Session #3

(m/e S&S) A reliable informant called police and told them that he had just witnessed a hit and run accident. The informant believed the driver was intoxicated based on her observation of the driver stumbling out of a bar, getting into a car, and subsequently crashing into another car in the parking lot and immediately driving away. When the police sent a cruiser to the location where the informant had placed the car, they saw a green compact car driving slowly on the shoulder of the road. The driver and vehicle matched the informant's description. A woman was riding in the back seat as a passenger. As the police watched, the car stopped and the woman got out and started walking along the shoulder. The car pulled away, weaving slowly, and the woman raised her arm to hail a taxi. The police stopped the green car and searched the driver's person and the car. They then approached the woman, demanded that she hand over her backpack, and searched it without her consent. In the backpack, they found a small bag of cocaine. The police arrested the woman for drug possession. At the woman's trial, should the judge allow the prosecution to introduce evidence of the cocaine? Answers: No, because the fact that she had been in the car is not enough to support the search. No, because the police should have obtained a warrant to search the backpack after seizing it. Yes, because she was riding in the car, and the informant's report constituted probable cause. Yes, because the fact that she may have left the scene constituted an emergency for police.

Answer choice A is correct. A search or seizure is constitutional if it is pursuant to a warrant based on probable cause or if it falls under an exception to the warrant requirement. In this case, the police had no warrant to search the woman. They also had no probable cause to arrest her and search her incident to that arrest because there is no evidence that she was involved in the hit and run. Furthermore, no exception to the warrant requirement applies. Answer choice B is incorrect because it presumes that the seizure of the backpack was permissible. Because the police lacked probable cause to seize the backpack, the police could not have obtained a warrant. Answer choice C is incorrect. Although the police did have probable cause to search the green car, the woman was not in the green car at the time she was searched. Answer choice D is incorrect because the police lacked probable cause to believe that the woman was involved in any illegal conduct or that her departure would endanger the public or lead to the destruction or loss of evidence. Therefore, the risk of her leaving the scene did not constitute an emergency that justified the search.

M/e S&S A liquor store was robbed, and the robber made off with cash and a fifth of a particular, popular brand of whiskey. After the robbery, the liquor store clerk called the police. The clerk identified a frequent customer as the robber. The clerk described the shirt the robber was wearing as a red and white plaid shirt. The clerk also identified the type of weapon used by the robber as a pistol. The police obtained a valid warrant to search the customer's apartment. The search warrant, in describing the items to be seized, listed only "a pistol used in the robbery as well as other fruits and instrumentalities of that crime." The officer who applied for the warrant, although aware of the plaid shirt, made a conscious decision to not list it on the warrant due to other pressing matters. Two police officers executed the search warrant. The officer who had interviewed the store clerk spotted a red and white plaid shirt in plain view on a table in the customer's apartment and seized it. The police officers did not find the pistol or any other fruits or instrumentalities of the robbery. The customer was charged with robbery. He moved to suppress the use of the plaid shirt as evidence. Should the court grant the motion to suppress the plaid shirt? Answers: No, because the shirt was lawfully seized under the "plain-view" doctrine. No, because the warrant specifically authorized the seizure of the shirt. Yes, because the shirt was merely evidence of the crime. Yes, because the officer made a conscious decision not to include the plaid shirt as an item to be seized in the search warrant.

Answer choice A is correct. A search warrant must describe with particularity the objects to be seized. Here, the search warrant did not specifically describe the plaid shirt worn by the robber during the robbery as the item to be seized. The plaid shirt, mere evidence linking the customer to the robbery, did not fit within the general categories also mentioned in the warrant (i.e., fruits or instrumentalities of the robbery). However, because the search warrant was a valid warrant, the police officers were legally entitled to be in the customer's apartment. Because an officer saw the plaid shirt in plain view while searching the apartment for the gun as well fruits and instrumentalities of the robbery, the officer's seizure of this shirt was permitted under the "plain view" exception to the warrant requirement. Answer B is incorrect because the search warrant did not specifically authorize the police officers to seize the plaid shirt. The shirt was not the pistol used in the robbery, it was not a fruit of the robbery, as the cash or bottle of whiskey was, and it was not an instrumentality of the robbery, as the pistol was. Answer C is incorrect because, even though the shirt was mere evidence of the robbery, the police officers, in executing a valid search warrant, could seize evidence of the robbery under the plain view doctrine. Answer D is incorrect. The plain view doctrine is not limited to those items that the police could have listed on a valid search warrant but failed to do so; the discovery of the seized item need not be inadvertent.

Question 1957 A defendant was charged with the capital offense of first-degree murder, for which the only available penalties were death or life in prison without parole. During jury selection, the trial court, over the defendant's objection, granted the prosecution's for-cause challenge of five prospective jurors who indicated upon questioning by both parties that they personally were opposed to the death penalty and were unsure if they could ever vote to impose it. The jury convicted the defendant and, following a separate sentencing hearing, sentenced him to death. On appeal, the defendant's only argument was that excusing the prospective jurors violated his federal constitutional right to be tried by a jury chosen from a fair cross section of the community. How should the court of appeals rule on the conviction and the death sentence? Answers: Affirm both. Affirm the conviction, but reverse the death sentence and remand for a new sentencing hearing before a different jury. Affirm the conviction, but reverse the death sentence and remand for resentencing to life in prison. Reverse both.

Answer choice A is correct. A trial court properly may excuse a juror for cause from serving in both the guilt and penalty phases of a capital case if a juror's views regarding the death penalty would prevent or substantially impair the juror from impartially deciding whether the death penalty is warranted in that particular case. Exclusion of such jurors does not violate the fair cross-section right of the Sixth Amendment. Because there was no constitutional violation, the defendant is not entitled to a reversal of either his conviction or sentence, and thus answer choices B, C, and D are incorrect.

(M S&S) The police obtained information on an upcoming drug shipment from a known informant who had provided reliable information in the past. Based solely on this information, the police obtained a warrant to search a known drug dealer's home on the following day, when the informant said the drugs would be delivered to the home. The warrant provided for the police to seize narcotics and related contraband, as well as "other fruits, instrumentalities and evidence of the crime at this time unknown." When they arrived at the drug dealer's home, rather than announcing their presence, the police promptly kicked down the door. They found the drug dealer and the defendant, whom they did not recognize, drinking coffee in the kitchen. One officer searched the drug dealer and the defendant, while the others searched the areas of the home specified in the warrant. The search of the defendant uncovered a handgun with an obliterated serial number, which the officer seized. It was later revealed that the handgun was stolen, that the defendant was a convicted felon, and that the gun was possessed illegally. The defendant was charged with crimes related to possession of the handgun. The defendant has moved to suppress evidence of the handgun, arguing that it was illegally seized. What is the defendant's best argument that the handgun should be suppressed? Answers: The police did not have independent justification to search the defendant. The police did not knock and announce their presence before entering the drug dealer's home. The search warrant constituted an impermissible anticipatory warrant. The search warrant was not based on probable cause.

