Criminal Procedure Study Questions PDF

Raphael Trice was charged with assault with intent to commit robbery and illegal possession of a firearm. The government's evidence at trial showed that, just before 2pm on a Sunday afternoon, Earl Green was shot while walking near his residence. Green testified that Trice approached him and demande...

Raphael Trice was charged with assault with intent to commit robbery and illegal possession of a firearm. The government's evidence at trial showed that, just before 2pm on a Sunday afternoon, Earl Green was shot while walking near his residence. Green testified that Trice approached him and demanded that Green "give it up." Trice then shot Green with a shotgun and ran away. Green, who was only grazed by the shot, immediately called 911 and, within minutes after the incident, identified Trice as the shooter. Green explained that he knew Trice from the neighborhood. He even gave the police the address where he was "pretty sure" Trice lived. Green accompanied the police down to the station to provide further information and, while there, an officer showed him a photograph of Trice and said, "Is this the guy who robbed you?" Green said, "Yes, that's him." A short time later, Detective Truman obtained an arrest warrant for Trice and arrested him in his home. While in the home, Detective Truman saw Trice's mother and several small children who apparently also lived in the home. Detective Truman escorted Trice to his police car where he read Trice the Miranda warnings and asked, "Do you want to answer any questions at this time?" and Trice replied emphatically, "No." Detective Truman then asked Trice for his full name, social security number, and whether he had any serious medical conditions. Truman then asked Trice, "I'd like to know where the shotgun is. There are little kids in your house. I don't want anyone to get hurt." Trice responded, "It's okay, I gave it back to the person I borrowed it from." Truman did not ask any more questions. QUESTIONS: 1. At a suppression hearing prior to trial, Trice moved to exclude his answer to the question about the gun, arguing that Detective Truman did not honor his right to remain silent; the trial court should: a. Deny the motion because the question was part of the routine inquiries that are made of suspects, and Miranda was never meant to apply to such an inquiry. b. Deny the motion because Detective Truman scrupulously honored Trice's invocation of his right to silence and immediately turned from investigative matters to administrative ones. c. Deny the motion because Truman's question was reasonably prompted by concern for public safety and was, therefore, within the "public safety exception" to the Miranda rules. d. Grant the motion because, by asking about the gun, Truman failed to honor Trice's right to remain silent, and the public safety exception cannot apply once a suspect is removed from his home. e. Grant the motion because no questions may be asked of a suspect if he insists, as Trice did, on his right to keep silent. 2\. Prior to trial, Trice moved to suppress any testimony related to Mr. Green's identification of his photograph at the police station and any in-court identification of Trice by Mr. Green. The trial court should: a. Disallow both the photo identification and the in-court identification because the photo identification was unnecessarily suggestive, and any in-court identification would be impermissibly influenced by the photo identification. b. Disallow both the photo identification and the in-court identification because Trice's Sixth Amendment right to counsel was not honored. c. Permit Mr. Green to testify as to the photo identification because it was arguably reliable, but disallow any in-court identification because there is some risk of error, and jurors attach too much significance to such identifications. d. Permit Mr. Green to testify about the photo identification and to make an in-court identification e. Permit Mr. Green to make an in-court identification but not to testify about the photo identification \* \* \* Clifford Bogel's brother was murdered in the District of Columbia one day in early June. That very day, Bogel flew from California to the District to make funeral arrangements. Three days later undercover officers saw a man, later identified as Clifford Bogel, run up and shoot a man on the street. Marty, the victim, was shot multiple times and collapsed and died on the sidewalk. The police chased after Bogel, he eluded them briefly, but they eventually captured him and placed him under arrest. At the station house, Detective Gonzalez wanted to question Bogel about Marty's murder and read Bogel the Miranda warnings. Bogel said he did not want to talk "right then." Gonzalez then left the room and did not speak to Bogel again. About one hour later, Detective Parker asked Detective Gonzalez if he could speak to Bogel about the murder of his brother. Gonzalez told Parker that he had read Bogel his Miranda warnings and that Bogel had invoked his right to silence and did not want to talk about the murder case against him. Neither detective had any reason to believe there was a connection between the two murders. Gonzalez then introduced Parker to Bogel, telling Bogel that Parker only wanted to talk to him about the murder of his brother. Gonzalez then left Parker alone with Bogel. Parker told Bogel that he was investigating the murder of his brother and that he wanted to talk to him only about that murder and not the murder that Bogel was charged with. Parker asked Bogel if he had any information about who might have shot his brother. Bogel asked about what others had told the police, and when Parker said no one seemed to know what happened, Bogel then said, "Let me tell you what happened." Bogel then explained his view of who killed his brother, and he went on to make incriminating statements about his involvement in the murder case against him. QUESTION: 3. In the murder case against him, Bogel now seeks to suppress the incriminating statements he made to Detective Parker. Bogel claims the statements were obtained in violation of his Miranda rights. The district court should: a. Suppress the statements because Bogel invoked his right to silence and questioning him again within one hour did not scrupulously honor his rights. b. Suppress the statements because Detective Parker did not rewarn Bogel before he asked him the questions about his brother's murder. c. Suppress the statements because, once Bogel invoked his Miranda rights, further questioning could only take place with Bogel's lawyer present. d. Admit the statements because Bogel evinced a willingness and desire to engage in a discussion with Detective Parker. e. Admit the statements because the questions Detective Parker asked were not interrogation within the meaning of Miranda. QUESTION: 4. At Johnson's trial for murder, the prosecutor plans to introduce Johnson's incriminating statements. Johnson argues that introduction of the statements will violate her Sixth Amendment right to counsel. The evidence is: a. Inadmissible because Johnson did not know she was speaking to an informant and was, therefore, unaware of her right to keep silent. b. Inadmissible because Holloway was acting as an agent of the state and affirmatively induced Johnson to make incriminating statements. c. Admissible because Holloway initiated contact with the police, was acting for her own benefit, and was not an agent of the state. d. Admissible because Johnson did not know she was speaking to an informant and, therefore, was not under any pressure to make the statements. e. Admissible because Holloway was told not to interrogate Johnson, and her failure to follow instructions means the state was not responsible for her behavior, and there was no state action. Assume that the statements from the previous question are inadmissible and that Johnson's husband's body has not been found. At trial Johnson takes the stand and, during her direct examination, testifies that she is innocent and therefore does not know where her husband's body is located. During the State's rebuttal, the prosecutor called Holloway to the stand and asked Holloway to divulge what Johnson had revealed about the whereabouts of the body. QUESTION: 5. Assume that Johnson's counsel objects to the question asked of Holloway. What is the judge's likely ruling on the admissibility of the evidence? a. The testimony is admissible because it is being used to impeach Johnson's credibility. b. The testimony is admissible because the police acted in good faith when they told Holloway not to ask about the crimes and the fact that she did not listen is not the kind of mistake that furthers the purpose of the exclusionary rule. c. The testimony is inadmissible because it is the fruit of the poisonous tree. d. The testimony is inadmissible because the statements did not lead to the body and therefore, the inevitable discovery doctrine does not apply. e. The testimony is inadmissible because the Sixth Amendment violation here, unlike Fourth Amendment violations, occurs when the evidence is admitted at trial. \* \* \* Wisconsin police had probable cause to search a car parked on a public street. They did not have a warrant, although there was no exigency preventing them from getting one. A search of the car netted cocaine and illegal guns, and the owner of the vehicle, Miss Muggle, was charged with drug and gun possession. The Supreme Court of Wisconsin ruled that the search was illegal because there was no warrant. In reaching this conclusion, the Wisconsin high court relied on its interpretation of the Fourth Amendment of the U.S. Constitution and on an analogous provision of the state constitution. The state prosecutor appealed to the United States Supreme Court, arguing that Wisconsin was not free to disregard Supreme Court precedents establishing the "automobile exception" to the warrant requirement, that is, that police, with probable cause may search a car without a warrant. QUESTION: 6.Assuming the Wisconsin prosecutor is correct about the "automobile exception," which of the following statements is the most accurate and appropriate? a. Wisconsin is free to apply its own interpretation of Fourth Amendment requirements so long as it provides greater protections for the criminally accused, not fewer. b. Wisconsin is free to apply its own interpretation of Fourth Amendment requirements unless the Supreme Court chooses to exercise its supervisory power to assure uniformity among the various state court judgments. c. Wisconsin is free to interpret its own state constitution in any way it sees fit so long as the case involves only a local or state prosecution. d. Wisconsin is free to interpret its own state constitution to give greater protections to the criminally accused than those provided by the federal constitution, but Wisconsin must provide a clear statement that that is what it is doing. e. Wisconsin is not free to provide greater or