Legal Division Practice Exams - Use of force, 4/5/6th amendment, courtroom evidence, procedures, criminal law and officer liability

Lawson is still being tried for robbing a bank in 2015. Lawson's defense counsel has just finished presenting the direct examination of Annabelle Attaway. Attaway testified that she was with Lawson all day in Buchanan the day the bank was robbed in Fillmore. This alibi is relevant because it shows that Lawson could not have been in Fillmore to rob the bank. The prosecutor has learned that Attaway is Lawson's daughter. The prosecutor wants to ask Attaway whether she is Lawson's daughter in order to impeach her. The fact that Attaway is Lawson's daughter is:

"Blood is thicker than water." Witnesses may lie to defend their kin. Kinship between the defendant and his alibi witness impeaches the witness's credibility.

Two federal agents are convinced Johnny is a drug smuggler, but they have no evidence. They agree to beat Johnny until he tells them where he hides his drugs. Johnny is never harmed and never learns of the plan. These agents could be prosecuted under:

18 U.S.C. 241 This is the federal criminal conspiracy against rights statute. When two or more agents conspire to deprive a citizen of constitutional rights, this is the appropriate statute to bring a criminal prosecution.

Federal agent Adams is on duty when he sees Smith, the man who married his ex- wife. Still holding a grudge, Adams identifies himself as a federal agent and places Smith under arrest. Agent Adams has no legal reason to arrest Smith, so he just hits him a few times and then lets him go. Agent Adams could be prosecuted under:

18 U.S.C. 242 This statute makes it a crime to violate someone's rights while acting "under color of law." Since Agent Adams abused his authority and made this unlawful arrest, he is subject to prosecution for this offense.

Two state police officers beat a handcuffed prisoner until he identified his drug supplier. The prisoner sued the officers. The lawsuit is legally recognized under:

42 U.S.C. 1983 This statute authorizes civil lawsuits against state and local officials who violate federally protected rights

Which of the following best describes the impact of the rule against hearsay when admitting public records/documents and business records?

: The rule against hearsay has many exceptions which permit the admission of hearsay at trial. Notably, properly authenticated or self-authenticated [via seal or certificate] public records/documents and business records are admissible to prove the truth of the document's contents despite the rule against hearsay. However, this does not apply to law enforcement records Even though a law enforcement officer's report might be considered a public record, the rule against hearsay bars its admission to prove the truth of its contents. The officer must testify

Agents have reasonable suspicion that Fred uses email and the telephone in support of his criminal activity. The investigation is not at the point where agents have probable cause to get a warrant, but knowing who Fred corresponds with by way of email or speaks with on the phone would be relevant to this ongoing criminal investigation. Agents are interested in obtaining any or all of the following: the email addresses and phone numbers of those who email Fred and those that Fred calls or emails. Which of the following is correct concerning what "paper" agents must use to obtain this information?

A Trap and Trace court order for the incoming phone numbers and email addresses

What is a Bivens action?

A civil suit brought against federal government officials for denying the constitutional rights of others

Special Agent Smith has concluded his investigation of Joe Criminal for drug trafficking. Agent Smith explains his case to the AUSA. The AUSA accepts the case and obtains an indictment from the Grand Jury. Agent Smith obtains an arrest warrant and arrests Joe Criminal. When must Agent Smith prepare the criminal complaint?

A criminal complaint can be used to establish probable cause in support of a warrantless arrest. A criminal complaint can also be used to obtain an arrest warrant. However, when an indictment is used to obtain an arrest warrant, there is no need for a criminal complaint.

In a Bivens action, a plaintiff must allege which of the following elements:

A federal law enforcement officer violated a Constitutional right while acting under color of law. CORRECT: In a Bivens action, the plaintiff must allege two elements: (1) A violation of a Constitutional right, and, (2) by a person acting under color of federal law.

Crook is sentenced to 6 months in jail upon conviction of his crime. Crook got off easy. He could have been sentenced to eighteen months by the U.S. District Court judge. Crook has been convicted of a:

A felony is defined as a criminal offense for which the maximum penalty allowed is more than one year. The actual sentence is irrelevant in determining whether the offense is a felony or a misdemeanor. The determining factor is the maximum punishment allowed by the statute.

Pursuant to federal statute, what items are illegal to possess in a federal facility?

A knife that has a blade that is 2 1/2 inches long.

Special Agent Smith has probable cause that Joe Criminal purchased a small amount of marijuana. Rather than arrest Criminal, Agent Smith would like Joe Criminal ordered to come into court on his own to answer to the charges. Agent Smith would have Joe Criminal served with:

A summons directs a person to appear in court at a specific time and place regarding the crime charged in the summons. An arrest warrant commands an officer to make an arrest. A subpoena requires the appearance of a witness.

Agent Jones has a valid search warrant to search Fred's computer hard drive for evidence of wire fraud. During and within the scope of the types of data the warrant authorizes a search for, Fred sees what is clearly evidence of larceny of government property (unrelated to the wire fraud crimes). Fred continues the search for wire fraud and sees more evidence of larceny. He seizes this evidence of the larceny. Was the evidence of the larceny lawfully seized?

ALL the evidence of the larceny was lawfully seized. Correct. Fred stayed within the scope of the warrant, and so the larceny evidence he saw was lawfully seized under the plain view doctrine.

Two federal officers develop reasonable suspicion that Smith is about to rob the Federal Credit Union. The officers approach Smith, identify themselves as federal officers, and instruct him to place his hands on the wall. One of the officers conducts a frisk of Smith, and, upon touching Smith's right front pants pocket, discovers what is immediately apparent to him to be crack cocaine. The officer retrieves the cocaine and arrests Smith. At his trial for possession of narcotics, Smith files a motion to suppress all evidence obtained during the frisk. According to the law, this evidence will be:

Admissible, because the officer discovered the cocaine through the "plain touch" doctrine. CORRECT: Three elements must be present before the "plain touch" doctrine will permit evidence to be seized during a Terry frisk: First, the frisk itself must be lawful; second, the incriminating nature of the item must be immediately apparent to the officer; and third, the discovery is limited to the initial touching, without further manipulation. All three elements are present in this scenario

Police approach the home of Adams, whom they reasonably suspect is involved in a larceny. Adams is not there, but his wife is home. The officers explain they are looking for Adams and would like to talk to him about his clothing he was wearing the day before. Adams' wife states, "Those things are right here. I took them out of his duffel bag. Here they are" and hands them to the officer. The officers accepted the items. At trial, this evidence should be -

Admitted, as the items were procured through private action, and thus, were not a search under the 4th Amendment

Morgan, a convicted felon, lived in a trailer owned by his girlfriend, Jones. Jones, anxious to defend herself against a charge, made by another woman, that she kept drugs at her home, invited two police officers to search the trailer. When the officers came in, Morgan was sitting in the living room. The officers explained to him that Jones had given consent for the search, and they then proceeded to make their search. In the bedroom shared by Jones and Morgan, the officers found a small bag with what appeared to be marijuana residue inside. Jones denied that the bag belonged to her, and told the officers that some of the items in the bedroom belonged to the defendant. On an upper shelf in the bedroom closet, in a jumble of boxes, tins, and bags belonging partly to Jones and partly to Morgan, the officers located a generic, unmarked tin box. In that box, they found what they believed to be a bomb made of dynamite, wires, and .9 mm. shells. During this time, Morgan remained in the living room and offered no objection to the search. Through questioning Jones, it was determined that the tin box belonged to Morgan, not her. Morgan was arrested and charged with being a felon in possession of explosives. At his trial, he made a motion to suppress the evidence found in the tin box. According to the law, the evidence will be:

Admitted, because Jones had apparent authority to consent to the search of the tin box. CORRECT: As the owner of the trailer, Jones freely gave consent to the search of the trailer, including the bedroom. The tin box was not identified in any way as belonging to Morgan, nor did Morgan attempt to limit Jones' consent to her own personal property. It was reasonable, then, for the officers to think that the tin box was within the consent that Jones had given. It was also reasonable for the officers to think that Jones had authority not only over the premises, but also over all of their contents not obviously belonging to someone else

Marsh checked a suitcase at the airline counter and got onto an airplane. Before the suitcase was placed on the airplane, it was sniffed by a drug detection dog. The dog indicated that drugs were located inside which established probable cause to search the suitcase. With this knowledge, two DEA agents entered the airplane, approached Marsh, identified themselves, and asked him if they could look in the suitcase he had checked at the counter. Marsh stated, "I'm not traveling with a suitcase." Because the plane wasn't scheduled to take off for an hour (and Marsh didn't think he would miss the plane), Marsh voluntarily agreed to accompany the agents to the suitcase, was shown the suitcase, and was asked again if they could open it. Again, Marsh denied ever seeing the suitcase. The agents opened the suitcase and discovered contraband inside. At trial, the contraband should be -

Admitted, because Marsh abandoned the suitcase. CORRECT: By denying the suitcase was his, Marsh abandoned any REP he had in the suitcase and therefore, there was no 4th Amendment intrusion.