Answer choice A is correct. Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. In this case, the defendant was not named in the search warrant, and the police did not even know his identity. Because the police had no independent justification to search the defendant, the search was illegal, and the gun should be suppressed. Answer choice B is incorrect because, although a violation of the "knock and announce" rule may invalidate an arrest, it does not trigger the exclusionary rule with respect to evidence discovered as a result of a search conducted in violation of the rule. This is because the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Answer choice C is incorrect because police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. Answer choice D is incorrect because a warrant may be based on information from a reliable, known informant. Moreover, the validity of the warrant itself is not relevant because it did not specify that the defendant could be searched.

(E 5th right & priv) An accountant was the sole owner of a small firm that kept the books and financial records for small business owners and their businesses. The police properly obtained and served a warrant and seized the accountant's records for his own firm. Based on evidence discovered in the accountant's records, the accountant was charged with theft of internet services from a local internet service provider. The accountant challenged the admissibility of the evidence seized by police as a violation of his Fifth Amendment privilege against self-incrimination. How should the court rule on this challenge? Answers: Deny it, because the Fifth Amendment privilege against self-incrimination does not protect an individual from seizure of incriminating documents pursuant to a warrant. Deny it, because the Fifth Amendment privilege against self-incrimination does not protect an individual who is acting as a sole proprietor of a business. Uphold it, because the accountant's records constitute testimonial evidence. Uphold it, because the records are not evidence of the physical characteristics of the accountant, such as blood, urine, or voice samples.

Answer choice A is correct. The Fifth Amendment privilege against self-incrimination does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person, even when those documents were prepared by the person. This privilege only protects against the compelled disclosure of incriminating testimonial evidence. Answer choice B is incorrect. Although the Fifth Amendment privilege against self-incrimination does not protect legal entities, such as corporations, it does protect an individual, even when the individual's criminal conduct stems from his operation of a business as a sole proprietorship. Answer choice C is incorrect. Although the business records seized by police were testimonial evidence, the Fifth Amendment privilege against self-incrimination does not apply because the accountant was not compelled to disclose this information. Answer choice D is incorrect. Evidence of the physical characteristics of a person do not constitute testimonial evidence for the purposes of the Fifth Amendment privilege. On the other hand, records of a business generally do constitute testimonial evidence. However, the privilege generally does not apply to an individual's voluntarily prepared business papers, even those records required by law to be kept, unless the act of producing the records constitutes self-incriminating testimony.

(m search n seizure) A police officer sought from an independent magistrate a warrant to search a liquor store owned by the defendant for evidence of a murder. The affidavit submitted by the officer specified the premises to be searched and the items to be seized, and established probable cause on the basis of a reliable informant's tip that such evidence would be found on those premises. The warrant issued by the magistrate set forth the premises to be searched, but neither identified the items to be seized nor made reference to the affidavit. Evidence seized by the officer during the search conformed to the evidence specified in the affidavit. The defendant was charged with murder. The defendant moved to suppress the items seized by the police officer on the grounds that the warrant was constitutionally defective. How should the court rule? Answers: Grant the motion, because the warrant lacked the particularity required by the Constitution. Grant the motion, because probable cause cannot be based on an informant's tip. Deny the motion, because the search was reasonable. Deny the motion, because as a highly regulated business, a liquor store may be searched without a warrant. Rationale:

Answer choice A is correct. The Fourth Amendment requires that a search warrant state with particularity the items to be seized. The warrant in this case failed to do so. Answer choice B is incorrect. Probable cause may be based on an informant's tip where the officer's affidavit also establishes the informant's reliability or other justification for relying on the tip. Answer choice C is incorrect because, although the magistrate was aware of the items to be seized at the time that the magistrate issued the warrant and the police officer only seized an item specified in the affidavit, the dictates of the Fourth Amendment warrant requirement were not satisfied. Consequently, the search was by definition unreasonable. Answer choice D is incorrect because, although a liquor store is a highly regulated business that may be subject to an administrative search without a warrant, a search of the store for criminal activity, such as a murder, is subject to the warrant requirement.

(E grand juries) The house of a neighbor of the defendant was burned down during the day while the neighbor was at work. Suspicion fell upon the defendant who had often complained about various conduct of the neighbor, such as frequent loud and long parties, and had threatened to "remove" the neighbor from the neighborhood. The defendant became the focus of the grand jury investigation into the house fire. After learning of the investigation, the defendant requested that he be allowed to testify before the grand jury, to present a witness that could corroborate the alibi, and to question the neighbor during the neighbor's testimony to the grand jury. His request was denied. The defendant was indicted for the crime of arson. The defendant has moved to dismiss the indictment based on the refusal of his request. Should the court dismiss the indictment? Answers: No, because the defendant does not have a right to present or confront witnesses or to introduce evidence at a grand jury proceeding. No, because the procedural defect did not substantially impact the grand jury's decision to indict. Yes, because the defendant had a right to present evidence of his innocence. Yes, because the defendant had the right to confront witnesses against him.

Answer choice A is correct. The grand jury conducts a non-adversarial proceeding. Any person, including a target of the investigation, does not have the right to present or confront witnesses or to introduce evidence at a grand jury proceeding. Answer B is incorrect. Although a procedural defect that substantially impacts the grand jury's decision to indict is grounds for dismissing an indictment, here there was no procedural defect in the proceedings due to the denial of the defendant's request, as the defendant did not have the right to present and confront witnesses and introduce evidence. Answer C is incorrect because, as noted with regard to answer choice A, the defendant did not have the right to present evidence at the grand jury proceeding, even though he was the target of the investigation. Answer D is incorrect because, as noted with regard to answer choice A, the defendant did not have the right to confront witnesses at the grand jury proceeding, even though he was the focus of the investigation.

(m/e police interro) Police, who had probable cause to arrest a man for a series of armed robberies, obtained a warrant to arrest him. At 6 a.m. they surreptitiously entered the man's house and, with guns drawn, went to the man's bedroom, where they awakened him. Startled, the man asked, "What's going on?" and an officer replied, "We've got you now." Another officer immediately asked the man if he had committed a particular robbery, and the man said that he had. The police then informed him that he was under arrest and ordered him to get dressed. Charged with robbery, the man has moved to suppress the use of his statement as evidence. What is the man's best argument for granting his motion? Answers: The police did not give him the required Miranda warnings. The statement was not voluntary. He was not informed that he was under arrest until after he made the statement. The police did not have a search warrant authorizing entry into the house.