lesser protections than those of the Fourth Amendment. If the Fourth Amendment is applicable to the facts, the State's constitutional provision is preempted. \* \* \* In November seven members of the Del Ray Police Narcotics Squad arrested Steven Matt in his grocery store, Matt's Market. The officers had a valid arrest warrant, but, although they had probable cause to search and were in the process of securing a search warrant, they did not yet have a warrant to search the premises. Because they received credible information that Matt might be armed, the officers entered the store with weapons drawn. The few customers in the store were escorted out, and Matt, who was behind the counter, was seized, handcuffed, and informed of his Miranda rights. With matters in hand, the officers holstered their weapons. The officers then told Matt they would like to search his store and asked for his consent. At first Matt said nothing, and one of the officers said, "Look, you do what you want. We have sufficient information to get a search warrant and will secure one by this afternoon or tomorrow." Matt then said, "I want to talk to my lawyer." He went to a telephone and tried twice, unsuccessfully, to reach his lawyer. After hanging up, Matt said to the officers, "Look I know what you are here for," and led the officers to a stash of marijuana behind the counter. The officers seized the drugs and said, "well, that's nice, but we still want to search the whole store." Matt then agreed to let them search, and they uncovered cocaine in some boxes at the back of the store. Later, while in custody at the police station, Matt was approached for the first time by two officers from the Vice Squad who wanted to question him about a gambling operation they believed he was running out of his store. They administered Miranda warnings, and Matt agreed to talk and made incriminating statements. QUESTIONS: 7.Matt was charged with gambling offenses and, prior to trial, moved to exclude his statements at the station house. He contends that, because the police initiated questioning after he had invoked his right to counsel, none of his statements may be used in the case against him. The district court should: a. Deny the motion because Matt's reference to a lawyer while in the grocery store was an anticipatory invocation of counsel which does not trigger Miranda's right to counsel rules. b. Deny the motion because the officers who questioned Matt about the gambling offenses did not know he had invoked his right to counsel in the grocery store. c. Deny the motion because the officers who questioned Matt about the gambling offenses reread him his Miranda rights and secured a proper waiver. d. Grant the motion because Matt had invoked his right to counsel, and, as a result, the police were not permitted to reinitiate questioning unless counsel was present. e. Grant the motion because police had an affirmative duty to clarify whether Matt was seeking a lawyer in connection with the search of his store or whether he was seeking a lawyer for all of his dealings with the police. 8\. Matt also faces drug charges in connection with the cocaine found in his store. He has moved to exclude the admission of the drugs, arguing that he never voluntarily gave consent for a search. The district court should: a. Grant the motion because the officer's statements about getting a warrant rendered any consent invalid. b. Grant the motion because, once Matt said he wanted a lawyer, consent could not be valid until a lawyer was present, or at least until Matt had an actual opportunity to consult with a lawyer. c. Grant the motion because, once a person is in custody, he is rendered unable to give voluntary consent. d. Deny the motion because the officers did not threaten or deceive Matt; they had probable cause to obtain a search warrant, and were, in fact, in the process of obtaining the warrant. e. Deny the motion because Matt had been Mirandized and, therefore, knew that he did not have to say anything to the police, give consent, or say anything at all. \* \* \* In the early morning hours of a December day, officer Kay Vincent spotted Alex Reuben speeding down Highway 22. After pulling him over, the officer approached the car. She smelled alcohol on his breath and observed that his eyes were glazed and bloodshot and that his face was flushed. Officer Vincent asked Reuben where he was coming from, and he answered, "The Flamingo Bar, up the road there." Officer Vincent then asked Reuben to exit the vehicle and to perform several standard sobriety tests, such as lifting one leg and walking heel to toe in a straight line while counting each of the paces. Reuben performed these tests poorly and told the officer it was because he had been drinking. Officer Vincent then handcuffed Reuben and transported him to a county Detention Center where all proceedings were routinely videotaped. Reuben had not been given any Miranda warnings. At the Detention Center, Officer Vincent asked Reuben for his name, address, height, weight, eye color, date of birth, and social security number. Reuben provided the information but stumbled over several answers. Officer Vincent then asked Reuben to perform sobriety tests similar to those he performed at the initial roadside stop and also asked him to count from one to thirty. Reuben performed poorly and, while doing so, commented about his state of inebriation. It was then that Officer Vincent advised Reuben of his Miranda rights. Reuben signed a statement waiving his rights, but then declined to answer any questions. At Reuben's trial for driving under the influence of alcohol, the government sought to admit into evidence the videotape of the proceedings at the Detention Center together with the arresting officer's testimony that Reuben failed the roadside sobriety tests and all of Reuben's incriminating statements. QUESTION: 9.Reuben sought to exclude all of the statements he made prior to receiving Miranda warnings and all videotaping of the proceedings at the Detention Center. The district court should: a. Exclude all of the statements and the video because Reuben was not free to leave once his automobile was pulled over, and therefore, all of his responses were obtained in violation of Miranda. b. Admit all of the statements but exclude the video because Reuben was not advised that his actions and statements were being recorded. c. Admit all of the statements and the video. d. Exclude only Reuben's response to the request to count from one to thirty because, at that point, Reuben was in custody, had not yet been Mirandized, and the question called for a testimonial response. e. Exclude only Reuben's response to the roadside question, "Where are you coming from," because, unlike the other questions and information, this interrogatory was neither a booking question nor a non-testimonial display of physical characteristics. \* \* \* Robin Tiefer suffered bouts of mental illness. At particularly acute periods, she experienced hallucinations, heard voices, and became delusional. During these periods, she might appear quite normal, oriented to time and space, although sometimes she might also appear subdued or agitated. During one of her periods of illness, she became convinced that she was compelled by a vengeful god to follow divine instructions. Following these instructions, she walked into the third precinct station house and told the desk sergeant that five years ago she murdered her newborn baby, incinerated the remains, and sprinkled the ashes in her garden. The sergeant was astounded. He asked Ms. Tiefer to sit down, and he proceeded to ask her questions about the crime. Ms. Tiefer appeared coherent and rational. She provided details of the event, and at the conclusion of her account, the sergeant said, "Well, I'm going to have to arrest you, Ma'am." The sergeant placed her in a cell and, 15 minutes later, Detective Johnston arrived and told Ms. Tiefer that he wanted to ask her some questions. He read her the Miranda warnings, and asked her if she was willing to waive her rights. She said, "Yes, I am here to do god's will." She then answered questions, again confessing to the murder of her child. At a hearing to determine the admissibility of her incriminating statements to the sergeant and the detective, uncontradicted expert testimony established that, at the time she spoke to both officers, she was in a psychotic state and suffering from serious mental illness. The medical experts explained that Ms. Tiefer suffered from "command hallucinations" which interfered with her volitional abilities and disabled her from making free and rational choices. They also testified that she was so detached from reality that she could not understand the rights she had when she was advised that she could remain silent, her words could be used against her, or that she was entitled to have the presence of a lawyer. QUESTION: 10.The defendant has moved to exclude all of her statements. The district court should: a. Grant the motion in its entirety because Ms. Tiefer was acting involuntarily and the use of any of her statements would violate Due Process of law. b. Deny the motion in its entirety because none of the problems Ms. Tiefer was experiencing were caused by the police and, there was, therefore, no state action. c. Grant the motion but only with respect to the statements made to the sergeant because Ms. Tiefer was questioned by the sergeant before she was advised of her Miranda rights. d. Grant the motion but only with respect to the statements made to the detective because Ms. Tiefer did not validly waive her Miranda rights. e. Grant the motion but only with respect to the statements made to the detective because Ms. Tiefer was never advised that the statements she made to the sergeant were inadmissible, and she may have agreed to answer the detective's questions because the "cat was already out of the bag." Police Officers responded to a radio broadcast about a forcible theft of a wallet from Rye Allen, the victim, who provided a description of the suspect. They stopped a car driven by Leland Jordan who matched the description of the robber. In the car, the police found the stolen wallet, a knife, and a gun. In the preceding weeks and in the same general vicinity, there had been a series of robberies at gas stations, cash machines, and restaurants. Jordan was formally charged with one count of robbery in connection with the forcible theft of Rye Allen's wallet, arraigned on that charge, and released on bail. Shortly after his release, the prosecutor in the case sought a court order directing Jordan to appear in a line-up. His attorney was also notified, and she appeared with her client on the appointed day. Jordan was placed in a line-up with five other men who resembled him in appearance but were all somewhat shorter. Jordan's attorney objected vigorously and insisted that the police find other participants who were of the same height. The police officers told her "to pipe down," and