Smith was a federal agent who was authorized to drive a government vehicle 24 hours a day because of his duties. On his day off, he spotted some geese at his house that had been digging up his fancy landscaping. Attempting to scare the geese away from his lawn, he started his government vehicle and flashed his lights and siren. In his excitement, he accidentally put the car in drive and ran over his neighbor's mailbox. The neighbor can bring a successful lawsuit against which of the following:

Against Smith personally for negligence CORRECT: Since Smith was negligent, and not acting within the scope of his employment, the neighbor can file suit against Smith personally in state court

An undercover officer purchased controlled substances from King yesterday and today a warrant wasissued for King's arrest. Officers spotted King in his usual place in a high crime area where he had been seen selling drugs the day before from his car. King was arrested on the warrant. After arresting King and placing him in handcuffs, the officer had him sit in the back of the officer's vehicle. The officer then returned to King's vehicle and began to search it. Under the front passenger seat, the officer found a bag containing cocaine. Under the back seat, the officer found rolling papers. The officer then opened the trunk of the vehicle and began to search it. Immediately, 6 bricks of marijuana were discovered. At his trial for possession of controlled substances, King makes a motion to suppress all of the evidence found in his vehicle. According to the law:

All of the evidence is admissible. The cocaine and rolling papers are admissible because they were lawfully found during a valid search incident to arrest of the passenger compartment of the vehicle. Based on the recent warrant, the nature of the offenses, and activities observed on the day of arrest, the officers had reasonable to believe that evidence of the crime of arrest (drug sale) was in the vehicle. The bricks of marijuana are also admissible, not because they were found during a valid search incident to arrest of the vehicle, but under the mobile conveyance exception. The discoveries in the passenger compartment established probable cause to search the trunk of the vehicle.

Lawson is still being tried for robbing a bank in 2015. Based on the Courtroom Evidence test and lecture, which of the following CANNOT be used to impeach witnesses?

Although a prior felony CONVICTION 8 years ago could be used to impeach a witness, his mere ARREST, at least without more facts, could NOT be used to impeach the witness.

Which witnesses are generally permitted to testify from their notes and reports?

An expert witness, when so qualified as an expert by the judge, may state his opinion about the facts of the case if his opinion will assist the jury or judge in understanding key facts that fall in the witness's area of expertise. Because such testimony generally involves lots of details, experts may use their reports and analyses while testifying

What charging document is issued by the Grand Jury?

An indictment is the charging document issued by the Grand Jury when they find probable cause the defendant has committed the alleged offense.

What document is usually used to charge a felony?

An indictment is the usual charging document in a felony case. An information, which is signed by the U.S. Attorney, may be used to charge a felony if it is a non-capital case and the defendant waives his right to indictment

Barney is an off-duty federal law enforcement agent. He is sitting in a bar drinking beer and watching a football game. Fred, another patron in the bar who Barney has never met, is creating a disturbance, making it difficult for Barney to watch the game. Barney asks Fred to "hold it down." Fred walks up to Barney and hits Barney in the face, breaking two of Barney's teeth. Fred can be criminally charged with:

Assault under state law CORRECT: Fred assaulted and battered Barney, but did not commit any offense under federal law.

Lawson is still being tried for robbing a bank in 2015. A ski mask was found discarded in an outdoor trash can near the bank. There is a match between the DNA found in some spit in the ski mask and Lawson's DNA. Who MUST be available to testify in order for the prosecutor to authenticate the ski mask and admit it into evidence?

Authenticating the ski mask and admitting into evidence requires the prosecutor to lay a foundation by showing the chain of custody between the ski mask found in the trash can and the ski mask offered into evidence. Doing so requires the testimony of a person who found the ski mask (or saw it found) in the trash can

Two federal agents illegally search Smith's house. The agents know they are conducting an illegal search, but they hope they will not get caught. Smith learns of the illegal search and sues the two federal agents. This lawsuit is legally recognized under:

Bivens This case authorizes lawsuits against federal agents who intentionally violate an individual's 4th, 5th or 8th amendment rights 42 U.S.C. 1983 This statute authorizes civil lawsuits against state and local officials who violate federally protected rights, not federal agents.

Which of the following documents are generally self-authenticating?

Business records are generally self-authenticating. This means that to admit a public record, the custodian of a business record is not required to appear and testify in order to authenticate that record. Instead, the custodian can submit a written certificate stating that: [1] the record made at or near the time to which it pertains by "person" with knowledge of the matter; [2] the record was made in the regular course of business [NOT made specifically for trial] AND [3] the record was maintained in the regular course of business. Public records are self-authenticating if they are under seal or are accompanied by the custodian's certificate. This is true for federal, state, and local public records.. Public records are self-authenticating if they are under seal or are accompanied by the custodian's certificate. This is true for federal, state, and local public records.

Which is a correct statement with respect to authenticating (laying a foundation for) computer or electronic data that is admitted into court?

Circumstantial evidence, such as access to computers or data, fingerprints, and passwords, is valuable to prove who may have generated or had access to data. Correct: For example, in cases where data is found on a public computer or one to which many had access, circumstantial evidence is invaluable to connect the data to a particular person.

In which of the following situations would law enforcement officers need a Title III court order?

Conceal a microphone and transmitter in a vehicle to listen to the conversations that two targets have while in the vehicle. Title III is triggered here because there is a real time interception of an REP, oral communication, using a device, and without the consent of any of the parties to the conversation

Investigation reveals that a gang is operating a mobile meth lab and distributing large quantities of meth to various dealers. These dealers also move from location to location. Agents decide to use GPS and other tracking devices to try and determine where the current meth lab and dealers are. Which of the following activities would require the agents to obtain a warrant? (Assume that the gang members do not know of the agents' activities.)

Concealing a GPS or radio frequency tracking device inside a small package of meth precursor chemicals, sending it to the target, and monitoring where the package goes to include inside homes and factory buildings. A warrant is not required to install the device because there is no intrusion into REP.A warrant is required to monitor the device because the item will be tracked as it moves in REP areas

Congressman Johnson is walking from his Capitol Hill office to the Capitol Building to attend a session of Congress. He intentionally throws some trash down on the street, committing the misdemeanor offense of littering. Federal law enforcement Officer Smith observes this misdemeanor being committed. Officer Smith:

Congressman are not immune from prosecution. They are subject to felony arrest like any other person. However, they cannot be arrested for a non-violent misdemeanor while working as Congressman or traveling to or from work as a Congressman. They could be issued a citation.

Joe Citizen goes to visit Congressman Johnson at Johnson's office on Capitol Hill. Citizen criticizes Congressman Johnson so much that Johnson loses his temper and starts beating Joe Citizen. Federal law enforcement officers are called to the scene. These officers:

Congressman are not immune from prosecution. They are subject to felony arrest like any other person. However, they cannot be arrested for a non-violent misdemeanor while working as Congressman or traveling to or from work as a Congressman. They could be issued a citation.

Smith is arrested following indictment for drug trafficking. Pending his trial, will he be held in custody by the government?

Defendants must be released pending trial unless the government demonstrates they are a flight risk or a danger to the community. Many facts can be considered in this determination, including: the seriousness of the charged offense, the defendant's ties to the local community, and the defendant's past criminal record.

Roberts wants to smuggle counterfeit currency into Mexico. Through some acquaintances, he is placed in contact with an employee of the U.S. State Department who agrees to smuggle the counterfeit currency into Mexico in a diplomatic pouch, in exchange for a new Cadillac. They agree to meet in two weeks to make the exchange. However, the State Department employee reports this conversation to the FBI. At the subsequent meet, the FBI moves in and arrests Roberts. He is indicted for bribery under 18 U.S.C. § 201. Prior to trial, Roberts moves to dismiss the charge. His motion should be:

Denied, because a corrupt offering of something of value in exchange for an official act by a government employee meets the definition of bribery. CORRECT: It is unnecessary for the government employee in this case to actually receive something of value. The crime is completed when the corrupt offer is made.

Johnson is charged for failing to file income taxes. Prior to trial, Johnson makes a motion to dismiss the charge on the grounds that the indictment does not accuse him of actually performing an illegal act. Johnson's motion should be:

Denied, because a crime can be based on an act or a failure to act. CORRECT: The law can place an affirmative duty on an individual to perform certain acts, such as the payment of taxes or providing care to a dependent child; failure to comply with the statute is a crime.