Answer choice A is correct. The man was very likely in custody, even though he was in his home, given the time and manner of the police entry. Accordingly, the police could not properly interrogate the man without first providing him with Miranda warnings. Answer choice B is incorrect. A challenge to the voluntariness of the statement would be much more difficult than a Miranda challenge, given that the man's statement was very likely the product of custodial interrogation. Answer choice C is incorrect because there is no requirement that a defendant be informed of an arrest or a warrant; what is required is that a person in custody not be subjected to interrogation without Miranda warnings. Answer choice D is incorrect because the arrest warrant sufficed to allow entry into the man's home.

(E police interro) A lawful resident alien matched the description of a suspected bank robber. Two police officers brought him to the police station for questioning. The officers never officially placed the resident alien under arrest, but they never mentioned that he was free to go. Instead, they explained that they wanted to keep him at the station until they "cleared up the whole situation." Unfamiliar with the U.S. justice system, the resident alien did not know about the Fifth Amendment, he was never given any Miranda warnings, and it never occurred to him to ask whether he was free to go. After several hours with no contact with anyone except the police officers, the resident alien eventually made an incriminating statement. At the resident alien's subsequent trial, the prosecution intends to use the statement as evidence against him. Is the statement likely admissible at trial? Answers: No, because the interrogation took place at the police station. No, because the resident alien was not given his Fifth Amendment warnings. Yes, because the Fifth Amendment applies only to U.S. citizens. Yes, because the resident alien did not specifically assert his Fifth Amendment rights.

Answer choice B is correct. A suspect has a constitutional right not to be compelled to make incriminating statements about himself during a police interrogation. Any incriminating statement made as a result of such interrogation is inadmissible unless the police informed the suspect of his Miranda rights. In this case, the resident alien was likely in a custodial interrogation, and a reasonable person in his situation would not think that they could leave (e.g., the fact that he had no contact with anyone else for hours, that he was never told he was free to go, that he was told that the police wanted to keep him there until "they cleared up the whole situation"). Accordingly, he should have been given Miranda warnings, and anything he said in the absence of those warnings should not be admitted. Answer choice A is incorrect. First, interrogations do not have to be at a police station to be custodial. It is only required that a government agent perform the interrogating and that the person being interrogated does not believe that he is free to leave. Second, even statements made at a police station may be admissible, if proper warnings are given. Therefore, answer choice B is a better answer. Answer choice C is incorrect because the Fifth Amendment states that "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The right is not limited to U.S. citizens, but it extends to lawful resident aliens. Answer choice D is incorrect because the defendant need not affirmatively assert his rights before he is entitled to the Miranda warnings. Rather, once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of his Miranda rights and he waives those rights.

(M Arrest unreasonable seizure) A police officer's wife often worked late with her business partner. The officer suspected they were having an affair and decided to confront the partner. After putting on his patrol uniform and badge, the officer went to the partner's home and kicked open the front door. He found the partner in his kitchen putting cocaine into little bags. The officer immediately arrested the partner for possession of cocaine and informed him of his Miranda rights. The officer confronted the partner about the affair, and the partner confessed that he and the officer's wife spent late nights together selling cocaine. At the partner's subsequent trial for possession and distribution of cocaine, he moved to suppress evidence of his confession because it was involuntary. What is the strongest argument in support of the suppression of the confession? Answers: The confession was involuntary because the partner did not waive his Miranda rights. The confession was too closely tied to the unlawful arrest. The officer did not have probable cause to detain the partner. The partner made the confession after the police officer unlawfully arrested him.

Answer choice B is correct. A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed. Here, the partner's strongest argument is that the confession was too closely tied to the illegal arrest made by the officer. The officer illegally arrested the partner in his home without a warrant after breaking down his door in order to confront him about an alleged affair with his wife, and the confession was in response to his inquiries about the alleged affair. This makes the confession very closely tied to the unlawful arrest. Answer choice A is incorrect. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Here, although the officer was clearly angry about the alleged affair between his wife and the partner, there is no evidence that the partner did not understand his Miranda rights, or that the officer coerced him into admitting that he sold cocaine. Thus, this is not the strongest argument he can make. Answer choice C is incorrect. An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant). Answer choice D is incorrect. As stated above, a voluntary confession made after an illegal arrest will not automatically be suppressed. It is not the illegal arrest, but the strong connection of the confession to the illegal arrest, that makes the confession inadmissible. Thus, answer choice B provides the strongest argument in support of suppressing the confession.

(E S&S) A convicted murderer was serving a life sentence in federal prison. He had kept in touch with some old associates who occasionally sent him contraband drugs. The murderer hid these drugs in his prison cell until he used them or sold them to other inmates. One afternoon, while the murderer was in the exercise yard, prison guards searched all of the cells in the murderer's cell block, without the permission of the inmates or a warrant. The prison guards found a bag of cocaine in the murderer's prison cell.The murderer was prosecuted for drug possession. At a hearing, he moved to suppress the cocaine found in his prison cell. Should the cocaine be suppressed? Answers: No, because prison inmates do not have constitutional rights. No, because a prison inmate has no reasonable expectation of privacy in his cell. Yes, because the guards did not have a warrant. Yes, because the guards did not have reasonable, individualized suspicion of a violation of the law.

Answer choice B is correct. Although prison inmates possess many constitutional rights, the Fourth Amendment right to be free from unreasonable search and seizure is less stringent in the prison context. A pretrial detainee may have a limited expectation of privacy in his cell, but a convicted prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. In this case, the murderer, a prison inmate, had no expectation of privacy in his cell and, accordingly, the cocaine found in the search by the prison guards should not be suppressed. Answer choice A is incorrect because prison inmates do possess constitutional rights. However, the Fourth Amendment right to be free from unreasonable search and seizure does not apply to search of a prisoner's cell Answer choice C is incorrect because the prison guards did not need a warrant to search the prisoner's cell. Answer choice D is incorrect because a prison inmate does not have a reasonable expectation of privacy in his cell, and the guards did not need reasonable, individualized suspicion of a violation of the law to search the cell.

(E police interro) Two police officers detained a woman at the scene of the murder of a gas station attendant. They suspected her of committing the crime and brought her to the police station, over her strong objection, for questioning. After one question, asking why she had been present at the crime scene, the woman suddenly burst into tears and shouted out, "That liar cheated on me and I wanted him dead." One of the officers immediately interrupted the woman, realizing that they had forgotten to give her a Miranda warning at the scene of the crime because of the difficult time they had in detaining her. The officer then gave the woman a full Miranda warning and asked her if she wanted to continue with her statement. The woman then refused to talk any further and demanded to see her attorney. At trial, the woman took the stand in her own defense and testified that she did not know the gas station attendant and had no reason to kill him. If the court allows the prosecutor to use the statement the woman made to the officers during her interrogation, it may be used: Answers: As direct evidence of the murder. For impeachment purposes only. Both as direct evidence of the murder and for impeachment purposes. None of the above.