called in, one at a time, Rye Allen and the nine other persons who had been robbed in other incidents. The witnesses were told to take their time and simply indicate that they had made an identification or they had not. After all nine had separately viewed the lineup, the line-up participants, including Jordan, were excused, and the witnesses were asked to remain so that the police could talk to them at greater length. Jordan's attorney insisted that she be allowed to remain to observe the conversations with the witnesses. The police refused, and she was ordered out of the room. Most of the witnesses, including Rye Allen, made a positive identification of Jordan. Jordan was subsequently charged with six counts of robbery, one involving the wallet and five involving some of the earlier incidents. At his trial, his attorney objected to the introduction of the pretrial identifications, claiming a violation of Jordan's Sixth Amendment right to counsel. The trial court denied the request to suppress the pre-trial identification evidence and also denied defense counsel's request to introduce expert testimony from a professor of psychology regarding the reliability of eyewitness identifications. Jordan was convicted of all counts and has appealed. QUESTIONS: 11. Regarding Sixth Amendment challenge to the admission of post-charge line-up identification evidence generally: a. If the police do not permit the defendant's attorney to attend the line-up procedure, the admission of the line-up identification and any in-court identification are per se impermissible. b. If the police do not permit the defendant's attorney to attend the line-up procedure, the admission of the line-up identification and any in-court identification will nevertheless be admissible if the government proves them to be reliable. c. If the police do not permit the defendant's attorney to attend the line-up procedure, the admission of the line-up identification is per se impermissible, but an in-court identification may be allowed if the government proves by clear and convincing evidence that there was a reliable basis, apart from the line-up, to make the in-court identification. d. If the police do not permit the defendant's attorney to attend the line-up procedure, the admission of the line-up identification and the in-court identification will nevertheless be allowed unless the defendant proves that both are substantially likely to lead to mistaken eyewitness identification. e. If the police do not permit the defendant's attorney to attend the line-up procedure, the line-up identification will be automatically excluded, and an in-court identification will be permissible only if a new line-up is conducted in front of the jury under the trial court's supervision. 12.Regarding Jordan's motion to exclude the line-up identification evidence as a violation of his Sixth Amendment right to counsel: a. The motion should have been granted because Jordan's attorney was not permitted to remain for the discussion between the police and the witnesses. b. The motion should have been granted because Jordan's attorney identified flaws in the line-up procedures (the relative height of the defendant compared to the other participants), but her objections were ignored. c. The motion should have been denied because Jordan's attorney was present to observe the confrontation of the defendant with the witnesses, and the right to counsel does not apply to witnesses' interviews after the line-up. d. The motion should have been denied because no right to counsel had attached to any of the charges Jordan faced. e. Even if Jordan's right to counsel had been violated in part, the motion should have been denied because, at trial, a full opportunity to conduct cross-examination would disclose any improprieties that occurred. 13\. Regarding the trial court's exclusion of defendant's expert who would have testified about the reliability and unreliability of eyewitness identifications: a. On appeal, the trial judge's ruling will not be overturned unless it was an abuse of the court's discretion. b. On appeal, the trial judge's ruling is not subject to reversal because only the trial court could evaluate the witness's demeanor and determine whether her testimony would confuse the issues and mislead the jury. c. On appeal, the trial judge's ruling must be reversed because due process recognizes the right of a defendant to introduce such expert testimony in any case where identification is a critical part of the case against him. d. On appeal, the trial judge's ruling may be reversed if the appellate court concludes, on a de novo review, that the expert's testimony would have assisted the jury in deciding the identification question. e. On appeal, the trial judge's ruling on the admissibility of expert identification testimony is always considered harmless. \* \* \* After months of thorough investigation, the Pontiac Police Department developed probable cause to believe that Dr. Mathis, the President of an "educational" non-profit, was funneling tens of thousands of dollars in drug proceeds through his non-profit. Although the paper trail was difficult to establish, the police obtained evidence that Dr. Mathis was involved with a violent gang widely known to control cocaine distribution channels and that he had the financial acumen to make the money appear legitimate. The police, while investigating, also noticed an unusual amount of foot traffic in and out of Dr. Mathis's house at odd hours throughout the day. After determining that enough reliable evidence was presented to her, the Magistrate issued a search warrant of Dr. Mathis's home, specifically noting that Dr. Mathis was to be arrested should he be present at the time of the search. The warrant targeted twenty separate categories of documents and things, focusing the search of the residence on evidence of money laundering, tax evasion, and documentation of the cocaine sales. At 10:00 am on July 19, 2010, officers went to execute the warrant. They knocked, announced their presence, but nobody responded. Within minutes, the law enforcement officials knocked down the door with a battering ram, scaring Dr. Mathis's wife Janet and his daughter Melissa. Officer Langley, pointing his gun, ordered Janet and Melissa to "get down" immediately and placed them both in handcuffs. The officers proceeded to conduct a quick sweep of the home, after which Officer Langley displayed the warrant. Janet and Melissa remained in handcuffs for nearly three hours while the authorities scoured the premises. They were, however, permitted to use the restroom when needed. At the conclusion of the search, the officers seized two computers and six boxes of documents, leaving Janet with a copy of the warrant and a written inventory of the items seized. Janet was ultimately implicated and charged with violating a multiplicity of drug and tax laws. QUESTION: 14. Prior to Janet's trial, she moves to exclude the items seized during the search of her home. What is the most accurate and appropriate ruling on Janet's motion? a. The motion to suppress will be denied because the police used reasonable force in entering the house. b. The motion to suppress will be granted because the police did not allow enough time to pass before knocking down the door with a battering ram. c. The motion to suppress will be denied because the warrant was sufficiently particular in the items sought. d. The motion to suppress will be granted because the officers were only looking for documents. e. The motion to suppress will be denied because the manner of entry and the detention of Janet and Melissa were reasonable. \* \* \* Michael Chase was the founder and executive director of The Chase Foundation, a major national charitable organization which collected money for veterans, homeless families, and sick children One day FBI Agent Roemer received an anonymous telephone call from a man identifying himself as "someone within the executive ranks of the Chase Foundation." The caller said that Chase was skimming money from the Foundation and using it for his own purposes, and then hung up. Two weeks later Agent Roemer received another call from the same anonymous person. The caller, sounding indignant, said, "Why haven't you done anything about that thief Chase? He's taking money from really needy folks and you're letting him get away with it." Struck by something in the caller's voice, Agent Roemer decided to do some investigating. She went to the Chase Foundation and talked to various officers, but she was unable to uncover anything. She then went to Chase's house and observed that it was quite grand, with manicured lawns and two luxury automobiles in the driveway. Agent Roemer decided that further investigation was required and, so, prepared an application for a warrant to search Chase's business office and his home for any documents "related to fraud by wire and mail fraud." The application referred to and included two documents, Attachment A and Attachment B. Attachment A described in detail the address, description, and location of Chase's office and his home. Attachment B described the categories of information to be seized as "Records, documents, computer disks, financial records, receipts, and banking and any other financial instruments related to fraud by wire and mail fraud," and it referred to an affidavit by Agent Roemer. The affidavit described the two anonymous calls, the agent's visit to Chase's house, and stated in relevant part, "Affiant does believe that evidence of fraud in the administration and finances of the Chase Foundation will be found at the office of Mr. Chase and at his residence and that such evidence will disclose violations of the federal wire and mail fraud statutes." Without hearing oral testimony, the Magistrate issued a search warrant to search the locations described in Attachment A and to seize the items identified in Attachment B. Through inadvertence, the affidavit was not physically attached to the warrant. QUESTION: 15. Several agents executed the warrant and thoroughly searched Chase's office and home and recovered 17 boxes of written materials which did disclose fraudulent activities and resulted in Chase's indictment on multiple counts of fraud. Before the trial court, Chase unsuccessfully moved to exclude the information seized in the search. He then entered a conditional plea of guilty, reserving his right to appeal the adverse ruling on his motion to suppress. On appeal, the appellate court should: a. Uphold the trial court's ruling because whatever deficiencies existed in the warrant were excusable under the "good faith exception." b. Uphold the trial court's ruling because the Magistrate's decision to grant the warrant was not without some foundation and, therefore, substantial deference must be given to her judgment. c. Reverse the trial court's ruling because the affidavit was not actually made a part of the warrant and, without it, the basis for the search did not rise