Federal agents are investigating Davis for wire and mail fraud. They arrange to interview Davis at his home about the allegations. During the course of the interview, the agents ask Davis if they could search his home office for various documents. When Davis stayed silent, one of the agents responds, "Listen, if you say no, we're going to apply for a search warrant, and, if we get it, we're going to come back and search then." Davis then tells the agents they can search his home office. During the course of the search, documents are discovered linking Davis to the wire and mail fraud allegations. At his trial on these charges, Davis makes a motion to suppress the evidence found during the search of his office, claiming that his consent was not voluntarily given. According to the law, this motion will be:

Denied, because the agent's statement regarding his intent to apply for a search warrant was permissible. CORRECT: Submission by the individual to the authority of the law enforcement officer does not constitute consent. Consent is not voluntarily given in response to an officer's statement that the officer has come to search with a warrant when, in fact, there is none, or they will get a warrant if consent is withheld. However, it is permissible for officers truthfully to advise a person that they will apply for a warrant if consent is refused.

Perry is a paid police informant and has provided reliable information to officers on seven out of seven occasions. On January 7, 2000, Perry personally witnessed four personal-use drug transactions take place in Joe Clark's apartment. On November 28, 2000, Perry tells the officer about these observations. The officer applies for a search warrant for drugs based solely on this information. The request for the search warrant should be -

Denied, because the information provided by Perry is inadequate to establish probable cause. CORRECT: The information is stale because almost eleven months has passed since the drugs were seen in Clark's apartment and therefore there is no PC there are drugs there NOW

A law enforcement officer has a hunch that Roberts is trafficking narcotics. After observing Robertsspeed through a stop sign, the law enforcement officer decided to pull Roberts over for the traffic violation, so that he could try to discover evidence of narcotics in the vehicle. The officer turned on his overhead lights and performed a traffic stop. Once Roberts' car stopped, the officer approached the car and instructed Roberts to roll down his window. As Roberts did so, the officer was faced with the overwhelming odor of raw marijuana emanating from the car. The officer requested Robert's identification and registration, and Roberts complied. After checking the identification through dispatch, the officer wrote out a citation, had Roberts sign it, and returned the identification and registration documents to Roberts. Before Roberts could leave, however, the officer ordered him to step out of the vehicle. Roberts complied, and the officer began to search various areas within the car. In the trunk of the vehicle, under the spare wheel, the officer discovered what later turned out to be 10 kilos of marijuana. At his trial, Roberts filed a motion to suppress the evidence because of an illegal search of the vehicle. According to the law, this motion will be:

Denied, because the marijuana was found during a valid search of the vehicle's trunk. CORRECT: The odor of raw marijuana emanating from the vehicle gave the officer probable cause to search the vehicle without a warrant pursuant to the Carroll doctrine. When performing a Carroll search, an officer may look anywhere within the vehicle where what he is seeking could be hidden, which in this case includes the trunk.

An officer receives a report from the dispatcher about an armed robbery in the area, along with a description of the vehicle and the three men believed to have committed the crime. Spotting a vehicle matching the description, with three male occupants inside, the officer stops the vehicle to investigate. She directs the three occupants from the vehicle, and examines the vehicle for weapons. Under the front passenger seat, the officer finds a sawed-off shotgun and some ski masks. All three men are then arrested. At trial, the men file a motion to suppress the evidence found in the vehicle. According to the law, this motion should be:

Denied, because the officer was justified in looking under the front passenger seat for weapons. CORRECT: The report, the description, and the fact the vehicle and occupants generally matching the description is RS criminal activity is afoot. Because the crime under suspicion is one in which a weapon is often used, there is also RS the occupants are presently armed and dangerous. This permits a Terry frisk of the occupants and under the seat (as well as the passenger compartment and unlocked containers therein) for weapons.

Terry is indicted on a charge of murdering his boss. He was tried and convicted of the murder. Terry appeals his conviction, claiming that it should be overturned, because the prosecutor never proved at trial that he had a motive for committing the murder. His appeal should be:

Denied, because the prosecutor does not have to prove motive. CORRECT: Motive may be useful in explaining the prosecutor's theory of the case to the jury, but proving motive is not a requirement for a conviction

A local deputy sheriff arrests Hector for a state felony that occurred within the boundaries of the Wenatchee National Forest. Hector makes a motion to dismiss the charge, arguing that the deputy sheriff had no authority to make an arrest within the Wenatchee National Forest, because state laws do not apply within the National Forest. The judge finds that the Wenatchee National Forest is an area of concurrent jurisdiction. Based on that finding, Hector's motion will be:

Denied, because the state may always enforce its law in areas of concurrent jurisdiction. CORRECT: In areas of concurrent jurisdiction, both state and federal governments may conduct law enforcement activities and may prosecute for criminal violations in their respective court systems.

Fred and four of his friends rob a bank, but only Fred is arrested. Agents want Fred to provide information about the other four robbers. Fred invokes both his right to silence and counsel. Agents arrange with the AUSA and obtain use immunity for Fred for his involvement in the robbery. They then subpoena Fred to testify before the grand jury and a subsequent trial. Which of the following is true about this grant of immunity?

Evidence discovered or derived from Fred's testimony can not be used against Fred if he is prosecuted for any offense. Correct: Use immunity prohibits the government from using not only Fred's testimony against him, but information derived or discovered as a result of the immunized testimony. If the information Fred gave pursuant to the grant of immunity was already known to the government, it could be used.

Lawson is being tried for robbing a bank in 2015. Video shows that the robber wore an orange ski mask and a leather coat and carried a sawed-off pump shotgun. Investigators have established that Lawson was convicted of robbing a bank in 2010 while wearing an orange ski mask and a leather coat and carrying a sawed-off pump shotgun. Lawson completed his first-offender sentence and was released from prison in late 2014. The prosecutor wants to admit evidence relating to the 2010 bank robbery. Which of the following purposes would NOT support admitting evidence concerning the 2010 bank robbery?

Evidence of Lawson's earlier crimes, wrongs and misconduct cannot be used solely to show that he has the general propensity to commit crimes or the specific propensity to commit robberies. Evidence showing an earlier theft by Lawson combined with the argument that Lawson must have also committed a recent theft because, "Once a thief, always a thief," will not be allowed.

Which of the following statements best describes when evidence is relevant in a criminal trial?

Evidence will only be relevant if it tends to prove or disprove a fact in issue in the case.

Officer Smith believes force was reasonable to seize Jones. Which of her statements support the objective reasonableness test?

Facts support the objective test; mere conclusions do not. Officer Smith should state what she saw (... heard, smelled, etc.). Facts paint the picture - - so that a judge can visualize what happened - - and make an objective decision. That "Jones put one foot in front of the other like a boxer and clenched his fist" begins to paint the picture that Jones was a threat. Distractors a, b, and d, are just conclusions. They make the judge ask, "How ... How did Jones show pre-assault indicators?" or "Why ... Why was force necessary for officer safety?"

Which of the following mistakes in the handling of physical evidence would NOT be likely to ruin the chances of the government being able to authenticate and admit the evidence at trial?

Failing to ascertain the manufacturer and seller of the evidence could be useful in linking the evidence to the defendant, but doing so is not necessary to authenticate and admit the evidence. Forensically examining the original hard drive of a computer can modify its contents.

Agent Smith is scheduled to be the star witness in the case against Carl Criminal. Other Agents discovered that Smith had been disciplined in the past for lying during an administrative investigation into the alleged misuse of a government vehicle. The AUSA must tell the defense attorney about this under which of the following:

Giglio [Giglio v. United States, 405 U.S. 150 (1974)] requires that the government give the defendant any information about government witnesses that might reasonably be used to impeach them. This includes information about prior false statements. It also includes disclosing promises made to witnesses in exchange for their testimony, such a plea bargains made in exchange for testimony

Agents develop reasonable suspicion that Wooster is operating a stolen credit card ring. Upon seeing Wooster driving in his car one afternoon, the agents follow him. When he arrives at a shopping mall, the agents approach him, identify themselves, and tell him to put his hands on his automobile. One of the agents frisks him and, in the upper left hand pocket, feels what is immediately apparent to him as a stack of credit cards bound by a rubber band. The agent removes the credit cards and, ultimately, determines that they are stolen. Wooster's motion to suppress the credit cards will be -

Granted, because the agents performed an illegal "frisk" of Wooster. CORRECT: The officers only had reasonable suspicion criminal activity was afoot which would allow them to make a Terry stop and direct Wooster out of his car. The officers did not have reasonable suspicion that Wooster was presently armed and dangerous making the Terry frisk illegal. Remember: just because you have a Terry Stop doesn't mean you automatically get a Terry Frisk! In order to lawfully do a Terry Frisk on a detained person you have to articulate facts to establish a reasonable suspicion that the person is presently armed in dangerous