Answer choice B is correct. Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant, if the defendant takes the witness stand and gives testimony at variance with previous admissions. Such statements may not be used as direct evidence, however. Here, the woman's statement came in response to custodial interrogation in which she had not been given her Miranda warnings. As a statement taken in violation of Miranda, the woman's statement may only be used for impeachment. Answer choice A is incorrect, as the impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the veracity of the defendant. Answer choice C is incorrect for the same reason. Answer choice D is incorrect, as the statement may be used for impeachment purposes, as stated under answer choice B.

(M/e due process) Question 1994 A defendant is being tried for the murder of a woman who disappeared 10 years ago and has not been heard from since. Her body has never been found. The prosecutor has presented strong circumstantial evidence that she was murdered by the defendant. To help establish the fact of her death, the prosecutor has requested that the judge give the following instruction, based on a recognized presumption in the jurisdiction: "A person missing and not heard from in the last seven years shall be presumed to be deceased." Is the instruction proper? Answers: No, because the fact that someone has not been heard from in seven years does not necessarily lead to a conclusion that the person is dead. No, because mandatory presumptions are not allowed against a criminal defendant on an element of the charged crime. Yes, because it expresses a rational conclusion that the jury should be required to accept. Yes, because the defendant has a chance to rebut the presumption by offering evidence that the woman is alive or has been heard from in the last seven years. Rationale:

Answer choice B is correct. The U.S. Supreme Court has held it to be a violation of due process for a judge to give a mandatory jury instruction in a criminal case on an element of the charged crime. The instruction is unconstitutional because the phrase "shall be presumed" could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible. Answer choice A is incorrect. It is true that the conclusion does not necessarily follow. But to be constitutional, a presumption or inference does not have to be certain; it needs only to be rational and to follow more likely than not. The presumption in the requested instruction meets that standard. However, the instruction violates due process as explained above. Answer choice C is incorrect because a mandatory jury instruction in a criminal case on an element of the charged crime violates due process. Answer choice D is incorrect. It is true that the defendant has a chance to rebut the presumption with evidence that the woman is alive or has been heard from in the last seven years. But it violates due process to shift the burden of proof to the defendant on an element of the crime.

(E grand juries) A woman had previously been suspected of breaking into a museum, stealing a famous painting, and replacing it with a forgery she had created. The woman was never charged with any crime because there was not enough evidence to prove that the woman had committed the theft and forgery. Recently, a person broke into the same museum, stole a famous painting, and replaced it with a forgery. A judge would not grant a warrant to search the woman's paint studio following the recent crime because probable cause could not be established at that time. Nonetheless, the police searched the woman's studio and found the stolen painting. The prosecution intended to introduce the painting at the grand jury proceeding. Upon learning of this, the woman's lawyer immediately moved to suppress introduction of the painting on the grounds that it was obtained as a result of an illegal search and seizure. Should the painting be suppressed? Answers: No, because the woman had been previously suspected of committing a similar crime. No, because the grand jury may consider illegally obtained evidence in determining whether to indict. Yes, because the grand jury cannot consider illegally obtained evidence in determining whether to indict. Yes, because the warrantless search of the woman's studio violated the woman's reasonable expectation of privacy.

Answer choice B is correct. The grand jury is not restricted to hearing evidence that would be admissible at trial; an indictment may generally be based on hearsay or illegally obtained evidence. Answer choice A is incorrect because the fact that the woman had been previously suspected of committing a similar crime is not relevant to whether the painting may be admitted in the grand jury proceeding. Answer choice C is incorrect because illegally seized evidence may be admitted and considered in a grand jury proceeding. Answer choice D is incorrect because, even though this search and seizure likely violated the woman's reasonable expectation of privacy, this will not prevent the admission of the painting at a grand jury proceeding

(M denial of counsel) A man was charged with murder. An attorney was appointed due to the man's indigence. The man consulted with his attorney. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to elicit incriminating statements about the crime from the man. In response to the informant's prompting, the man confessed to killing the victim. At trial, the man testified that, while present at the scene of the murder, he did not participate in the killing. When the prosecution sought to call the informant as a witness to testify as to the man's prior contradictory confession, the defense attorney objected on the grounds that the confession had been obtained in violation of the defendant's constitutional rights. Should the court sustain this objection? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. No, because the confession was to be used for impeachment purposes. No, because the man, as an indigent, was provided with an attorney and was able to consult with his attorney prior to talking with the informant.

Answer choice C is correct. A criminal defendant's Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant's attorney. However, even where a voluntary confession is obtained in violation of a defendant's Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant's testimony. For this reason, answer choice B is incorrect. Answer choice A is incorrect because a defendant's Fifth Amendment right against self-incrimination applies to custodial police interrogations. Although the defendant in question was in custody and was being interrogated by the police informant, since the defendant was unaware that the informant was acting at the behest of the police informant, the defendant's confession was not coerced by a police dominated atmosphere and, hence, the defendant's Fifth Amendment right against self-incrimination was not violated. Answer choice D is incorrect because, although the man's indigency did require the state to provide him with an attorney and the opportunity to consult with that attorney, the man's Sixth Amendment right to counsel also required the attorney's presence when the police, acting through the informant, sought to elicit incriminating information from the man.

(m remedy denial of counsel) A man was charged with murder. An attorney was appointed due to the man's indigence. The man consulted with his attorney. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to elicit incriminating statements about the crime from the man. In response to the informant's prompting, the man confessed to killing the victim. At trial, the man testified that, while present at the scene of the murder, he did not participate in the killing. When the prosecution sought to call the informant as a witness to testify as to the man's prior contradictory confession, the defense attorney objected on the grounds that the confession had been obtained in violation of the defendant's constitutional rights. Should the court sustain this objection? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. No, because the confession was to be used for impeachment purposes. No, because the man, as an indigent, was provided with an attorney and was able to consult with his attorney prior to talking with the informant.

Answer choice C is correct. A criminal defendant's Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant's attorney. However, even where a voluntary confession is obtained in violation of a defendant's Sixth Amendment right to counsel, such confession may be used at trial to impeach the defendant's testimony. For this reason, answer choice B is incorrect. Answer choice A is incorrect because a defendant's Fifth Amendment right against self-incrimination applies to custodial police interrogations. Although the defendant in question was in custody and was being interrogated by the police informant, since the defendant was unaware that the informant was acting at the behest of the police informant, the defendant's confession was not coerced by a police dominated atmosphere and, hence, the defendant's Fifth Amendment right against self-incrimination was not violated. Answer choice D is incorrect because, although the man's indigency did require the state to provide him with an attorney and the opportunity to consult with that attorney, the man's Sixth Amendment right to counsel also required the attorney's presence when the police, acting through the informant, sought to elicit incriminating information from the man.