to the level of probable cause. d. Reverse the trial court's ruling because the trial court lacked a substantial basis for concluding that probable cause existed and the warrant was hopelessly overbroad. e. Reverse the trial court's ruling because the Magistrate took no oral testimony on the application for the warrant and was simply a "rubber stamp." \* \* \* Officer Knight noticed a van with a broken tail light and legitimately signaled it to stop. After checking the driver's license and registration, Officer Knight gave the driver a warning, told him he was free to leave, and began to walk away. Almost immediately, however, the officer turned back toward the driver and politely asked if he was carrying any guns or drugs. The driver said no, and Officer Knight then asked, "Well, do you mind if I search the car?" The driver turned to the other passengers in the vehicle and whispered something the officer could not hear. The driver then exited the vehicle. Officer Knight noticed a large bulge in the driver's pocket, which he appeared to want to conceal. Officer Knight then frisked the driver and noted that the bulge felt like a weapon. The officer instructed the driver to empty his pocket. At first the driver emptied the other pocket, but when Officer Knight repeated his order, he finally displayed the object---a pipe containing marijuana residue. QUESTION: 16. Prior to trial on a possession of marijuana charge, the driver moved to suppress the evidence of the pipe and the drug contained within it. The trial judge should: a. Deny the motion because the officer lawfully stopped the driver and developed a reasonable suspicion that he was armed and dangerous. b. Deny the motion because once a vehicle is lawfully stopped, a police officer may, in the interest of safety, conduct a protective frisk of any occupant who exits the vehicle. c. Grant the motion because, once Officer Knight told the driver he was free to leave, the original encounter was over; the subsequent questioning about guns or drugs amounted to an unjustified temporary detention, and the evidence derived from this unlawful stop was inadmissible. d. Grant the motion because there was no evidence that the driver was involved in criminal conduct, and a frisk is improper unless an officer has reasonable suspicion that a person is armed and dangerous and is involved in criminal conduct. e. Grant the motion because an officer may not frisk a person when there is no duty, as under these facts, for the officer to be in that person's presence. \* \* \* Yasmin and Betty were driving down Route 66 in Yasmin's red pick-up truck. They were headed to the beach and had thrown their bags in the open flatbed back of the truck. Each had a large canvas duffel bag with her name flamboyantly embroidered on each side. Officer Brig stopped the truck after seeing it sway across the center line of the highway. Upon approaching the vehicle, Officer Brig smelled the odor of marijuana coming from the cab of the truck. He asked Yasmin and Betty to step out of the vehicle, took down their names, and directed them to stand apart, each one positioned at one of the truck's front headlights. Officer Brig then visually inspected the interior of the cab and opened and examined containers, such as a toolbox and a can of tennis balls. He found nothing to account for the marijuana smell. He then approached Yasmin and asked for her driver's license and registration. Yasmin appeared nervous and said, "Well I suppose you have your suspicions. Let me just admit that, yes, I had been smoking a marijuana joint, but I tossed it out the window just before you pulled us over. I don't want any trouble and Betty here is a good kid---she's never even tried a joint." Hearing this, Officer Brig looked again inside the cab and then went to the back of the truck. He began feeling the outside of the canvas bags, pressing and manipulating the contents. With Betty's bag, he pressed and pushed the outside of the bag so thoroughly that he was sure he felt a brick of marijuana. He then opened Betty's bag, retrieved a brick of marijuana, and arrested both women for possession of marijuana. QUESTION: 17. Prior to her trial on possession of marijuana Betty moves to suppress the brick of marijuana. The trial court should: a. Grant the motion because Officer Brig's manipulation of the bags amounted to a search, and although he had probable cause to search the cab and the containers within, he lacked probable cause to believe he would find evidence of a crime in the bags in the open flatbed back of the truck. b. Grant the motion because, although Officer Brig may have had probable cause to search Yasmin's belongings, either in the cab or the flatbed back, he had no probable cause to search Betty's possessions which were plainly marked with her name. c. Deny the motion because Officer Brig had reasonable suspicion to believe there were drugs in the vehicle, and his manipulation of the canvas bags was in reasonable proportion to the level of suspicion and the minor intrusion it involved. d. Deny the motion because the smell of marijuana and Yasmin's admission gave the officer probable cause to believe there was marijuana in the truck, and he was entitled to search all containers that could contain it. e. Deny the motion because, once Yasmin and Betty put their bags in the open flatbed area of the truck, anyone could have handled them and, so, neither of them had any expectation of privacy related to Officer Brig's touching or feeling of the outside. A man placed a 911 call to police headquarters and reported that a 19-year-old African American male named "Lucky" had raped and murdered a female. The caller said that the victim's body could be found in the basement at 1704 N. 37th Street, a residence the caller described as "a drug house." The caller identified himself as "Anthony Carter" and stated that he lived "in the neighborhood." Two police officers immediately traveled to 1704 N. 37th Street. The building was a duplex with upper and lower units. The lower unit was 1704. Standing in front of the building was a young African-American male calmly holding a dog on a chain. The street was quiet. The man identified himself as Clarence Richardson and said he lived in unit 1704. The police officers explained to Richardson that they had received a 911 call reporting a murder. Richardson told the officers that nothing was going on and that "it's just another crank call from my nutty neighbors." Richardson then turned to take his dog inside the residence. The police officers instructed him to secure the dog on the porch because they needed to search the residence. As one officer put it, "Well, Mr. Richardson, we have to go on what we know. All we know is that we got a report of a murder and a body at this address, and we have to check it out to see if someone is dead or needs assistance. Sometimes victims are still alive so we have to check." The police entered the front door, looked in the bedroom and other areas of the 1st floor and then proceeded to the basement. Eventually they searched the entire house. They did not have a warrant. Throughout the house, the police saw illegal drugs and weapons. They did not find a female murder victim. QUESTION: 18. Based on the discoveries in the house, Richardson was charged with various narcotics and firearms offenses. Prior to trial, Richardson filed a motion to suppress all evidence gathered during the warrantless search of his home. The trial court should: a. Grant the motion because the report described the person as already dead, and there was no emergency need to enter the home without a warrant. b. Grant the motion because the officers had an alternative to a warrantless entry, namely, they could have ordered Richardson and anyone in the house to come out and then secured the premises until a warrant was obtained. c. Deny the motion because, in the circumstances, it was reasonable to believe that a person was dead or near death and to search for the victim on the premises. d. Deny the motion because, although anonymous calls may not furnish a reasonable basis to justify an emergency warrantless entry, once an individual gives his name, police and other emergency personnel are duty-bound to act immediately. e. Deny the motion because the police officer's comment to Mr. Richardson showed that they viewed the situation as an emergency requiring an immediate response. Argonne Chemical Inc. manufactures and packages veterinary drugs. Food and Drug Administration Agents inspected Argonne several times over the last eighteen months to insure compliance with federal food and drug statutes. The FDA agents cited Argonne for several deficiencies. A month after the last inspection, FDA agents secured an administrative order for the seizure of various drugs alleged to violate the food and drug statutes. Relying on this order, the agents went to Argonne and seized over \$100,000 worth of veterinary drugs from Argonne's premises. The federal food and drug laws prohibit the adulteration or misbranding of any drug, whether for humans or animals. Virtually every phase of the drug industry is heavily regulated, from packaging, labeling, and certification of expiration dates, to prior approval before new drugs can be marketed. Strength, quality, and purity of drugs are extensively monitored. Manufacturing practices for the preparation of human and animal drugs are set forth in detail, and drug manufacturers must comply with detailed reporting and filing requirements. The federal food and drug laws identify various substantial interests to support close monitoring of the drug industry, and the laws provide for unannounced inspections of manufacturing plants and processes and for the swift seizure, pursuant to administrative orders, of misbranded drugs and their removal from the stream of commerce. Regulations governing seizure require that FDA officers file a verified complaint, under oath, describing with particularity the property that is to be seized and to file the complaint with the clerk of a federal district court, and serve a copy on the manufacturer at the time of seizure. QUESTION: 19. The FDA has now brought a condemnation action against the seized drugs, and Argonne has appeared to contest the constitutionality of the seizure. In deciding whether the seizure violated the Fourth Amendment, a court should conclude that: a. There was no violation of the Fourth Amendment because the Fourth Amendment does not apply to routine inspections of commercial premises; such inspections "touch at most upon the periphery of the important interests safeguarded \* \* \* against official intrusions." b. There was no violation of the Fourth Amendment because inspections of commercial premises, if routine and performed by government actors other than the police, do not require a warrant. c. There was no violation of the Fourth Amendment because drug manufacturing is a highly regulated industry and the government's substantial interest in