Armed with an arrest warrant for Jones for mail fraud and false statements, federal agents approach Jones' home. Surveillance has indicated that, in the previous 48 hours, no one other than Jones has entered or left the premises. The officers have no additional information that anyone other than Jones is located inside the twostory home. The agents knock on the door, announce their identity and purpose, and demand entry. When the agents hear footsteps running towards the rear of the residence, they use force to enter and make the arrest. Jones is arrested approximately ten feet from the back door of the residence. Two officers fan out to conduct a protective sweep of the home, and in the bathroom located on the second floor, discover marijuana shoved into the toilet tank. At his trial on possession charges, Jones files a motion to suppress the evidence found in the bathroom. According to the law, this motion will be:

Granted, because the marijuana was found during a search that violated the Fourth Amendment. CORRECT: There were two problems associated with the discovery of the marijuana in the scenario. First, an extended protective sweep requires reasonable suspicion to believe that an individual is in the home that could pose a danger to the agents. No facts exist in this question to justify the extended protective sweep in this case. Second, during a protective sweep, an agent may only look in those locations where a person could be hidden. In this case, looking into the toilet tank exceeded the lawful scope of a protective sweep

An officer is walking down a public sidewalk in the early evening hours, just after dark. Glancing in the direction of Sweeney's home, the officer notices that, while Sweeney has drawn the curtains in the front window, there is a gap through which the officer sees what he knows to be a large marijuana plant. The following morning, based solely upon this information, the officer seeks a search warrant for Sweeney's home. The request for a search warrant will be -

Granted, because the officer did not violate Sweeney's reasonable expectation of privacy in making the observation on which the search warrant will be based. CORRECT: The officer was in a public place (where he had the right to be) and the open curtain exposed the inside of the house to the public. The homeowner had no REP in what he exposed to the street outside. Accordingly, what the officer saw in the window was lawfully obtained and can establish information that may be used in the warrant.

Two officers develop reasonable suspicion that Smith is about to rob a convenience store. The officers approach Smith, place him under arrest, and search him. The officer conducting the search feels what is immediately apparent to him to be crack cocaine. The officer then retrieved the substance. At trial, Smith makes a motion to suppress the crack cocaine found during the search. According to the law, this motion should be:

Granted, because the officers acted illegally. CORRECT: The officers arrested Smith when they only had R/S. PC is required to arrest and therefore the search of Smith was illegal.

Federal agents obtain a valid premises search warrant to look for pornographic materials in Black's home. When the warrant is executed, the agents properly knock, announce their identity and purpose, and demand admittance. Black opens the door and the agents enter. Immediately, the agents notice that four other people are inside the house. One of the individuals is recognized as Black's live-in girlfriend, Courtney. The other three persons are unknown. Without hesitating, the agents order all five people to stand and face the wall, where a frisk is conducted for the safety of the officers. During the frisk of Courtney, one agent discovers what is immediately apparent to him to be crack cocaine. He reaches in, retrieves the item, and confirms that it is cocaine. Courtney is arrested. At her trial for narcotics possession, Courtney makes a motion to suppress the cocaine. According to the law, this motion will be:

Granted, because, pursuant to the premises search warrant, the agents could not conduct a frisk of Courtney. CORRECT: A premises search warrant does not allow law enforcement officers to either frisk or search persons who may be present on the premises at the time the warrant is executed. Instead, to frisk any individual present during the execution of a premises search warrant, agents need reasonable suspicion to believe that the individual is presently armed and dangerous. There are no facts present to support the belief that the persons in this scenario were either armed or dangerous

Fred is a federal employee suspected of harassing another agency employee in the government workplace. Special Agent Jones of the agency's Office of Inspector General is conducting an internal investigation of Fred. Fred is called to an interview is held in Jones' office. Fred is not under arrest and the setting is non-custodial. Fred is advised at the outset of the interview that he is obligated to answer the agent's questions concerning the misconduct, but that his answers and any information derived from his answers cannot be used against him in a criminal case. Which of the following is true?

If Fred admits to engaging in harassment, the admission could be used to fire him for harassment, but not to prosecute him criminally. Correct: The use immunity provided to Fred precludes use of his responses to criminally prosecute him. However, the immunity is limited to barring use in a criminal proceeding and does not bar use in an administrative disciplinary proceeding.

In 1995, Joe stole 2 computers which were the property of the Federal government. The statute of limitations for this Federal crime is 5 years. Joe was indicted for this offense in 2001. Which of the following statements is correct?

If Joe fled or concealed his identity to avoid prosecution, the 5 year statute of limitations "clock" does not run during this time. Applicability of the statute of limitations is very case-specific. Therefore, Federal law enforcement officers should not drop a case based on the statute of limitations without first checking with the U.S. Attorney's office.

In any felony case in which the government is NOT seeking the death penalty, who will decide the guilty defendant's sentence?

If a defendant is found guilty of a noncapital felony, the presiding judge conducts a sentencing hearing and sets the sentence. The jury is not involved UNLESS the defendant has been found guilty of a capital offense

After being indicted, Joe Criminal was arrested for drug trafficking. When will his Preliminary Hearing be held?

If an individual has been indicted or charged by information, they will not have a Preliminary Hearing.

The Grand Jury decides:

If the Grand Jury determines there is probable cause the Defendant committed the charged offense, it will issue an Indictment. This is called a "true bill." If the Grand Jury did not find probable cause, it would be a "no bill."

Fred's criminal enterprise involves sending and receiving faxes. Assume that agents have probable cause. Which is correct concerning how agents could obtain the faxes?

If the agents have probable cause paper copies of the faxes are located in Fred's house, they could use a search warrant issued by a Magistrate Judge. Correct. This does not involve Title III because there is no real-time interception.

Agents want to use video only surveillance (no audio) to determine who has been pilfering items from a commercial facility. Agents have consent from the facility owner to install the camera. Which of the below is a correct statement of the legal authority agents will need when deciding what images to capture and where they can point the camera?

If the camera is pointed at an REP area, a warrant is required. Correct. The 4th Amendment applies to the placement of video only surveillance as well as the images that will be captured. If access to REP is required to install the camera, a warrant or 4th Amendment exception is required. A warrant or a 4th Amendment exception is also required if the camera captures images in a place in which one has REP from being observed

Which of the following best defines the Best Evidence Rule?

If the original document is available, it generally must be used to prove the contents of the document.

Fred is arrested and is placed into a physical line-up to see if witnesses can identify him as the perpetrator. This line-up violates either Miranda or the 5th Amendment due process provision if:

In a line-up with 5 other people, Fred is at least 6 inches taller than any of the others. Correct: A line-up procedure cannot be "unduly suggestive." Line-ups where the participants are very dissimilar in appearance are unduly suggestive.

Joe Youngster is a juvenile and has been arrested by federal officers. Which of the following is correct with respect to providing Miranda warnings before the officers attempt to question Joe?

In addition, law enforcement must also advise the parents or guardian of the alleged offense. If Joe's parents or guardian are located and they want to speak to Joe, that must be allowed. Remember also that law enforcement must not make the identity of the juvenile known publicly without prior approval of the district court.

Brown is suspected of being involved in a conspiracy to traffic narcotics. Agents learn that Brown has a houseboat docked at a lake 147 miles from his home. While Brown has not been on the boat for more than two years, he has kept up the mooring fees and registration of the vessel. The agents reasonably suspect that evidence of the narcotics conspiracy will be found on the boat. Once the boat is located, three agents board the boat to conduct a search. While no evidence of narcotics trafficking is found, the agents do find evidence of an unrelated murder in the cabin. At his trial for murder, Brown makes a pretrial motion to suppress the evidence found on the boat. According to the law, this evidence will be:

Inadmissible, because the mobile conveyance exception to the warrant requirement does not apply in this case. CORRECT: The mobile conveyance exception to the warrant requirement does not apply in this casebecause probable cause is not present. The mobile conveyance exception requires both probable cause and ready mobility before a warrantless search can be conducted.

Assuming no one gives consent, which of the following would not require a Title III court order?

Intercepting tone only pager signals using a device. These are explicitly excluded from the requirements of Title III. Using GPS and other mobile tracking devices. These are explicitly excluded from the requirements of Title III. Real time interceptions of oral communications, in which there is no reasonable expectation of privacy (REP), using a device. Incorrect. Only those real-time, non-consensual interceptions, using a device, of oral communications in which there is REP require a TIII court order

Senator Demo casts the deciding vote on a bill that contains a big tax break to companies that import widgets from Mexico. Chuck is the president of a company named "Widgets International, Inc." His company will benefit financially from the passage of this bill. To show his appreciation for his vote in favor of the bill, Chuck gives $50, 000 cash to Senator Demo and pays for Senator Demo's Caribbean vacation. A disgruntled member of Senator Demo's staff reports this transaction to the FBI. The FBI should:

Investigate this case, as the facts presented constitute accepting a gratuity. CORRECT: Accepting a gratuity occurs when something of value was given to a public official for or because of an official act, in this case the senator's vote on a piece of legislation.