(m/e polce interro) Police officers were engaged in the investigation of a bank robbery. Based on the circumstances of the robbery, they believed that the robbery was an "inside job," and that a senior employee was likely involved in planning the robbery. They asked five of the bank's senior employees, including the bank's vice-president, to come to the police station the following day to answer some questions. Before any of the employees arrived, the investigating officers had a discussion in which they concluded that one of the five senior employees was likely involved in the robbery, and that they should attempt to elicit a confession since they had no evidence implicating any of them. The officers did not read the vice-president his Miranda rights when he arrived, but did indicate that he was free to leave at any time. A few minutes into the interview, the vice-president broke down and admitted that he was involved in the conspiracy. Following the confession, the officers informed the vice-president that he was under arrest, read him his Miranda rights, and asked if he would sign a written waiver of his rights and a written confession. The vice-president stated, "I already told you everything, so I might as well." He then signed both documents. Is the vice-president's written confession likely admissible at trial? Answers: No, because the police may not intentionally employ a "question first, warn later" approach to elicit a confession. No, because the vice-president was not allowed time to contact his attorney before waiving his rights. Yes, because the officers provided the vice-president with the required Miranda warnings. Yes, because the taint of an illegal, unwarned interrogation may be cured by providing the suspect with Miranda warnings.

Answer choice C is correct. A suspect must be informed of his Miranda rights before a custodial interrogation. Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. A person is in custody when, under the totality of the circumstances, a reasonable person would believe that he is not free to leave. In this case, the vice-president was not under arrest, but rather came to the police station at the request of the police, and he was specifically told that he was free to leave. Thus, he likely was not entitled to Miranda warnings when he arrived. Answer choice A is incorrect because, while it is true that a second confession obtained as a result of a "question first, warn later" approach may not be admissible if the police intended to circumvent Miranda, that is not applicable here because the police were not required to provide Miranda warnings before the vice-president's confession. Answer choice B is incorrect because a defendant must invoke his Miranda right to counsel, which the vice-president did not do. Answer choice D is incorrect because, as discussed above, the police were not required to provide the vice-president with Miranda warnings before his confession, and thus the initial part of the interrogation was not illegal.

(M/E S&S) An employee of a storage company informed police that the owner of the company was involved in a conspiracy to steal goods and then sell them. According to the employee, the owner permitted the storage of the stolen goods in his warehouse, typically only overnight, before the goods were transported elsewhere for resale. Acting on reliable information from the employee that the warehouse was due to receive a shipment of stolen goods that evening, a police officer immediately sought and obtained a warrant from a neutral and detached magistrate to search the warehouse upon the arrival of the stolen goods. The warrant failed to specify the condition that had to occur before the search was authorized by the warrant. Properly executing the warrant, the police seized the stolen goods. The warehouse owner was charged with conspiracy to commit larceny and possession of stolen goods. The owner sought to suppress the evidence of the stolen goods on the grounds that the seizure was unconstitutional. Should the court suppress this evidence? Answers: Yes, because an anticipatory warrant is per se unconstitutional. Yes because the failure to state the triggering condition in the warrant caused the warrant to fail for lack of particularity. No, because the warrant satisfied the probable cause requirement of the Fourth Amendment. No, because a warrant is not needed to search business premises such as a warehouse.

Answer choice C is correct. An anticipatory warrant is not unconstitutional simply because the items to be seized are not located on the premises to be searched at the time that the warrant is issued. The probable cause requirement is satisfied where, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place. For this reason, answer choice A is incorrect. Answer choice B is incorrect because a warrant need not state any condition that is precedent to its validity. Answer choice D is incorrect because the warrant requirement generally does apply to the search of a business, particularly where the search is made in regard to criminal activity rather than for administrative purposes.

(M due process) A defendant was tried for armed robbery. The state introduced evidence that a man, identified by witnesses as the defendant, entered a convenience store at 11 p.m. on March 5, threatened the clerk with a gun, and took $75 from the cash register. The defendant did not testify, but his sister did. She testified that on March 5, at the time of the robbery, the defendant was with her in a city 300 miles away. On cross-examination, the sister admitted having given a statement to the police in which she had said that the defendant was not with her on March 5, but she claimed that the earlier statement was mistaken. The court instructed the jury that in order to convict the defendant, they had to find all of the elements of the crime beyond a reasonable doubt. As to the defendant's claim of alibi, which of the following additional instructions would be proper? Answers: Alibi is a matter of defense and so must be established by the defendant; however, the burden of persuasion is by a preponderance of the evidence, not beyond a reasonable doubt. Before you may consider the defendant's claim of alibi, you must decide whether he has produced sufficient evidence to raise the issue. If you have a reasonable doubt as to whether the defendant was present at the convenience store at about 11 p.m. on March 5, you must find him not guilty. If the defendant's evidence has caused you to have a reasonable doubt as to whether he was the robber, you must find him not guilty.

Answer choice C is correct. Due process requires the prosecution to prove all elements of a crime beyond a reasonable doubt. Because alibi is not a traditional defense, but rather negates an essential element of the crime (the defendant's actual commission thereof), due process precludes imposing upon a defendant the burden of proving alibi. For these reasons, answer choices A and B are incorrect. Answer choice D is incorrect. The error in this response is its reference to a reasonable doubt arising from the defendant's evidence. Due process requires the prosecution to prove all elements of a crime beyond a reasonable doubt.

(m/h Double jeopardy A defendant was charged with attempted murder. At the preliminary hearing, the presiding judge heard the testimony of four prosecution witnesses and found that the prosecution had failed to establish probable cause that the defendant had committed any offense. Accordingly, he dismissed the charge. The prosecutor then called the same four witnesses before a grand jury. The grand jury indicted the same defendant for attempted murder. The defendant has moved to quash the indictment on the ground of double jeopardy. How should the court proceed? Answers: Grant the motion, because the dismissal of the first charge on the merits, whether correct or incorrect, bars any further prosecution. Grant the motion, unless the prosecution has evidence that was not presented in the first case. Deny the motion, because the defendant has not yet been in jeopardy of conviction on the attempted murder charge. Deny the motion, because the protection of the double jeopardy clause does not come into play until there has been a conviction or an acquittal.

Answer choice C is correct. For double jeopardy purposes, jeopardy does not attach until trial, when the jury is sworn in (or, in a bench trial, when the first witness is sworn in). Answer choices A and B are incorrect because the dismissal after a preliminary hearing had no double jeopardy consequences for the reasons stated above. Answer choice D is incorrect. While jeopardy does not attach until trial, actions short of a conviction or acquittal (for example, a mistrial) may bar retrial on double jeopardy grounds.