assuring properly manufactured and labeled drugs is furthered by the inspection program which provided an adequate substitute for a warrant. d. There was a violation of the Fourth Amendment because even if, under the circumstances, a routine regulatory inspection need not proceed with a warrant, any seizure of items, as in this case, did require a warrant. e. There was a violation of the Fourth Amendment because the FDA agents had previously inspected and noted the items they wanted to seize; their return over a month later demonstrates that there was no emergency and no reason why a warrant could not have been obtained. \* \* \* Police have painstakingly put together enough information to arrest Dart Vander for murder. The police first developed basic information about the crime and, with the help of eyewitnesses, put together a description of the suspect. One witness said he knew the person as "Dodie or Dart Vander." Armed with this information, the police then went to the department of motor vehicles and learned that a person named Dart Vander and meeting the suspect's precise description lived at 2099 Mission Avenue. The police took all of their information to a magistrate and secured an arrest warrant for Mr. Vander. Warrant in hand, they immediately traveled to 2099 Mission Avenue. Once at the address, the police saw windows boarded up and high weeds growing on the front lawn. Although it was early evening, the house appeared dark. The police went to a neighbor's house to ask whether 2099 Mission was the address of one Dart Vander. The neighbor said, "Yes, that's his house. No one has seen him since about two months ago when he piled some stuff in his car and drove off. Are you officers here about the weeds, it's a terrible eyesore---we called a couple of times to complain." The officers said no and walked back to the house at 2099 Mission. They tried the door, but it was locked. They knocked loudly several times and called out, "Police, open up!" After a few minutes, they used a crowbar to break down the door. They entered the house, searched for Mr. Vander but found nothing but drug paraphernalia and a small amount of cocaine on the kitchen table. QUESTION: 20.Later Mr. Vander was arrested and charged with drug offenses related to the items found at 2099 Mission. He moves to suppress all of it. The trial court should: a. Exclude the evidence because the police used too much force in gaining entry into the house. b. Exclude the evidence because the police lacked a reasonable suspicion to believe that Mr. Vander was in the house. c. Exclude the evidence because the police violated Mr. Vander's reasonable expectation of privacy in gaining access to his driver's license information without a warrant. d. Admit the evidence because the police knocked, announced their presence, and waited for the suspect to appear before forcing open the door. e. Admit the evidence because the police were acting in good faith under the authority of a warrant issued by a magistrate. \* \* \* Two uniformed police officers encounter Marcella as she alights from a train. The officers walk alongside of her as she travels down the concourse. One of the officers says, "hi," identifies himself, and then asks her some questions including whether she is carrying any guns or illegal drugs. When she answers "no," they then ask whether they can search her luggage. QUESTION: 21. Which of the following additional facts will best strengthen the conclusion that consent to search, if given, was voluntary? a. Marcella was informed of her right to refuse consent. b. Marcella was a college graduate. c. The encounter took place in a well-lighted, public area with other persons present. d. Only one officer was present when the request to search was made. e. The police and Marcella were all of the same race and ethnic background. Police officers have set up a surveillance of Cruella's house. She is wanted for dog napping and other crimes. Cruella's partners in crime have turned themselves in and provided physical evidence and their own statements implicating her as the leader. At one point Cruella returns home and appears to be inside for the evening. She is completely unaware that the police are nearby. Officer Dithers decides he does not want to go through the headache of getting a warrant and, together with several other officers, enters the house and arrests Cruella. While in the house, Officer Dithers reads Cruella her Miranda rights and asks several questions about the dognapping scheme. Cruella makes several incriminating statements. Once outside of the house and while in a waiting cruiser, Cruella is again given Miranda warnings and again, in response to police questions, incriminates herself. QUESTION: 22.Which of the following statements is the most accurate and appropriate? a. The statements inside the house are inadmissible as a fruit of the illegal arrest; the statements made in the cruiser are admissible. b. Both the statements inside the house and the statements made in the cruiser are inadmissible; both are products of the illegal arrest and the effect of that illegality was not cured by a fresh set of Miranda warnings. c. Both the statements inside the house and the statements in the cruiser are inadmissible because Officer Dithers did not act in good faith; he knew of the need for a warrant and purposefully elected not to get one. d. The statements inside the house are inadmissible as a fruit of the illegal arrest; the statements made in the cruiser may or may not be admissible depending on whether a court determines that the effect of the illegal arrest carried over to what took place in the cruiser. e. Both the statements inside the house and the statements made in the cruiser were voluntary and, therefore, both are admissible. \* \* \* Because of several anonymous calls to police headquarters, the police suspected that Johnny, 21 years old and living at home with his parents, was responsible for the murder of a 13 year old boy named Emory. Two officers went to Johnny's house and, being admitted by Johnny's father, told the father that they had come to talk to Johnny about the murder of Emory. They falsely told the father that they had conclusive evidence, including fingerprints, linking Johnny to the crime. The father then hollered to his son to come down from his room. No sooner had Johnny entered the living room than his father began beating him. As the police looked on, the father punched him and slapped him screaming, "You Killer! You no good bum!" The son then screamed---"No, no, no! Dad, wait, it was an accident. I can explain!" At that point, the officers pulled Johnny away from his father and placed him under arrest. Once at the police station, the officers placed Johnny in an interrogation room and read Johnny his Miranda rights. Eventually, the police obtained a full written confession from Johnny. QUESTIONS: 23. Assume Johnny's lawyers file a motion to exclude Johnny's statements at home. The strongest argument in support of such a motion is. . . a. The statements are inadmissible because Johnny was never given an opportunity to invoke his Miranda rights. b. The statements are inadmissible because the police obtained consent to enter the home on false pretenses. c. The statements are inadmissible because the police had no probable cause to pursue Johnny at his home, and all of the statements were a product of that illegality. d. The statements are inadmissible because the police lied about the evidence they had against Johnny. e. The statements are inadmissible because they were coerced by the father whom the police effectively used as their agent. 24.Assume the statements in the house were excluded, which of the following statements is the most accurate and appropriate? a. The giving of Miranda warnings at the police station was not sufficient in itself to break the chain between the in-house statements and the police station statements. b. The giving of Miranda warnings at the police station was sufficient to break the chain between the in-house statements and the police station statements. c. The giving of Miranda warnings at the police station could cut off the connection between the in-house statements and the police station statements but only if the police warned Johnny that his in-house statements could not be used against him. d. The giving of Miranda warnings was unnecessary both at the house and at the police station because volunteered statements are always admissible. e. The giving of Miranda warnings was sufficient to break the chain between the in-house statements and the police station statements because the in-house statements were subject to interpretation and the "cat was not really out of the bag." Jackie is arrested on a valid arrest warrant, brought to the police station, placed in an interrogation room, and advised of her Miranda rights. She responded, "Well, okay, I guess I'm in trouble. I understand my rights; I just hope my Dad gets me a good lawyer." The police then told Jackie, falsely, that they had her fingerprints on the murder weapon and an eyewitness who would identify her as the killer. Jackie sat for almost an hour responding only to three questions and even then, only with a nod or a one word response. The officers, growing impatient, went over their "evidence" again and told Jackie that her only hope of leniency, if any, was to make a full confession then and there. This sequence was repeated two more times until Jackie asked for a pen and paper and began scribbling a full confession. QUESTION: 25. Before trial, Jackie moves to suppress her confession. How should the trial court decide? a. The confession is inadmissible because the police continued to question Jackie after she invoked her right to an attorney. b. The confession is admissible because none of Jackie's constitutional rights were violated. c. The confession is inadmissible because Jackie, through her actions, evinced a desire to remain silent and the police did not scrupulously honor Jackie's desire to remain silent. d. The confession is admissible because there was no police interrogation; the police merely advised Jackie of the situation she faced. e. The confession is inadmissible because, given the totality of the circumstances, the police signaled to Jackie that they were going to continue their questioning until she responded. \* \* \* Bugsy has learned that she is the target of a grand jury investigation into a securities fraud scheme. She promptly retains counsel. Thereafter, Bugsy calls the government lawyer and the detectives working on the investigation and tells them: "I know what is going on, and here's a flash for you: I have a lawyer, and I don't want nobody asking me questions without my lawyer, see?" Several weeks later, the detectives arrange for Ella, a friend of Bugsy's who has now turned government informant, to elicit incriminating statements from Bugsy concerning the securities fraud scheme. Ella is wired for sound and, during the