Federal agents have been trying for weeks to catch Williams, who they have a hunch is manufacturing false identification cards. Frustrated with their lack of progress and the fact that Williams "is getting away with a crime," agents walk up the sidewalk to Williams' front door, knock, and identify themselves as agents. Pursuant to the agents' request to come in and talk, Williams admits the agents into the house, where they gather in the living room. One of the agents looks down on the floor and beside his foot is what he immediately recognizes as a marijuana cigarette. The agent retrieves the marijuana, signals the other agents to leave, and all the agents depart without arresting Williams. Concerning the admissibility of the cigarette the agent seized:

It is admissible because it was seized pursuant to the plain view doctrine. CORRECT: The agents were granted consent to enter the house. They were lawfully present in the living room when an agent saw the cigarette on the floor. The requirements of the plain view doctrine were met: lawful presence, immediately apparent the item was evidence of a crime or contraband, and a lawful right to access the evidence.

Park Police officers see Ralston driving his car at an excessive speed on a park highway. Ralston isstopped for speeding and, during the investigation, the officers develop probable cause Ralston is driving while intoxicated. Ralston is arrested for that offense and his vehicle is towed to a secure, Park Police impoundment area. Pursuant to Park Police standardized policy to inventory all impounded vehicles within 24 hours, the officers inventory Ralston's car the next day. In the trunk they find a suitcase. They open the suitcase and discover a stash of counterfeit US currency. Concerning the admissibility of the currency in a court of law:

It is admissible because the agents lawfully opened the suitcase. CORRECT: This was a lawful inventory because there was a standardized policy. The officers did not exceed the scope of an inventory because the suitcase is a place where a person ordinarily stores personal property. Had the officers found the currency by cutting open a spare tire, for example, they would have exceeded the scope of the inventory because one does not ordinarily store personal property there.

Lawson is still being tried for robbing a bank in 2015. Lawson lives in Buchanan. The robbery occurred in Fillmore. The prosecutor wants to introduce evidence that Lawson's car was spotted parked at a convenience store in Fillmore shortly before the robbery to show that Lawson was in Fillmore that day and, hence, had the opportunity to rob the bank. What kind of evidence is testimony about the parked car?

It is circumstantial evidence that Lawson was also in Fillmore, but to reach that conclusion the jury must draw an inference that Lawson drove or rode in his car to Fillmore that day. There could be other explanations for why Lawson's car was there. Careful investigators will try to find other evidence supporting that inference. For example, Lawson's credit card could have been used to buy gas at the store and to pay tolls at a toll booth on the way in and the way out of Fillmore.

There is probable cause to arrest Jones for felony assault, but a warrant has not yet been issued. Officers call Jones at his home, verify that Jones is home, knock at the front door, announce their identity and purpose, and demand entry. While waiting for a reply, officers on the public street see what they immediately recognize to be a marijuana plant in the living room window. The officers receive no reply, so they force open the door and arrest Jones inside the house. During the protective sweep, they seize the plant they saw in the window. Concerning the admissibility of the marijuana plant at Jones's trial for possession of marijuana:

It is not admissible because the protective sweep was unlawful. CORRECT: See justification a. Because the entry was unlawful, the protective sweep was also unlawful. The officers were not lawfully present, making the plain view doctrine inapplicable.

John, a college student, became psychologically depressed. He leaves school to participate in a voluntary in-patient mental health counseling, where he is treated with Thoramaxaphilisophazine, a fairly new addition to the controlled substances act. While being treated, John tried to enlist in the Army, but was rejected because he was using Thoramaxaphilisophazine, prescribed by a doctor. Thoramaxaphilisophazine is a controlled substance used to treat depression. On his way home from one of his counseling sessions, John was stopped for a traffic violation. Officers lawfully obtained his consent and searched his car. They found a firearm properly stored in the trunk pursuant to law. John told the police it was his pistol. Based on these facts is John allowed under federal law to possess the firearm?

John is allowed to possess firearms. CORRECT: There are no statutory prohibitions identified in these facts what would prohibit John from possessing a firearm. It is the illegal consumption of controlled substances or addiction to controlled substance that is prohibited by statute.

Fred has been indicted for larceny and is not in custody. He has not asserted his right to counsel. Federal Agent Jones wants to talk to Fred about the larceny, plus another crime, arson. As to the arson, Fred has not been indicted, has not made an initial appearance, and theAUSA has not filed an information. Which of the following is a true statement?

Jones must get a waiver of 6th Amendment rights before he talks to Fred about the larceny. Correct: Fred's 6th Amendment right has been triggered because he has been indicted. Furthermore, law enforcement questioning (as well as being physically placed into a line-up or being in court for the charged offense) are critical stages. Since the 6th Amendment has been triggered and the questioning is a critical stage, Jones must first obtain a waiver of Fred's 6 th Amendment right to counsel. This would be accomplished by using the same form and waiver as is used in a Miranda situation.

What is the most significant difference in preparing a search warrant to search computers for data and a search warrant for physical items?

Must include a justification if agents want to conduct an off-site search.

Jack is arrested for assaulting Jill. As soon as Jack is arrested, and during the search incident to arrest and before Jack is read his Miranda rights, Jack screams out to the police, "Arrest me if you want to, but Jill got what she deserved." The officers then ask Jack his full name, date of birth, and SSN. Jack provides the information. Which, if either, of the statements that Jack made were obtained in violation of Miranda?

Neither statement. Correct: The first statement was spontaneous on Jack's part and not the result of law enforcement questioning. The second statement also did not constitute questioning (interrogation) under Miranda as it was a proper booking question.

Alex fences stolen merchandise. An Undercover Agent walks in to make a purchase, but Alex is hesitant to sell to her. After speaking with the Undercover Agent for a while, Alex gets comfortable with her and eventually makes the sale. Does Alex have a valid entrapment defense?

No, because Alex was in the business of being a fence. CORRECT: Alex was predisposed.

Officers arrest Fred for larceny, advise him of his Miranda rights and obtain a valid waiver of them. As the questioning progresses, officers believe that Fred has not been truthful. They tell Fred that his fingerprints were found on the stolen items that were recovered; this is not true. They also tell Fred that if he cooperates in the investigation, the officers will tell the AUSA (federal prosecutor) that Fred was cooperative. Fred confesses to the larceny. Was this confession obtained in violation of the 5th Amendment?

No, because Fred waived his Miranda rights before being questioned by police While there was no 5th Amendment violation here, police cannot threaten or coerce a person. Also, if the interrogation technique is such that a person's free will in making a statement is overborne, that too would result in a 5th Amendment violation. That was not the case here. Police are allowed to use trickery and deception during questioning to get to the truth, so long as the suspect's will is not overborne. Such practices, however, can NOT be used in obtaining a Miranda waiver. There is nothing improper in letting Fred know that if he cooperates, his cooperation will be made known to the AUSA. Telling Fred that if he confessed that his sentence or the severity of the charges would be reduced, however, would be improper.

Jones is a Park Ranger with the National Park Service. He sees Smith driving inside a national park. Based on reasonable suspicion that Smith has committed a federal felony (larceny), Jones gives chase and pulls Smith over. Jones directs Smith out of his car and after repeating the direction several times, Smith complies. Smith then is belligerent and argumentative, wanders about, keeps turning his side to Officer Jones and repeatedly reaches into the pocket that Jones can't see even after being told to keep still and keep his hands out of his pocket. Jones then places Smith into handcuffs, frisks him, places Smith into the rear of the police car, and frisks the passenger compartment and trunk for weapons. In the trunk Jones finds drugs in plain view that are offered against Smith at trial. Will the drugs be admissible at trial?

No, because Jones could not frisk the trunk under the facts provided. CORRECT: A frisk of Jones for weapons is permissible because there is RS he is presently armed and dangerous based upon his belligerence, movements, non-compliance, and the way he kept reaching into his pockets and turning away. The vehicle can also be frisked but the trunk cannot. Also, Jones had only RS and there are no facts that give him PC to go into the trunk

Alex, an undercover agent, offers to provide Tom with the single remaining ingredient Tom needs to manufacture counterfeit US currency for a moderate share of the eventual proceeds. Tom agrees and they go into business together. When Toms is prosecuted for counterfeiting, will Tom have a valid entrapment defense?

No, because Tom was predisposed. CORRECT: Predisposition negates entrapment.

Based on their investigation, federal agents obtained a search warrant to search Smith's residence. The search warrant did not specifically list any vehicles to be searched, but rather authorized the search of the entire premises for methamphetamine. On the day the search was conducted, Smith's vehicle was parked in the driveway of his residence. During the course of the search, agents discovered numerous items of evidence, including a briefcase containing a vast quantity of methamphetamine. The agents then decided to search the vehicle, although they weren't sure any evidence was inside it. Inside the trunk of the vehicle, several kilos of cocaine were found. At his trial for drug trafficking, Smith made a motion to suppress the cocaine found in the vehicle's trunk. Did the agents violate the Fourth Amendment?