(m/e S&S) A brutal murder occurred at a roadside rest area. Unable to determine the identity of the killer, the police set up a checkpoint on the highway near the rest area several days later at approximately the same time of night as the murder occurred. The purpose of the checkpoint was to ask travelers for help in solving the murder. The police stopped every car and gave the driver a flyer with information about the murder. The officer then asked the driver if he had any relevant information he wanted to share with police. If the driver responded negatively, the driver was allowed to continue on his way. If the driver responded affirmatively, the car was directed to the shoulder of the road to talk with another officer. A driver who was stopped in this manner was smoking marijuana. The police officer, upon smelling the marijuana, directed the driver to the side of the road where the driver was arrested. At the driver's trial for driving under the influence, the driver moves to exclude the evidence of the marijuana from the trial on the grounds that the stop violated his constitutional rights. Should the court grant the driver's motion? Answers: Yes, because the arrest of the driver for a drug related offense occurred as a result of a checkpoint stop. Yes, because the stop was part of an ongoing criminal investigation. No, because the police had an information seeking purpose in stopping the driver. No, because the police's actions did not constitute a seizure for purposes of the Fourth Amendment because the driver was not subject to an interrogation prior to his arrest.

Answer choice C is correct. Police may set up of checkpoint for the purpose of seeking information about a crime without violating the constitutional rights of a driver who is stopped, as long as (i) the checkpoint stop's primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle's occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. The police need not have an individualized suspicion that a driver has committed a crime in order to stop the driver. Answer choice A is incorrect because, although the operation of a checkpoint by the police for the purpose of finding drug-related crimes is not constitutionally permissible, that was not the purpose of this checkpoint. Answer choice B is incorrect because, although the stop was part of an ongoing criminal investigation, the purpose of the stop was not to directly catch the perpetrator of the murder, but simply to elicit the public's help in finding out who the killer was. Answer choice D is incorrect because an involuntary traffic stop does result in the seizure of the occupants of the car. There is no requirement that the police interrogate the driver or other occupants before the stop constitutes a seizure.

(E Arrest: Unreasonable seizure) A mother hired a babysitter to watch her two children one evening, but returned home much later than expected. Because the bus route the babysitter needed to take home was no longer running, the mother let her stay the night in the guest room. In the morning, while the babysitter made the children breakfast, the mother discovered that a very small and valuable sculpture was missing from the guest room. The mother called the police, who immediately came to the home. The mother let them into the house and brought them to the kitchen, where the babysitter had finished breakfast. The police asked the babysitter for her identification, and when they ran her information through the police database, they discovered that there was a warrant for her arrest for robbery of a gas station. The police arrested the babysitter and searched her. They did not find the sculpture, but did discover an unlicensed gun strapped to her leg that matched the description of the gun used to rob the gas station. At trial for robbery of the gas station, the babysitter moved to suppress evidence of the gun. Should the court grant her motion? Answers: Yes, because the police violated the babysitter's reasonable expectation of privacy as an overnight guest. Yes, because the police made an invalid warrantless search of the babysitter. No, because the mother gave the police permission to enter her home. No, because the babysitter was only an overnight guest in the home.

Answer choice C is correct. To prove a violation of her Fourth Amendment rights, a defendant must have a legitimate expectation of privacy in the premises searched. A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony, even without a warrant. Police also can require that the detained person identify herself. A police officer may not arrest a person in another person's home without a search warrant, absent exigent circumstances or valid consent. Here, the mother consented to the officer's presence in her home, making the arrest valid. Because the gun was found during a search incident to a lawful arrest, the search is valid. Answer choice A is incorrect. Although an overnight guest generally has a legitimate expectation of privacy in the place where she stayed, in this case the babysitter's right would only apply to the guest room where she slept. The mother could still consent to a search of the community areas of the premises. For this reason, the fact that the police did not have probable cause to search the babysitter until they ran her identification through the police database is not a violation of her Fourth Amendment rights. Answer choice B is incorrect because the police found the gun in a valid search incident to a valid arrest. Answer choice D is incorrect because the fact that the babysitter was an overnight guest is not determinative of the validity of a search incident to a lawful arrest. A police officer may not arrest a person in another person's home without a search warrant, absent exigent circumstances or valid consent, but the mother consented to the officer's presence in her home, making the arrest valid.

(E 6th rt 2 counsel) A man was charged with murder. He consulted with the attorney who was appointed to represent him. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to simply "keep his ears open" for incriminating statements made by the man. Without prompting by the informant, the man confessed to committing the murder. As part of the discovery process, the prosecution listed the informant as a witness the prosecution intended to call in its case-in-chief. The defense attorney made a motion in limine to suppress the informant's testimony regarding the defendant's confession on the grounds that it was obtained in violation of the defendant's constitutional rights. Should the court grant this motion? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. No, because the confession was not obtained in violation of the defendant's Fifth Amendment right against self-incrimination or Sixth Amendment right to counsel.

Answer choice D is correct. A defendant's Fifth Amendment right against self-incrimination applies to custodial police interrogations. Interrogation refers to express questioning, as well as words or actions the police know or should know are likely to elicit an incriminating response. The Fifth Amendment right against self-incrimination does not apply to voluntary statements. Because the informant did not take any actions that were likely to elicit an incriminating response, there was no interrogation, and this was instead a voluntary statement. For these reasons, answer choices A and C are incorrect. A criminal defendant's Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant's attorney. As discussed above, however, the informant did not seek to elicit incriminating information from the defendant in this case. Accordingly, this confession was not obtained in violation of the defendant's Sixth Amendment right to counsel, and thus answer choices B and C are incorrect.

(E rt to counsel) A man was charged with murder. An attorney was appointed due to the man's indigence. The man consulted with his attorney. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to elicit incriminating statements about the crime from the man. In response to the informant's prompting, the man confessed to killing the victim. At trial, the man testified that, while present at the scene of the murder, he did not participate in the killing. When the prosecution sought to call the informant as a witness to testify as to the man's prior contradictory confession, the defense attorney objected on the grounds that the confession had been obtained in violation of the defendant's constitutional rights. Should the court sustain this objection? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. No, because the confession was to be used for impeachment purposes. No, because the man, as an indigent, was provided with an attorney and was able to consult with his attorney prior to talking with the informant.

Answer choice D is correct. A defendant's Fifth Amendment right against self-incrimination applies to custodial police interrogations. Interrogation refers to express questioning, as well as words or actions the police know or should know are likely to elicit an incriminating response. The Fifth Amendment right against self-incrimination does not apply to voluntary statements. Because the informant did not take any actions that were likely to elicit an incriminating response, there was no interrogation, and this was instead a voluntary statement. For these reasons, answer choices A and C are incorrect. A criminal defendant's Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant's attorney. As discussed above, however, the informant did not seek to elicit incriminating information from the defendant in this case. Accordingly, this confession was not obtained in violation of the defendant's Sixth Amendment right to counsel, and thus answer choices B and C are incorrect.