course of several conversations with Bugsy, tapes incriminating statements about the securities fraud scheme. This additional evidence was then made available to the grand jury. The government now wishes to use those statements against Bugsy in a criminal prosecution for securities fraud. QUESTION: 26.Which of the following statements is the most accurate and appropriate? a. The statements are admissible because neither Fifth nor Sixth Amendment rights were violated. b. The statements are admissible because neither the Fifth nor Sixth Amendment protect a person from a "false friend." c. The statements are inadmissible because the government surreptitiously secured the incriminating statements about securities fraud knowing that Bugsy had retained an attorney on the securities fraud matter. d. The statements are inadmissible because Bugsy's Fifth Amendment privilege not to incriminate herself before the grand jury was circumvented by Ella's acting as a transmitter of her words. e. The statements are admissible because Ella was only an "ear"; she simply had a conversation with Bugsy and did not deliberately elicit the incriminating information. \* \* \* Police developed probable cause to arrest Simone for theft. They also had probable cause to search her home for the stolen item, namely a valuable pendant inscribed, "To Fifi, with love." Police secured a search warrant but elected not to get an arrest warrant. Police went to Simone's house, and upon knocking and announcing themselves, let themselves in after no one answered the door after several minutes. Inside, the police saw an individual seated on the living room sofa listening to music through headphones. Police approached, explained their presence, and immediately arrested Simone when she identified herself. One officer then searched her and found the pendant inside her pants pocket. Another officer searched the area around the living room sofa and recovered an unregistered gun in a closed drawer of the coffee table. QUESTIONS: 27. Simone is charged with theft of the pendant and illegal possession of a gun. Prior to her trial, she moves to exclude both items as evidence. Which of the following statements is the most accurate and appropriate? a. The motion should be denied because a search warrant permits a search of every place, including persons and closed drawers, where evidence identified in the warrant might be found. b. The motion should be denied because the pendant and the gun were seized pursuant to a valid search incident to arrest. c. The motion should be granted because the police should have had an arrest warrant to arrest Simone in her own home, and all of the seized evidence was derivative of that illegality. d. The pendant was properly seized pursuant to the search warrant but, once the police found it on Simone, they were not permitted to search any further. e. The motion should be granted because police behaved unreasonably by entering the home without consent or before waiting a longer period for someone to answer the door. \* \* \* Assume that, in the question above, when the police entered Simone's house, Simone was seated next to her friend, Raul. Raul was a very good friend and planned to stay the night. After police found the unregistered gun in the coffee table drawer, they also arrested Raul. The police then searched the adjacent rooms. They found Raul's shaving kit in an upstairs dresser bureau and, inside the shaving kit, was a plastic bag containing marijuana. 28\. Raul is charged with possession of an unregistered gun and marijuana. Prior to trial, he moves to exclude the gun and the marijuana. Which of the following statements is the most accurate and appropriate? a. Both the gun and the marijuana will be excluded because the police had no probable cause to connect Raul to the gun and no basis to conduct a search of the adjacent rooms. b. Both the marijuana and the gun will be excluded because the warrantless arrest of Simone in her own home was unlawful and all other actions were derivative of that illegality. c. The gun will be admissible as a lawful search incident to the arrest of Simone, and its close proximity to Raul and Simone gave probable cause to arrest both; the marijuana will be excluded because the police had no basis to conduct a search of the adjacent rooms. d. Neither the gun nor the marijuana will be excluded because, although Raul may have planned to stay the night, he had not yet done so and, thus, had no standing to complain of any search inside Simone's house. e. The gun will be excluded because Raul had no connection to it, but the marijuana will be admissible because, pursuant to the search warrant, the police could search every room in the house and open any closed containers where the stolen pendant could have been located. \* \* \* 29.Assume Raul, a citizen of France and present in the United States under a student visa, was on parole for a prior drug conviction. Assume further that, in addition to prosecuting Raul for illegal gun and marijuana possession, government officials have begun separate proceedings to revoke Raul's parole and to deport him to France. Assume that the trial judge in the criminal prosecution has ruled that both the gun and the marijuana were illegally seized in Simone's house. Which of the following statements is the most accurate and appropriate? a. Until overturned on appeal, the judge's ruling excluding the gun and the marijuana in the criminal case must also be applied to use of the gun or the marijuana in the parole revocation hearing and the deportation hearing. b. The exclusionary rule does not apply to parole revocation hearings or deportation hearings. c. The exclusionary rule applies to parole revocation hearings because such proceedings are essentially criminal in nature, but does not apply to deportation hearings which are essentially civil in nature. d. The exclusionary rule applies in deportation hearings because it would have a significant deterrent effect on INS agents who might otherwise purposefully seize evidence in an unlawful way; the rule would not apply to parole revocation cases because police would not ordinarily jeopardize a criminal prosecution by illegally seizing evidence just to revoke someone's parole. e. The exclusionary rule does not apply to the proceedings against Raul because, as a citizen of France, he may not claim constitutional guarantees in collateral proceedings. \* \* \* Spider was an informant for the Orange County police. He was paid small sums of money for his tips, which had always proved to be reliable. On April 13, Spider told Officer Fallon that Donnie was selling drugs from the bedroom of his home. Spider said that the day before, he was with Donnie when he made a drug sale, and he described the circumstances in full detail. Spider also said that Donnie planned to sell more drugs the next day. Spider gave Officer Fallon the names and descriptions of the two drug addicts who would be making the purchases. Officer Fallon went to Donnie's house the next day and did, in fact, observe the described persons enter Donnie's house and leave shortly thereafter carrying small packages. On December 2, Officer Fallon prepared an affidavit reciting the tip and his observations, although he did not identify the informant by name or mention his past record of reliability. A magistrate issued a warrant to search Donnie's house. With warrant in hand, Officer Fallon went immediately to Donnie's address. Officer Fallon knocked and announced his presence, and Donnie admitted him. Fallon did not immediately arrest Donnie but told him he was "not free to leave until the search was completed." Officer Fallon then thoroughly searched the premises and found several bags of cocaine in a guitar case in Donnie's bedroom closet. Officer Fallon then arrested Donnie. QUESTION: 30. Donnie is later prosecuted for possession of cocaine. Prior to trial, he moved to exclude the cocaine found in his bedroom. Which of the following is Donnie's best argument to support this motion? a. Officer Fallon's failure to recite the informant's past reliability rendered the warrant invalid for lack of probable cause. b. Since the tip and Officer Fallon's own observations gave rise to probable cause to arrest Donnie, Officer Fallon should have obtained an arrest warrant before entering Donnie's house. c. Officer Fallon went beyond the scope of a proper search since the warrant did not particularly identify the guitar case as an item to be searched. d. The magistrate did not have probable cause to issue the warrant because there was no basis to believe that Donnie was then selling drugs from his house. e. Even though the police may refuse to inform the defendant of an informer's identity, Officer Fallon's lack of disclosure to the magistrate was misleading and fatally tainted the warrant. \* \* \* Amy is arrested and jailed on manslaughter charges. At the jail, Detective Henderson gives the Miranda warnings to Amy, whereupon she says that she doesn't want to talk without a lawyer. All questioning stops. The next day, Amy's family hires a lawyer who comes to meet with her. Two hours after the meeting, Detective Henderson returns to the jail and tells Amy that he wants to talk to her. Amy says that she is just not sure whether she wants to talk or not without a lawyer and asks the detective what he thinks she should do. Detective Henderson says "Well, this is entirely your choice, you know. You have to make your own decision on this." He then advises her of her rights once more. Amy says that she understands, and then she asks to sign a waiver form. She confesses. QUESTION: 31. Amy now moves before trial to suppress the confession. Her best argument in support of her motion is that: a. The evidence should be suppressed because Detective Henderson's initiation of a conversation with Amy about the case in the absence of her lawyer violated her Sixth Amendment rights. b. The evidence should be suppressed because Detective Henderson did not scrupulously honor Amy's request to be left alone. c. The evidence should be suppressed because Detective Henderson's initiation of a conversation with Amy in the absence of her lawyer violated her Miranda rights. d. The evidence should be suppressed because Amy did not knowingly and voluntarily waive her right not to talk without an attorney present. e. The evidence should be suppressed because Amy's invocation of counsel was clear and unequivocal. \* \* \* Marlene, the next door neighbor, came over to Nick's apartment to use the telephone. Marlene called Janice, and the two of them had a whispered conversation about Nick and his friend Tony. During the conversation, the two incriminated themselves and Nick and Tony in a conspiracy to illegally import endangered birds from Brazil. As it happens, however, the police placed a tap on the telephone. The police had extensive evidence, far more than probable cause, to establish that the four were involved in an illegal importation scheme, but, at