No, because it was found during the execution of a valid premises search warrant. CORRECT: A search warrant authorizing a search of a certain premises includes any vehicles owned or controlled by the owner of the premises searched and located within its curtilage if the objects of the search might be located in those vehicles. In essence, the vehicle is treated as if it were part of the premises covered by the warrant. It should be remembered, however, that if the owner of the premises has a vehicle that is parked off the curtilage, it cannot be searched pursuant to the premises search warrant.

Officers arrest Fred for larceny. When giving Fred his Miranda warnings, they tell Fred he has been arrested for larceny. Fred waives his Miranda rights and talks to officers. During the course of the interview, the officers realize that Fred is not only a thief, but also possessed a small amount of marijuana (a misdemeanor). They ask him questions about his drug possession to which Fred confesses. Were Fred's statements about his drug possession obtained in violation of Miranda?

No, because officers had a proper Miranda waiver. Correct: Officers may, but are not required, to tell a suspect the offenses about which they intend to ask questions. Once Fred waived his Miranda rights, officers may question him about any offense

Based upon reasonable suspicion that Fred is involved in a larceny, officers Terry stop Fred. As soon as the officers approach, Fred says, "Don't bother asking me any questions. I have a lawyer." After some more investigation the officers develop probable cause that Fred committed the larceny. The officers arrest Fred 10 minutes later and take him to the office. There the officers read Fred his Miranda rights which Fred waives. Fred confesses to the larceny. Did the officer's actions violate Miranda?

No, because one cannot invoke Miranda rights in anticipation of the arrest. Questioning of a person after a Terry stop, and where the stop is not the functional equivalent of an arrest, does not require Miranda.

Federal agents suspect that Martin is dealing in narcotics from his home, a felony offense, but have not been able to obtain enough evidence to justify issuance of a search or arrest warrant. They take up surveillance from various positions around the neighborhood, while an undercover officer approaches the residence in an attempt to buy narcotics. As the agents observe, the undercover officer approaches Martin, who is sitting on hisfront porch, and engages in a lengthy discussion. When an object is transferred between Martin and the undercover officer, the officer gives the signal that narcotics have been exchanged. The agents, dressed in raid jackets and marked vehicles, descend on the house to arrest Martin for narcotics distribution. As Martin sees the agents approach, he turns, runs directly into his home, and slams the door behind him. One of the agents breaks through the door, and is able to catch Martin as he is trying to run through the kitchen. Martin has a bag of what appears to be cocaine in his hand when he is arrested, and various other drugs are found on a table next to where the arrest occurred. Did the officers violate 18 U.S.C. § 3109 (the Federal "knock and announce" statute)?

No, because the agents entered the house to make the arrest under exigent circumstances. CORRECT: Based on the signal provided by the undercover officer, the agents had probable cause to make the arrest. When Martin turned and ran into the residence, the officers were in "hot pursuit." They had probable cause to arrest for a felony, and a general and continuous knowledge (within reason) of the suspect's whereabouts.

The Jones Corporation is under investigation for fraud. Agents have reason to believe that the corporation possesses documents that will show it is engaged in the fraud. The agents obtain a subpoena for the records and serve it on Mrs. Smith, the records custodian. Is Smith's claim that producing the records might violate the corporations 5th Amendment right against self incrimination valid?

No, because the corporation does not have a 5th Amendment privilege against self incrimination. Correct: The corporation does not have a 5th Amendment privilege against self-incrimination.

While on patrol, Sue ran up to Officer Smith. She looked battered and bruised. Sue pointed to a man approximately 20 feet away and said: "Help me officer, that man just attacked me!" Officer Smith then arrested the man, later identified at Johnson. Several weeks later, Sue admitted she had lied about being attacked by Johnson because she wanted attention. As a result, the charges against Johnson were dropped. Can Officer Smith be successfully sued for arresting Johnson?

No, because the information provided by Sue was probable cause to arrest Johnson. CORRECT: Sue's statements provided probable cause to arrest. Officer Smith did nothing wrong in this case.

Thompson is suspected of running a counterfeiting operation out of his garage. The garage is attached to the dwelling. Without a warrant, three officers step onto his curtilage, shine a flashlight into the garage, and take a quick look. They observe a number of what appear to be $100 bills hanging from a clothesline. Was the observation into the garage lawful?

No, because the officers physically intruded on a constitutionally protect location without either a warrant or an exception to the 4th Amendment. The root of the question says that the officers were on Thompson's curtilage. The officers did not have a warrant to be there and there is no 4th Amendment exception. Accordingly, the observation was unlawful and the information they obtained cannot be lawfully used to obtain a warrant

Fred is arrested for arson. After being read his Miranda rights, Fred says, "I don't want to talk to law enforcement." The officers immediately end their attempt to question Fred and return him to his jail cell awaiting his initial appearance in the morning. About 2 hours later as the officers get ready to leave, they stop by Fred's cell and ask him if he would like to talk to them. Fred says he does want to talk, and the officers re-advise Fred of his Miranda rights all of which Fred validly waives. Fred confesses. Did the officer's actions violate Miranda?

No, because the officers were permitted to re-approach Fred. Because Fred invoked only his right to silence, and not counsel, officers may approach after a suitable cooling-off period to see if Fred has changed his mind.

Agents ask consent to search Fred's computer. Fred gives consent. When agents go to search the computer, they see a CD labeled, "Child Porn collection 1" sitting by the keyboard. The CD is seized and is immediately searched. Was Fred's consent legally sufficient to search the CD?

No, because the scope of consent did not include media not in the computer. Correct. A CD is not a computer, and that is all that Fred gave consent to search. If agents had asked to search for "evidence of crime" or to search "the computer and media," the consent would have extended to the CD. The seizure of the CD was valid because agents had probable cause it contained evidence of a crime, and it is reasonable to preserve the evidence from immediate destruction. But once the CD was seized, the exigency to search the CD can no longer be supported by the exigent circumstances exception.

After being issued a traffic citation, Morris decided to contest the ticket in court. On the day of his hearing, he approached the courthouse door and discovered that a magnetometer had been installed, with two security guards on either side of the device. As Morris got to the doorway, he was instructed by one of the guardsthat GSA regulations provided that anyone entering the courthouse would need to have their belongings searched and would need to step through the magnetometer. The purpose of these searches was to look for explosives or dangerous weapons. Morris refused to place his briefcase on the conveyor belt, stating that, because he had done nothing wrong, he did not feel it was proper to force him to endure this type of treatment. Whennotified that he would not be permitted to carry the briefcase into the courthouse without allowing the inspection, Morris grudgingly consented. When the briefcase was opened, one of the guards discovered a small bag containing marijuana in a side pocket. Was there a Fourth Amendment violation?

No, because the search was validly conducted pursuant to GSA regulations and in compliance with the Fourth Amendment. CORRECT: "Administrative inspections," though warrantless, are permissible under the 4th Amendment. A limited warrantless search of people (and their belongings) wishing to enter sensitive facilities is permitted if the search is part of a general practice (i.e., a regulation authorizing the inspection exists) and not for the purpose of securing evidence for criminal investigations. Both of those requirements are met in this case

Howard is arrested on a 6 year old warrant for income tax evasion as he is getting out of his car at his home. Howard has no other criminal history, and there is no reason to suspect that he has engaged in any otherinstance of income tax evasion or any other crime. As soon as he is handcuffed and his person searched, he is secured in the back of the patrol vehicle. Officers then search the passenger compartment of his car incident to arrest and find 10 ounces of marijuana in one ounce packages, scales, and baggies hidden in the glove compartment. The officers then decide to search the trunk of the car under the mobile conveyance exception and find 50 more ounces of marijuana hidden inside the spare tire. All the above evidence is seized and is offered as evidence at Howard's trial for possession with intent to distribute a controlled substance. Is the evidence admissible?

None of the evidence is admissible. CORRECT: The search incident to arrest of Howard's person was lawful and performed contemporaneous with the arrest. The officers could therefore search his person, and containers on his person, for weapons, means of escape, and any evidence of any crime. The search incident to arrest of the passenger compartment was not lawful. To search the passenger compartment of a vehicle when arresting an occupant or recent occupant, officers must be able to articulate that Howard still had access to the passenger compartment at the time of the search, and that was not the case as Howard was secured in the patrol vehicle. Officers could also perform a search incident to arrest of the passenger compartment if they had reason to believe that evidence of the crime of arrest was present. They had no such information. Had the search incident to arrest of the passenger compartment been lawful, the evidence found in the passenger compartment would have established probable cause there was evidence of crime in the trunk, and officers could have used the mobile conveyance exception to search there. Since the evidence found in the passenger compartment was unlawfully discovered, however, it cannot be used to establish probable cause for the mobile conveyance exception.

