2. Mr. Mark Smith was driving on a highway in New York State above 100 miles an hour, where the speed limit was 65 miles an hour. The New York State Motor Vehicle Law states that driving more than 30 miles above the speed limit constitutes a felony within the state. Mr. Smith was pulled over by the New York State patrolman who was alone in his patrol car. You should know that Mr. Smith is African-American, while the patrolman is white.

The patrolman asked Mr. Smith for his driver's license, and the car's registration. Mr. Smith fully cooperated. The patrolman asked Mr. Smith to get out of the car, and properly gave him Miranda warnings, i.e., that he had the right to remain silent; anything he says could be used against him in a court of law; that he has a right to an attorney; and if he could not afford an attorney, one will be provided to him.

As the patrolman continued to speak to Mr. Smith, the patrolman reports that Mr. Smith's breath smelled of alcohol, he was swaying back and forth, his speech was slurred, and upon a taking a breathalyzer test, his blood alcohol was .09 - just above the legal limit, which is .08.

The patrolman told Mr. Smith that he was under arrest, and handcuffed him next to the patrol car, about 20 feet away from Mr. Smith's car. While the patrolman was calling for the assistance of another officer to effectuate the arrest, the patrolman wanted to search Mr. Smith's car for a weapon because he claimed that since the patrolman was alone at that time, Mr. Smith could arguably attack him and gain access to a possible weapon in the car. The patrolman proceeded to force the handcuffed Mr. Smith into his patrol car and locked the patrol car door, while the patrolman proceeded to open Mr. Smiths front car door, which was not locked, finding only a cell phone in the glove compartment facing the front passenger seat.

Without a search warrant, the police officer began looking through the defendants cell phone, and found text messages and photographs which showed that he was an illegal drug dealer.

Mr. Smith was charged with 3 felonies: speeding more than 30 miles above the speed limit, Driving under the Influence of Alcohol, and illegal sale of illegal substances (illegal drugs).

2.a. Mr. Smith's attorney argues in a pre-trial motion that the evidence found in his cell phone should be suppressed (not be allowed to be used as evidence at trial), and therefore the criminal charge of the felony sale of illegal drugs should be dismissed. Under what Amendment to the U.S. Constitution should he make that argument? 4

The exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment.

b. Be more specific about why the cell phone text messages and photographs should be suppressed. 6 points

The Fourth Amendment to the U.S. Constitution prohibits police officers from conducting unreasonable searches and seizures by requiring them to either have a valid warrant or probable cause. In this case the officer conducted an unreasonable search. Evidence can only be suppressed if the illegal search violated the person's own (the person making the court motion) constitutional rights.

c. Suppose you were the judge in this case, how would you decide this pre-trial motion to suppress the evidence of the unlicensed loaded gun, and therefore to dismiss the criminal charge of the illegal sale of illegal drugs? In your decision, discuss a case from the textbook upon which the judge can rely, in order to decide this case. Briefly state the facts of the case in the textbook and how the court decided the case. 10 points

D. Explain one way the case in this test question is different than or similar to the case reported in the text. 5 points