that point, they were delayed by other pressing business and had not yet completed the paperwork to obtain a warrant for the tap. QUESTION: 32. Assume all four are tried, separately, for conspiracy to violate federal import statutes. Which of the following statements is the most accurate and appropriate? a. All four have standing to object to the illegal tap. b. Only Nick, as the owner of the phone, has standing to object to the illegal tap. c. Only Marlene and Janice, as the participants in the conversation, have standing to object to the illegal tap. d. Only Tony lacks standing to object to the illegal tap. e. None of the four can object to the tap because the police had probable cause, and they would have inevitably secured the warrant. \* \* \* Officer Jones is part of a new community outreach program of the police department. He is going from door to door to introduce himself to the neighborhood and develop a cordial relationship with the residents. He gets to Elmer's house, walks up the steps, and knocks on the front screen door. Through the open wooden door, he sees a marijuana plant growing in a pot on a table in the open. The house is silent, and no one answers his knock. QUESTION: 33. Which of the following statements is the most accurate and appropriate? a. Jones may seize the marijuana because it is in plain view. b. Jones may seize the marijuana because the owners have exhibited no reasonable expectation of privacy in it. c. Jones may seize the marijuana immediately because of the exigent circumstance that it may promptly be destroyed. d. Jones has violated the Constitution by entering upon the property and the curtilage of the defendant's house without justification and without a warrant. e. Jones may apply for a search warrant using the evidence he obtained by looking through the open door because he violated no constitutional right in getting that information. \* \* \* Kramer went across the hall to Jerry's apartment looking for Elaine. Jerry, his close friend, was not home, but the door was unlocked. Kramer let himself in as he usually did. He watched television and fixed himself lunch. No one turned up, so he took a nap on the couch. About two hours later, the police burst into the apartment, and the commotion awakened Kramer. He yelled: "What are you doing here, do you have a warrant?!" The officers answered: "It's none of your business, Bub," and proceeded to search the entire apartment including Kramer's backpack. In fact, the police had no warrant and no probable cause. In their search, the police found an unregistered gun in Kramer's backpack, and he was charged with illegal possession of a weapon. QUESTION: 34. Which of the following statements is the most accurate and appropriate? a. In order to exclude the gun as evidence, Kramer must prove by a preponderance of the evidence that he has standing to object to the officers' search. b. Since Kramer was a regular guest of Jerry's and was, in fact, napping on his couch, he had standing to object to the search of the apartment. c. Kramer has no standing to object to the search, and the gun will be admissible against him. d. Kramer will have standing to object to the admission of the gun unless the police prove he was a "casual" or "fleeting" visitor. Kramer has standing to object to the admission of the gun because, as a close friend of Jerry's and a frequent visitor to his apartment, Kramer was "legitimately on the premises" with Jerry's consent. The police stopped a car containing four occupants almost immediately after receiving a report from a parking lot attendant that he had been robbed at gunpoint by two men. The car matched the description, and the description of the robbers matched two of the four occupants. Following the stopping of the automobile, the occupants were handcuffed and placed in a patrol car. The officers then searched the passenger compartment of the car and found a bag under the driver's seat. The officers felt the outside of the bag and noted that the items inside did not feel like a weapon but proceeded to open it anyway. Upon opening the bag, the officers found the proceeds of the robbery. The officers, wanting to locate the guns, then unlocked the trunk and found two handguns. QUESTION: 35\. Which of the following statements is the most accurate and appropriate? a. The search is invalid because, although it was incident to the arrest, the items seized were beyond the control of the suspects. b. The search of the passenger compartment was valid but the search of the locked trunk exceeded the scope of the officers' lawful authority. c. The search of the passenger compartment of the car is invalid because the police were not permitted to open the bag once they determined that there were no weapons inside and the subsequent search of the trunk was fatally tainted by the search of the passenger compartment. d. The search is valid because there was probable cause and the "automobile exception" applied. e. The search of the passenger compartment is valid because it was reasonable to believe that evidence of the robbery would be found therein but the search of the trunk is invalid because the police can never search the trunk during a search incident to arrest. \* \* \* Police were called to a local convenience store where they made an on-the-scene arrest of Tommy Henderson for robbery and assault with a deadly weapon. The police had no warrant but witnesses' accounts gave them probable cause to believe that Henderson brandished a gun and forcibly took money from two of the store's customers. Henderson was booked and charged with two counts of robbery and unlawful possession of a firearm. Under applicable state procedure, Henderson was brought before a magistrate within twenty four hours. At this initial appearance, there was no determination of probable cause, but Henderson was informed of the charges against him, advised that he was entitled to a preliminary hearing within thirty days, and bail was set at \$5,000. Although Henderson was not asked to enter a plea, or indeed not invited to say anything, he interrupted the judge to say, "I shouldn't be here without a lawyer. My cousin is a lawyer. I'd like to call him. Otherwise, I need a public defender because I don't have any money." The judge simply said: "There will be time enough for that later, Mr. Henderson; we have other business at this point." Henderson, unable to make bail, was remanded to the custody of the local police. Three days later, Henderson was given Miranda warnings and interrogated about the incident at the convenience store. He waived his rights and, after talking with the police officers for about thirty minutes, made incriminating statements. QUESTIONS: 36. If Henderson brought a declaratory judgment action claiming he was entitled to a judicial hearing on the issue of whether there was probable cause to arrest and hold him, which of the following is the government's strongest argument to defeat his claim? a. Immediately after Henderson's arrest, the prosecutor filed an information reciting the basic facts on which the charges were based. b. The day after Henderson's appearance before the Magistrate, the court released Henderson from custody on the condition that he wear a monitoring bracelet and remain at home. c. There was no further need to establish probable because the police had made a public place arrest and their factual basis was obtained from information furnished by reliable eyewitnesses. d. Under the applicable state procedures, Henderson was advised of his right to have a preliminary hearing within thirty days, but having failed to request such a hearing, he waived any further preliminary proceedings. e. Immediately after Henderson's arrest, the grand jury handed up an indictment charging Henderson with two counts of robbery and one count of unlawful possession of a firearm arising out of the convenience store incident. 37.Prior to trial, Henderson moves to suppress the incriminating statements he gave to the police. Which of the following statements is the most accurate and appropriate? a. Henderson's statements are admissible. None of his constitutional rights were violated. b. Henderson's statements are admissible. Although Henderson could have insisted that his lawyer be present at any interrogation, his statements to the Magistrate were not a clear and unequivocal invocation of his right to counsel. c. Henderson's statements are inadmissible. Once the right to counsel is invoked any subsequent waiver is necessarily the result of police coercion. d. Henderson's statements are inadmissible. The Magistrate's failure to determine whether there was probable cause to hold him rendered his continuing custody a Fourth Amendment violation, and any statements secured while he was in illegal custody are inadmissible. e. Henderson's statements are inadmissible. His comments to the Magistrate were a valid invocation of counsel, and thereafter, any attempt to interrogate him required that his lawyer be present. \* \* \* Jules and Beezer were indicted for fraud in connection with selling stock in non-existent businesses. They were released on bail pending their trial. The two talked frequently about how they could best defend themselves. One day, Jules called Beezer to say that he learned that Miss Marple, an elderly widow and one of their best customers, was going to be the principal witness against them. Indeed it appeared that, if Miss Marple were unavailable to testify, the case against the pair would essentially evaporate. Jules told Beezer that he wanted his help in hiding some of the incriminating documents the police had not yet found and in "really scaring" Miss Marple so that she either "has a heart attack" or realizes that testifying against them "will definitely not be in her best interests." Beezer, worried that he was already in "too deep" and feeling concerned for the charming Miss Marple, tried to dissuade Jules from pursuing this course of action. When that failed, Beezer decided to go to the police. He told the police that he wanted to make a deal. In return for a promise of lenient treatment, Beezer told the police of Jules' plans. He also told them that the two of them talked regularly on the phone and would meet on Tuesday to discuss "all options" for their defense. The police then enlisted Beezer's help in order to prevent destruction of evidence and to protect Miss Marple. Beezer agreed to have a tap placed on his telephone and to wear a tape recorder when he met with Jules on Tuesday. The Tuesday meeting produced several statements by Jules which incriminated him in the fraud case and also implicated him in obstruction of justice and conspiracy to murder Miss Marple. QUESTION: 38\. At his trial on the fraud charges, Jules objects to the government's use of the incriminating statements obtained from the Tuesday meeting. Which of the following statements is the most accurate and appropriate? a. The prosecution may use the statements because the government