Two federal agents have been investigating Thomas and have reasonable suspicion to believe that he is selling false identification documents out of the trunk of his vehicle. Upon seeing him parked in a public parking lot, they approach him, identify themselves as federal agents, and ask him to place his hands on top of the vehicle. During the frisk that follows, one of the officers feels what he reasonably believes is a handgun. He retrieves the item and confirms that the object is a .22 caliber pistol. Knowing that Thomas was previously convicted of a felony (theft), the agent places him under arrest for being a felon-in-possession. A search of the vehicle incident to the arrest turns up a bag of false identification documents under the back seat of Thomas' vehicle. At his trial on weapons and false identification documents, Thomas makes a motion to suppress all of the evidence recovered by the agents. According to the law:

None of the evidence will be admitted. All of the evidence would be suppressed. The agents had reasonable suspicion to temporarily detain Thomas for investigation. However, they did not have the right to conduct a frisk on him, in that the offense being investigated is not generally associated with being "armed and dangerous." Because the frisk was impermissible (i.e., the agents did not have reasonable suspicion that Thomas was presently armed and dangerous), the pistol discovered during the frisk would be suppressed. The false identifications would be suppressed as the fruit of an illegal search (i.e., the fruit of an invalid search incident to arrest). Note that even if an SIA was permissible, the scope of a vehicle SIA does not include the trunk.

Instead of taking Frank's car to the John's chop-shop, Tom takes Frank's car to Bill's garage to get an oil change. Bill runs a reputable oil change business out of his garage. He has no idea who Tom is. However, the police see Frank's car and recognize it as the one stolen from Frank the Federal Agent the previous day. Under 18 U.S.C. §641, John should be charged with:

Nothing. CORRECT: There is no offense - Bill had no knowledge that the vehicle was stolen.

Tom sees Bob putting some of their office government computers into the trunk of his personal vehicle. Tom, thinking that Bob is stealing the computers, calls the local FBI office to report the theft. The FBI, as a result of a simple investigation, determines there was no theft, as Bob was simply taking the computers to the disposal office for turn-in prior to the office receiving new computers. Based on these facts, Tom can be charged with:

Nothing. CORRECT: Tom's statement was the truth, as he knew the facts. Tom did not lie - he honestly thought Bob was stealing office government computers.

Officer Smith stopped Jones car and ordered him out of the vehicle. She then decided to handcuff Jones. According to Graham v. Connor:

Officer Smith terminated Jones' movement by a means intentionally applied, which triggered the Fourth Amendment's objective reasonableness test. The seizure must be reasonable at its inception (why Officer Smith seized Jones in the first place); the force used to effect the seizure (were the handcuffs reasonable?); and reasonable in its duration (how long she held Jones.) To decide whether the handcuffs were reasonable, the court will apply the facts to the Graham and other factors for force.

Fred is arrested for arson. After being read his Miranda rights, Fred says, "I want a lawyer." The officers stop the attempt to question Fred. Consistent with Miranda, under which of the following circumstances may the officers again attempt to question Fred? (Assume Fred has no 6th Amendment right to counsel.)

Once Fred is released from custody or initiates questioning on his own. Correct: Miranda applies only to those in custody. In addition, Fred could reinitiate the questioning on his own, and if he did, he could be lawfully questioned if he then waived his Miranda rights.

Joe Smith robbed a bank in New York City. He is indicted and an arrest warrant is issued. Federal Agents arrest Joe Smith when they find him hiding in Cleveland, Ohio. Which of the following is a true statement about Joe Smith's case?

Once it is established that the Joe Smith who has been arrested is the Joe Smith identified on the arrest warrant, the Court may transfer (remove) Smith's case to New York for further proceedings. This is the most common scenario. It should be noted however, that if Smith wanted to waive his right to trial and plead guilty, his case could be resolved in Cleveland without transfer to New York.

Who is present when the Grand Jury is voting on whether there is probable cause to issue an Indictment?

Only the Grand Jurors may be present when the Grand Jury is deliberating and voting.

Which of the following statements, reports and references can be used to refresh a law enforcement witness's recollection or memory?

Only the witness's notes. A book, but only if it is from the witness's library. The witness's partner's notes, but only if the witness was present when the partner made the notes. Anything can be used to refresh a witness's recollection or memory

Which of the following documents are NOT generally self-authenticating?

Photographs are not self-authenticating even if taken by a law-enforcement officer

Casper, a retired federal law enforcement officer, walks into a restaurant to have dinner. As he is seated a man walks up to him and says, "Remember me? You are the "Fed" that arrested me and sent me to prison for five years." The man then punches Casper in the face, cutting his lip and knocking out his dentures. The suspect is arrested and charged with assault on a federal officer pursuant to 18 U.S.C. §111. This charge should be:

Prosecuted in federal court under 18 U.S.C. §111, because the suspect assaulted Casper on account of Casper's performance of official duties during his law enforcement career. CORRECT: The statute, 18 U.S.C. §111, authorizes prosecution if the assault occurs against a former federal law enforcement officer, so long as the assault is on account of the performance of official duties during such person's term of service.

Officer Smith used force to seize Jones. Jones sued for excessive force under the Fourth Amendment. Pick the correct statement about qualified immunity.

Qualified immunity is the officer's defense to standing trial in a civil case for a constitutional tort. It is the officer's defense - - and not her employing agency's. It is an affirmative defense - - meaning that the officer must raise it. And the judge must grant it, unless the officer violated a clearly established constitutional right. As a result, an officer can get qualified immunity in two ways.First, the force may be constitutional. But even if the force is not (constitutional) the officer may still receive qualified immunity if the judge finds that the law was not clearly established at the time.What's more, the judge is not required to go in any particular order, either. The judge may simply find that the law is not clear, and save the harder question for another day. If the judge finds that the officer violated a clearly established right based on Jones' (the plaintiff's) version of what happened, the judge must deny the officer qualified immunity. Denying the officer qualified immunity does not mean the officer is liable for a constitutional violation. It means that there may be a triable issue (or dispute between Jones and Smith) about what actually occurred for the court to decide. At trial, the burden of proof switches to Jones and credibility (who's telling the truth) would be very relevant

Officer Smith used force to seize Jones. Jones sued for excessive force under the Fourth Amendment. Pick the correct statement about qualified immunity.

Qualified immunity is the officer's defense to standing trial in a civil case for a constitutional tort. It is the officer's defense - - and not the employing agency's. It is an affirmative defense - - meaning that the officer must raise it. And the judge must grant it, unless the officer violated a clearly established constitutional right. As a result, an officer can get qualified immunity in two ways. First, the force may be constitutional. But even if the force is not (constitutional) the officer may still receive qualified immunity if the judge finds that the law was not clearly established at the time. What's more, the judge is not required to go in any particular order, either. The judge may simply find that the law is not clear, and save the harder question for another day. If the judge finds that the officer violated a clearly established right based on Jones' (the plaintiff's) version of what happened, the judge must deny the officer qualified immunity. Denying the officer qualified immunity does not mean the officer is liable for a constitutional violation. It means that there may be a triable issue (or dispute between Jones and Smith) about what actually occurred for the court to decide. At trial, the burden of proof would switch to Jones and credibility (who's telling the truth) would be very relevant.

Assuming no one gives consent, which of the following would require a Title III court order?

Real time interceptions of wire communications using a device. Correct. Using a device to perform a non-consensual, real time interception of a wire communication, whether there is REP in the communication or not, requires a TIII court order

Clyde buys some stolen computers from Tim. Tim tells Clyde that they were part of a shipment hijacked from Gateway. Actually, Tim stole the computers from FLETC. Based on these facts, Clyde can be charged under 18 USC §641 with:

Receiving stolen government property. CORRECT: Clyde knew the computers were stolen. He runs the risk the computers are federal government property. The correct offense is receiving stolen government property

Tom takes Frank's Fed car to his friend John who operates an illegal chop-shop. John has received cars from Tom in the past and likes dealing with him because Tom always brings him newer model cars. John's garage is raided by the police and Frank's car is discovered on the premises in various stages of "chopping." Under 18 U.S.C. §641 John should be charged with:

Receiving stolen government property. CORRECT: The government does not have to prove John knew it was government property, just that it was stolen property that belonged to the federal government

Special Agent Johnson is investigating Joe Criminal for illegal drug activity. As part of this investigation, Agent Johnson attempted to interview Willy Witness. Willy Witness appears to have information regarding Joe Criminal's illegal activity, but is unwilling to voluntarily answer Agent Johnson's questions. Regarding Willy Witness, Agent Johnson should:

Requiring an individual to appear before the Grand Jury is how the government can make uncooperative witnesses provide information. The government should not simply give up on this witness, nor should it offer him a bribe for his testimony. The mere refusal of this witness to answer questions when approached by a law enforcement officer does not constitute obstruction of justice.

