence will be treated as if it simply does not exist.

Do you have a good basis to seek exclusion of the gun in this case? What arguments will the

prosecutor make that the search was lawful? Arguments will need to be quite specific,

both in the legal concepts you apply and the specific legal authority that you cite and in how

you apply the law to the facts. I remind you that just slinging things at the wall in hopes that

something sticks is not going to work out well. I also remind you that this hypothetical reflects

one of the many intersections of property law and other areas of law.

Your response should demonstrate 1) That you recognize the specific provisions of the

Constitution that apply; 2) That you have a basic understanding of the test for if there has been

a violation of the constitutional provisions as that test has been articulated by

(Colorado) courts; 3) That you understand the property law concepts that will dictate if the

search that turned up the gun was lawful or unlawful, and; 4) That you can apply the property

concepts and the test to the hypothetical facts and reach a well reasoned conclusion about

whether the evidence found during the search (the gun) may be used by the prosecution or if

the gun is "fruit of the poisonous tree" that will be excluded because it was discovered during

an unlawful search.