did not set up the Tuesday meeting between Beezer and Jules; it was merely the passive beneficiary of a contact already planned. b. The prosecution may use the statements if the government proves, by a preponderance of the evidence, that its purpose in seeking the statements was only to gather evidence related to the future crimes of obstruction of justice and harm to Miss Marple. c. The prosecution may use the statements because the government was investigating Jules' attempt to subvert the trial process in the fraud case against him. d. The prosecution may not use the statements because they were obtained in violation of Jules' Sixth Amendment rights. e. The prosecution may not use the statements because the real motive of the police was to gather evidence against Jules in his fraud trial and not really to uncover evidence of obstruction of justice or harm to Miss Marple. \* \* \* Officers Kojo and Blaine were part of a drug detection unit assigned to the bus depot in Daytona Beach, Florida. They worked as a pair, and sometimes they would call upon another officer to bring a drug sniffing dog to sniff the outside luggage compartment of the bus and any luggage that might be resting on the walkway leading to the bus. As buses stopped to pick up new passengers and give on-board passengers a chance to stretch their legs, Kojo and Blaine would enter the bus, identify themselves as drug interdiction officers, and politely ask passengers if they would be willing to allow their bags to be searched. Hearing this routine, Deek Opperman, a passenger sitting in the back of bus \#239 en route to North Carolina, stood up and in a loud voice yelled, "They have no right to do this! This is a free country! Just say no to these fascists!" Opperman clutched one of his two black bags and started jumping up and down, screaming, "Just say no, just say no!" Officer Blaine went to the back of the bus and, taking Opperman by the arm, said "Let's you and I just step off the bus and talk this over." Blaine then led Opperman off the bus. Meanwhile, Officer Kojo continued with their usual routine of asking passengers to identify which bags belonged to them and asking whether they would permit a search or not. After a few minutes, it became clear that there was one black duffel bag which no one claimed as his own. Officer Blaine held it up and said, "For the last time, does this bag belong to anyone?" When no one claimed it, Officer Blaine treated it as abandoned property and opened it. Inside he found cocaine and some papers with the name "D. Opperman." Based on this discovery, police charged Opperman with possession of cocaine. QUESTION: 39. At his trial for possession of cocaine, Opperman moves to suppress the cocaine found in the black duffel bag. Which of the following statements is the most accurate and appropriate? a. The evidence will be suppressed because the search of the bag was illegal, and the police would not have otherwise inevitably discovered the cocaine inside. b. The evidence will be suppressed because the police had effectively arrested Opperman, the arrest was illegal, and all subsequent activity was derivative of that illegality. c. The evidence is admissible because Opperman effectively abandoned the black duffel bag, and, as abandoned property, the police could search it without consent or probable cause. d. The evidence is admissible because, even if the search of the bag was illegal, the police would have inevitably discovered it because they had drug sniffing dogs available. e. The evidence is admissible because Opperman, having become rowdy on the bus, was properly taken into custody; the evidence in the duffel bag would have inevitably been discovered as a search incident to arrest. \* \* \* Mitch Anderson was arrested in connection with the brutal murder of a small child. The community was shocked by the crime, and the police were intent on putting together a solid case against Anderson. In their zeal, however, the police mistakenly forgot to give Anderson his Miranda warnings before beginning to question him. Actually each detective simply assumed that the other had taken care of this small detail. Nevertheless, Anderson willingly agreed to talk. After a few minutes of his denials, the situation got heated as one of the detectives began yelling, "We want the truth and we want it now. Our patience is running real thin, real thin, Mr. Anderson." Anderson continued to claim innocence until one of the detectives said, "Look we can do this the hard way or the easy way. If you don't admit your guilt right here and right now, we will put you in the general prison population and let the word leak out that you are a child molester. And God help you then because your life won't be worth two cents." Anderson then said, "Well, can we make some kind of a deal? I'll confess, but you have to protect me and no death penalty." The police agreed and Anderson confessed, giving the police full details of the crime and providing ample and unmistakable corroboration of his guilt. Prior to his trial for murder, the trial judge suppressed the confession given to the police and the evidence derived therefrom. At trial, Anderson took the stand in his own defense and proceeded to tell a story completely at odds with his confession. He repeatedly perjured himself. QUESTION: 40\. The prosecutor now seeks to use Anderson's confession to impeach his trial testimony, and Anderson objects. Which of the following statements is the most accurate and appropriate? a. The statements may be used for impeachment because the ultimate purpose of a criminal trial is ascertaining factual guilt, and Anderson's confession was, in fact, reliable. b. The statements may be used for impeachment if the prosecutor can show the court that Anderson's direct testimony was perjurious. c. The statements may not be used for impeachment because Miranda holds that statements obtained in violation of its requirements "may not be used for any purpose." d. The statements may not be used for impeachment because they were not voluntarily given. e. The statements may not be used for impeachment because they were unreliable. \* \* \* Taking as its guide the federal bail statute, Massachusetts enacted a bail reform act that provides that trial judges may, in deciding whether to release a defendant prior to trial, impose a variety of conditions on a defendant, including the posting of money bail. The judge may impose these conditions, or decide to detain the defendant, if necessary to assure the defendant's appearance at trial or to protect any person or the community from danger posed by the defendant. If the government is seeking pretrial detention, a hearing must be held to determine if the defendant poses a flight risk or is a danger. However, persons charged with aggravated sexual battery against a minor or charged under the state's "Sexual Predator" statute are automatically assumed to pose a danger to others. Benny is charged with aggravated sexual battery on a minor, and Andy is charged with obstruction of justice in connection with trying to cover up Benny's activities. At their arraignment, Benny's counsel asks that he be granted bail, but the judge denies the request saying that he is subject to pretrial detention under the statute. Andy's counsel also asks that her client be granted bail. The judge notes that Andy is unemployed, has no known address, and few ties to the community. She sets bail at \$10,000, but Andy is indigent and unable to post the required amount. He, too, is remanded to jail until trial or until he can meet the bail amount. QUESTION: 41. Both defendants have raised constitutional claims challenging the court's bail decision. Which of the following is the strongest argument either could make to challenge the court's bail ruling? a. Bail set at an amount too great for an indigent defendant to meet violates the Eighth Amendment's guarantee that excessive bail shall not be required. b. Bail set at an amount too great for an indigent defendant to meet violates the presumption of innocence of Due Process of law since a jailed defendant is effectively punished before being convicted of any crime. c. The automatic detention of persons charged with aggravated sexual battery on a minor violates procedural Due Process. d. Preventive detention violates the basic Eighth Amendment principle that assuring the defendant's appearance at trial is the only legitimate objective of the bail system. e. Bail set at an amount too great for an indigent defendant to meet violates the Equal Protection Clause because being set at liberty prior to trial, like having a lawyer for one's defense or having access to a transcript on appeal, should not depend on how rich or poor a person may be. \* \* \* Ashton, an American citizen, landed in Atlanta after a long flight from the Philippines. Ashton was so exhausted from traveling and was so eager to get through customs that he filled out his declaration form with the utmost care, hurried to the baggage carousel to pick up his checked baggage, and headed over to the customs inspection point. Upon reaching the customs agent, he was told he was selected at random for secondary questioning. The second agent asked Ashton questions about his whereabouts, the length of his trip, and its purpose. While inspecting the contents of his luggage, the agent asked him to turn on his computer in order to make sure it was operating properly. When the computer booted up, there were several icons and the agent opened a file entitled "Kodak Pictures." In the file were several nude pictures of women. Homeland Security agents from the immigration department were called in and they took Ashton to a separate room, detained him for several hours, and proceeded to search his computer and external hard drive. They found what they believed to be child pornography, released Ashton but seized the equipment. A week later, they obtained a warrant to search the equipment, and Ashton is now charged with several crimes arising from the incident. QUESTION: 42. Prior to trial, Ashton moves to suppress the images found on his computer arguing that the search was invalid under the Fourth Amendment. Which of the following statements is the most accurate and appropriate? a. The suppression motion should be granted because Ashton's effects were searched without any particularized suspicion. b. The suppression motion should be granted because people have a heightened expectation of privacy in their computers due to the massive amount of personal and business information capable of being stored on them. c. The suppression motion should be granted because Ashton's computer was seized without a warrant. d. The suppression motion should be denied because individualized suspicion was not necessary to search the computer. e. The suppression motion should be denied because, by failing to password protect the files on the computer, Ashton did not take affirmative measures to protect his expectation of privacy.