FACTS:

The police department of the town of Cedar Hill anticipated large, potentially disorderly crowds at the local Cedar Hill Mall on “Black Friday,” the first shopping day after Thanksgiving. A larger police presence was warranted to control the crazed shoppers and to prevent thefts in the parking lot.

At 3:00 p.m. on “Black Friday,” police officer Dudley DuRight arrived at the Mall in his police cruiser. With him was his trusty drug-sniffing dog, Snuffy. DuRight parked his cruiser in the Mall parking lot, got out, placed a leash on Snuffy, and let Snuffy out of the back seat. They walked through the parking lot towards the front entrance to the Mall.

On the way to the entrance, DuRight and Snuffy patrolled several aisles of the parking lot, passing many parked cars. Snuffy stopped to sniff the exterior of several cars. As DuRight and Snuffy passed a parked car owned by your client Nell, Snuffy became excited, barked repeatedly, and focused his attention on the trunk of Nell’s car.

DuRight and Snuffy stationed themselves next to Nell’s car. When Nell came walking through the parking lot to find her car twenty minutes later, she found a police officer and a German shepherd waiting for her. DuRight asked Nell for her driver’s license and the vehicle registration, which she produced. They were valid and in good order. Next, DuRight demanded that Nell open the trunk of her car. She did so, and DuRight observed in plain view a clear plastic bag containing a white, powdery substance that appeared to be cocaine. DuRight seized the bag and arrested Nell. The contents of the plastic bag turned out to be cocaine.

Your firm is defending Nell, who is being prosecuted for possession of narcotics. There are several reasons to file a motion to suppress the evidence seized as a result of Snuffy’s “dog sniff.”

ASSIGNMENT:

Assume this matter is controlled by Massachusetts law. Assume also that you are being asked to research one issue for the motion to suppress. Your assignment is as follows:

Conduct legal research and answer this question: Was the cocaine seized from Nell’s car
trunk, following Snuffy’s “sniff,” obtained pursuant to a reasonable warrantless search under
Massachusetts law? You can start by looking at this case: Commonwealth v. Feyenord, 445
Mass. 72, 833 N.E.2d 590 (2005). You can skip the part of the majority decision that discusses
“the sufficiency of the evidence,” but review the concurring and dissenting opinions as well as
the majority opinion. DO NOT limit your research to this one case, however. In answering this
question, explain WHY you answered the way you did (DO NOT simply answer yes or no).
You should cite legal principles found in primary or secondary authorities to support your
answer, but DO NOT simply quote what those authorities say. Explain the legal principles in
your own words. Quotations should be limited to specific legal terms of art or sentences (not
whole paragraphs) that are so direct, dramatic and succinct that no one could explain it any
better. Use the official citation form for any primary binding authorities that you cite in
explaining your answer. Citations for ALL sources should be written according to Bluebook
format.

Explain in detail HOW you conducted your search. What primary and secondary sources
did you consult? Specify which books, encyclopedia, dictionaries, digests, or on-line search engines you used, and how you used them (i.e., search terms, key numbers, topics, etc.).

Check the Feyenord case for more recent decisions. Describe which method you used.
Describe the case history of Feyenord and the case treatment of the rule on “dog sniff” searches in Feyenord, if any. Was there any further appellate review of the Feyenord case? If so, give the official citation. Has the rule stated in that case been overruled or criticized in any later decisions? If so, please state the name and citation for any such decision.

4. Prepare one carefully written and objective case brief for a Massachusetts case other than Feyenord that, in your opinion, provides the most support for, OR the most opposition to, the argument that the search and seizure following the “dog sniff” was improper. The case that you choose to brief does not have to be exactly “on point,” meaning it does not have to fit the exact same fact pattern as Nell’s case. What is important is that you find a case that provides factual or legal support for your argument, and explain clearly why you chose that particular case.

5. You are not required to do so, but you may look for cases from the U.S. Supreme Court, the First Circuit Court of Appeals, or the federal district court of Massachusetts on this issue. You might want to consider such a search if you are having trouble finding a suitable case decided by a Massachusetts court.