(m/e police interro) A woman was suspected of murder in the shooting death of her husband and was taken into custody. The interrogating officers did not read the woman her Miranda rights, but instead waited in the room for another officer to arrive. After ninety minutes of waiting, the woman became extremely agitated and blurted out, "I did it! I killed him, and I threw the gun into the river!" The police dragged the river and recovered a gun, and ballistics tests confirmed that the gun was the murder weapon. At trial, the woman's attorney moved to suppress introduction of both the confession and the gun as evidence. How should the court rule? Answers: Suppress both the confession and the gun. Suppress only the confession. Suppress only the gun. Suppress neither the confession nor the gun.

Answer choice D is correct. Any statement obtained as the result of a custodial interrogation may not be used against a suspect at a subsequent trial unless the police first inform the suspect of her Miranda rights. Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant knowingly and voluntarily waives those rights. Volunteered statements, however, are not protected by Miranda. Here, the woman's statements were not made in response to any interrogation on the part of the officers, but rather, were blurted out in a moment of panic before the interrogation began. Therefore, there was no violation of Miranda. Answer choices A and B are incorrect because the confession was voluntary and therefore not protected by Miranda. Answer choice C is incorrect because the gun would also be admissible. Derivative physical evidence obtained as a result of a non-purposeful failure by police to give Miranda warnings is admissible at trial.

(M pretrial procedure) A store owner whose jewelry store had recently been robbed was shown by a police detective a photograph of the defendant, who previously had committed other similar crimes. The store owner examined the photograph and then asked the detective whether the police believed that the man pictured was the robber. After the detective said, "We're pretty sure," the store owner stated that the man in the photograph was the one who had robbed her. The defendant was indicted for the robbery. His counsel moved to suppress any trial testimony by the store owner identifying the defendant as the robber. Should the court grant the motion and suppress the store owner's trial testimony identifying the defendant as the robber? Answers: No, because suppression of in-court testimony is not a proper remedy, even though the out-of-court identification was improper. No, because the out-of-court identification was not improper. Yes, because the improper out-of-court identification has necessarily tainted any in-court identification. Yes, unless the prosecution demonstrates that the in-court identification is reliable.

Answer choice D is correct. Even if an out-of-court identification procedure is unnecessarily suggestive, which this one plainly was, suppression of in-court testimony is not required if the eyewitness's identification is shown to be reliable under a multi-factor inquiry. Answer choice A is incorrect. An improper out-of-court identification procedure may require suppression of in-court testimony if it produces a substantial likelihood of irreparable misidentification. However, suppression of in-court testimony is not required if the eyewitness's identification is shown to be reliable under a multi-factor inquiry. Answer choice B is incorrect. An out-of-court identification procedure is improper if it is unnecessarily suggestive, which this procedure (involving just one photograph and the detective's leading statement) plainly was. Answer choice C is incorrect because, as previously explained, suppression of in-court testimony is not required if the eyewitness's identification is shown to be reliable under a multi-factor inquiry.

(m S&S) A defendant was visiting his girlfriend's home. Before leaving, he hid a knife in the kitchen cabinet without her knowledge. Later that day, the police arrived at the girlfriend's house to question her about a recent stabbing in which the defendant was a suspect. The police believed the girlfriend was withholding information and threatened to arrest her for obstruction of justice if she did not allow them to search her home. The girlfriend consented, and the police discovered the knife in the kitchen. The knife was later identified as the weapon used in the stabbing, and the defendant was charged and tried for the crime. The defendant moved to suppress the knife, and the prosecution objected. Is the knife likely to be admitted against the defendant at trial? Answers: No, because the girlfriend's consent to the search was not valid against the defendant. No, because the girlfriend did not provide voluntary consent for the search. Yes, because the girlfriend consented to the search. Yes, because the search did not violate the defendant's reasonable expectation of privacy.

Answer choice D is correct. Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. An individual generally does not have a reasonable expectation of privacy in the home of another in which the individual was merely a visitor (although an overnight guest may have a reasonable expectation of privacy). In this case, the defendant did not have a reasonable expectation of privacy in his girlfriend's home, and thus his rights were not violated by the search. Accordingly, the knife would be admissible. Answer choice A is incorrect because the issue is not whether the girlfriend's consent was effective as related to the defendant but instead whether the defendant had an expectation of privacy in his girlfriend's home. The defendant had no expectation of privacy in his girlfriend's home, and thus the issue of consent is not relevant in determining whether the evidence may be admitted against the defendant. Answer choice B is incorrect because, although the consent was likely not voluntary given the threats made by the police, the defendant's rights were not violated because he had no standing to raise this challenge. Thus, although the girlfriend might be able to suppress evidence from the search used against her, the defendant would have no such right. Answer choice C is incorrect because it is not relevant whether there was consent for the search or whether the search itself was legal. The search did not violate the rights of the defendant, and thus he may not suppress evidence found during the search.

(m/e S&S) Police in a rural community obtained an anonymous tip that a resident of the community was producing opium from poppies grown in flower beds immediately behind his house. Since police could not access or view the beds without trespassing on the resident's property, the police contacted a local crop duster who used a helicopter in his business. At the police's behest, the crop duster took an officer and flew his helicopter over the residence at a height of 500 feet, confirming that illegal poppies were growing in the flower beds behind the house. Based on the crop duster's affidavit, the police obtained a warrant to search the area directly behind the house and seized the illegal plants. If the resident moves to suppress this evidence as a violation of his Fourth Amendment rights, how is the court likely to rule? Answers: Grant the motion, because the poppy plants were located within the curtilage of the residence. Grant the motion, because an anonymous tip cannot form the basis for probable cause to obtain a warrant. Deny the motion, because the warrant was based on a private citizen's affidavit. Deny the motion, because the inspection did not violate a reasonable expectation of privacy.

Answer choice D is correct. The Fourth Amendment only protects against unreasonable searches and seizures. A search occurs when governmental conduct violates a reasonable expectation of privacy. However, an inspection conducted from the air at a height of at least 400 feet does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment. Answer choice A is incorrect. Although the area immediately surrounding a residence (i.e., its curtilage) can be covered by the "umbrella" of the residence's Fourth Amendment protection, an inspection conducted from the air, whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy. Consequently, although the flower beds adjacent to the residence likely fall within its curtilage, the information visually obtained by the helicopter pilot while flying over the residence does not violate the resident's reasonable expectation of privacy. Answer choice B is incorrect. Information obtained from an anonymous tip cannot by itself serve as probable cause to obtain a warrant. However, it can if it is independently verified. Here, the crop duster brought an officer who independently verified that the resident was growing illegal poppies. Answer choice C is incorrect. Although the crop duster was a private citizen, in flying over the residence, the crop duster was acting at the behest of the police, and even took an officer with him. Police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct an unreasonable search. However, in this case, the fly-over was not an unreasonable search because the resident did not have a reasonable expectation of privacy in the visual information gained by the crop duster from the fly-over. Therefore, the conduct was legally permissible.

(E S&S) Police executed a valid warrant to search for heroin in the defendant's residence. Finding the defendant at home, the police detained him in handcuffs for the duration of the search. The police found a small amount of heroin in the defendant's bedroom during the search. Upon the completion of the search, the police arrested the defendant for possession of heroin. The police then searched the defendant's person and found a larger quantity of cocaine. At his trial for possession of cocaine, the defendant sought to suppress the cocaine as having been unconstitutionally seized from his person. Should the court suppress the cocaine? Answers: Yes, because the handcuffing of defendant constituted a per se unreasonable seizure. Yes, because the police lacked probable cause to arrest the defendant for possession of cocaine at the time of his detention. No, because the police were authorized to seize the cocaine by a search warrant. No, because the cocaine was found pursuant to a search incident to a valid arrest.

Answer choice D is correct. The cocaine was found during a search of the defendant's person after the defendant was arrested for possession of heroin. This arrest was valid because the heroin was found during the execution of a warrant which authorized the search for it. Answer choice A is incorrect because, while a defendant's detention during the execution of a search warrant does constitute a seizure, a defendant's detention by handcuffing is not per se unreasonable. Answer choice B is incorrect because, although the police did lack probable cause to arrest the defendant for possession of cocaine at the time of his detention, the police could detain the defendant during the execution of the search warrant. Upon finding the heroin, the police were justified in arresting the defendant. Having arrested the defendant, the police could constitutionally perform a search incident to the arrest, during which search the cocaine was discovered. Answer choice C is incorrect because, although the police had a valid search warrant, the warrant authorized a search for heroin, not cocaine.

(M rt 2 counsel) The police, in conducting a search of a murder victim's home, found an unsigned handwritten note that contained a threat against the victim's life. The defendant was indicted for the murder and an attorney was appointed to represent the defendant. Several days later, in the early evening, a police officer knocked on the front door of the defendant's residence and demanded that the defendant provide the police with a handwriting exemplar, the text of which was based on the contents of the note found in the victim's home. Although the officer did not have a warrant, the defendant complied, feeling that he had no choice but to obey the officer. Prior to trial, the defendant's attorney filed a motion to prevent the prosecution's introduction of the exemplar as evidence at the trial because the taking of the exemplar violated the defendant's constitutional rights. Should the court grant this motion? Answers: Yes, because the officer's taking of the exemplar without a warrant constituted an unreasonable search and seizure under the Fourth Amendment. Yes, because the officer's taking of the exemplar violated the defendant's Fifth Amendment privilege against self-incrimination. Yes, because the officer's taking of the exemplar after the defendant had been indicted without the presence of the defendant's attorney violated the defendant's Sixth Amendment right to counsel. No, because the officer's taking of the exemplar did not violate the defendant's constitutional rights.

Answer choice D is correct. The taking of the exemplar did not violate the defendant's constitutional rights. Answer choice A is incorrect. The taking of exemplar did not require a search warrant because, since the defendant did not have a reasonable expectation of privacy in his handwriting, its seizure was not unreasonable. Answer choice B is incorrect because, as physical evidence, the handwriting exemplar does not constitute testimonial evidence. Answer choice C is incorrect because the taking of a handwriting exemplar, even after a defendant has been charged or indicted, is not a critical stage of the criminal proceedings that requires the presence of counsel.

(M rt to counsel) The police, in conducting a search of a murder victim's home, found an unsigned handwritten note that contained a threat against the victim's life. The defendant was indicted for the murder and an attorney was appointed to represent the defendant. Several days later, in the early evening, a police officer knocked on the front door of the defendant's residence and demanded that the defendant provide the police with a handwriting exemplar, the text of which was based on the contents of the note found in the victim's home. Although the officer did not have a warrant, the defendant complied, feeling that he had no choice but to obey the officer. Prior to trial, the defendant's attorney filed a motion to prevent the prosecution's introduction of the exemplar as evidence at the trial because the taking of the exemplar violated the defendant's constitutional rights. Should the court grant this motion? Answers: Yes, because the officer's taking of the exemplar without a warrant constituted an unreasonable search and seizure under the Fourth Amendment. Yes, because the officer's taking of the exemplar violated the defendant's Fifth Amendment privilege against self-incrimination. Yes, because the officer's taking of the exemplar after the defendant had been indicted without the presence of the defendant's attorney violated the defendant's Sixth Amendment right to counsel. No, because the officer's taking of the exemplar did not violate the defendant's constitutional rights.

Answer choice D is correct. The taking of the exemplar did not violate the defendant's constitutional rights. Answer choice A is incorrect. The taking of exemplar did not require a search warrant because, since the defendant did not have a reasonable expectation of privacy in his handwriting, its seizure was not unreasonable. Answer choice B is incorrect because, as physical evidence, the handwriting exemplar does not constitute testimonial evidence. Answer choice C is incorrect because the taking of a handwriting exemplar, even after a defendant has been charged or indicted, is not a critical stage of the criminal proceedings that requires the presence of counsel.

(E grand juries) Federal agents had a hunch that a local man was engaged in illegal gambling activities. An agent decided to enter the man's house while he was not at home and see what he could find. The agent discovered an envelope containing $5,000 in cash and an executive's business card. Returning the envelope to its place, the agent located and interviewed the executive, who admitted that he had paid the man $5,000 to settle a gambling debt; the executive also disclosed that the man regularly took illegal bets from the executive and several of his acquaintances. The agent then interviewed the acquaintances, who confirmed what the executive had told him. The agent then arranged to be introduced to the man at a local bar. After a few drinks, the man, unaware of the agent's identity, boasted that he was one of the biggest bookmakers in the state. The agent testified to all of his investigation's discoveries before a grand jury, which returned an indictment against the man for illegal gambling activities, based solely on the agent's testimony. The man's attorney then filed a motion to dismiss the indictment, claiming that it rested on violations of the man's constitutional rights. Should the court grant the motion? Answers: Correct Answer: No, because dismissal of the indictment is not the appropriate remedy. Yes, because much of the agent's testimony before the grand jury was inadmissible hearsay. Yes, because of the agent's unlawful search of the man's home. Yes, because of the agent's violation of the man's right to counsel.

Rationale: Answer choice A is correct. Dismissal of the indictment would not be warranted, because a grand jury is entitled to consider hearsay and is not limited by the exclusionary rule. Answer choice B is incorrect. A grand jury is entitled to consider hearsay, and courts will not look behind a facially sufficient indictment to review the sufficiency of the grand jury's probable cause determination. Answer choice C is incorrect because the Fourth Amendment exclusionary rule does not extend to grand juries or provide a basis for dismissing a facially valid indictment. Answer choice D is incorrect because there was no violation of any right to counsel that could justify dismissal of the indictment.