What is the proper way of addressing a situation where the defense attorney asks a follow-on question that simply rephrases the previously asked question to which you have already provided a thorough response?

Respond by saying: "As I previously stated ....." CORRECT: This is how a witness addresses the repetitive question situation.

The defense attorney has requested the AUSA provide him with a copy of defendant's criminal record. The AUSA should give him this information according to:

Rule 16 requires the government to provide the defendant with a copy of his criminal record if he requests it.

The defense attorney has requested the AUSA provide him with a copy of defendant's prior statements. The AUSA should give him these statements according to:

Rule 16 requires the government to provide the defendant with a copy of his prior statements (except those oral statements made to agents who the defendant did not know were agents - such as undercover agents) if he requests it.

The AUSA learned much information from Willy Witness when Witness testified before the Grand Jury. The AUSA has shared this information with you, the Federal LEO. Who may you discuss this information with?

Rule 6(e) of the Rules of Criminal Procedure authorizes disclosure of Grand Jury information to any government personnel the government attorney deems necessary to assist with the criminal investigation. These personnel should be listed on the 6(e) list maintained by the government attorney.

Federal Officer Jones was driving his government car on the way to interview a witness to a crime under investigation. Jones became distracted, and ran into the back of Smith's car, causing $5000 worth of damage. In order to collect for his damages, 1) who should Smith sue, 2) in what court, and 3) who will pay the damages?

Smith should sue the United States in Federal court, and if Smith wins, the United States will pay the judgment. CORRECT: A federal employee acting in the scope of his employment is protected under the Federal Tort Claims Act. Therefore, if an employee injures someone while acting in the scope of their employment (meaning acting on behalf of the United States), the United States is the proper defendant under the Federal Tort Claims Act. The Federal Tort Claims Act also requires that the case will be tried in Federal District Court without a jury. The judge will decide if the United States is liable, and if so, for what amount. Additionally, there is a two year statute of limitations.

While testifying in court regarding an arrest and a search of a suspect, you are asked if your partner saw the same things that you did. How do properly respond?

State you cannot testify as to what your partner saw. CORRECT: Allow your partner to testify as to what your partner saw - do not testify as to what he saw; only your partner can testify as to what your partner saw.

42 U.S.C. 1983

Statue often used in civil rights cases that permits tort claim for deprivation of federal rights under the color of state law. Victims can use it in place/or in addition to intentional torts to gain personal rights

Federal agents develop probable cause that Gibson's garage contains a large quantity of counterfeit social security checks. They also have reason to suspect that, earlier in the morning, their confidential informant told Gibson that they were about to apply for a search warrant, and that Gibson indicated he would destroy the evidence after he returns home from an out-of-town visit. The agents approach Gibson's home and are certain he has not yet arrived and no one is at home. After discussing their options, the agents force their way through the garage door and into the home. During the subsequent search, they seize hundreds of counterfeit social security checks. Approximately ninety minutes later, Gibson returns home and is placed under arrest. At his trial, he makes a motion to suppress the evidence discovered during the warrantless search of his home. According to the law, this evidence will be:

Suppressed, because the agents had time to apply for a telephonic warrant. CORRECT: Occasionally, law enforcement officers are confronted with a situation in which they do not have time to obtain a warrant in the traditional manner due to the impending destruction or removal of evidence. Rule 41(c)(2) of the Federal Rules of Criminal Procedure provides for a search warrant based on oral testimony, such as communicated by telephone or facsimile machine. This procedure may drastically reduce the time it takes to obtain a search warrant. Thus, if law enforcement officers have time to attempt to secure a telephonic search warrant before the removal or destruction becomes imminent, the officers should attempt to do so. Failure to attempt to secure a telephonic search warrant, if the opportunity was available, may be considered in an unfavorable manner by a reviewing court.

Law enforcement officers receive notice from their dispatcher that there has been a homicide at a local apartment building. Arriving at the designated apartment, the officers notice that the door to the apartment has what appear to be bullet holes in it, and that the lock on the door is broken. Without first obtaining a search warrant, the officers push open the door and enter the apartment. Inside, they find a deceased male and a female who is unconscious, but appears to have suffered a self-inflicted gunshot wound to the chest. Emergency personnel are called, and both bodies are removed from the scene of the crime. After securing the apartment, two of the officers begin to process the crime scene looking for evidence. In a trashcan near the kitchen, the officers find a crumpled note. Not sure if it's evidence or not, the officers read the note and discover it was written by the woman. The note indicates that she had killed the man (her husband) because of an illicit affair he was having, and that she was going to kill herself. The woman recovers and is charged with her husband's murder. At her trial, she makes a motion to suppress the note found in the trashcan. According to the law, this evidence will be:

Suppressed, because the search by the officers was made without either a search warrant or an exception to the Fourth Amendment's warrant requirement. CORRECT: At the time the note was found, the officers were no longer lawfully on the premises. The exigency that justified their warrantless entry no longer existed, because the victim and suspect had been removed from the scene. To continue to search at this point, the officers needed to obtain a warrant.

The judge has suppressed some evidence that you obtained during the execution of a search warrant. While testifying at trial before a jury, you are asked about the evidence you found during the execution of the warrant. What is the proper way to address the evidence that was suppressed?

Testify to what you found, but do not mention the suppressed evidence, unless specifically asked a question about it. CORRECT: This is the correct way to handle a suppressed evidence issue

You are a Federal law enforcement officer and want Willy Witness to appear before the Grand Jury and testify. Who do you see about getting a Grand Jury subpoena?

The Assistant U.S. Attorney is the person who will issue subpoenas to appear before the Grand Jury.

Al is convicted of drug trafficking in U.S. District Court. Where would he appeal this conviction?

The Circuit Court of Appeals hears all appeals from convictions in District Court. If the Supreme Court did consider this case, it would not do so until after the Circuit Court made a decision. The state court systems do not consider appeals of federal cases.

Jones sued Officer Smith under the Fourth Amendment for using excessive force. Officer Smith believes the force was reasonable, but Jones believes it was not. From whose perspective will the court decide who is right?

The Court stated in Graham v. Connor that, "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene ..."

Dan Defendant has been arrested for felony drug trafficking. Where will his trial be held?

The District Court presides over felony trials. The Magistrate Court judge can conduct many non-trial proceedings in a felony trial, but he cannot preside over a felony trial itself. The Circuit Court and Supreme Court could only consider appeals from this case.

Pick one of the original Graham factors for judging police officers accused of using excessive force.

The Graham factors are (1) the Severity of the crime at issue; (2) whether the suspect was an Immediate threat to the officer or others; and whether he was (3) actively Resisting arrest or (4) attempting to evade arrest by Flight. Remember the acronym SIRF. (Note: You should be able to identify the Graham factors; to distinguish them from other factors used by the lower courts; and, to determine what not a factor.)

Willy Doe is a witness for the government at trial. Willy Doe signed a statement to Special Agent Smith prior to testifying stating he saw the defendant commit the crime. Is the AUSA required to give the defense a copy of this statement?

The Jencks Act requires that the written, recorded, signed, or adopted statement of a government trial witness be given to the defense attorney no later than after the witness testifies on direct-examination for the government, but prior to cross-examination. The government could give the statement to the defense attorney at an earlier time if it wished. The judge could also order the statement be provided earlier. Because the statement does not appear to contain any exculpatory information, Brady doesn't apply. Giglio requires the government to give the defense possible impeachment evidence about witnesses the government may call.

Smith is charged with a serious misdemeanor for which he could be sentenced to up to one year in prison if found guilty. Where will his trial be held?

The Magistrate Court can preside over any misdemeanor trial. However, for a Class A misdemeanor, (anything beyond a "petty offense," meaning any offense for which the defendant could be sentenced to imprisonment for more than 6 months but up to one year), the defendant has the right to insist on trial in the District Court. If the defendant waives his right to be tried in District Court, the trial will be held in Magistrate's Court.

Joe Criminal is arrested and taken to his Initial Appearance. What will happen there?

The Magistrate Judge will explain the charges to the defendant and advise the defendant of his rights. Evidence is not presented at an initial appearance.

What happens at the Preliminary Hearing?

The Preliminary Hearing is an adversarial proceeding before the Magistrate Judge. At the Preliminary Hearing, the government has the burden of proving that there is probable cause the case should continue.

What is the standard for judging police officers accused of using excessive force to seize a free citizen under the Fourth Amendment to the U.S. Constitution?

The Supreme Court stated in Graham v. Connor that all claims that law enforcement officers used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its objective reasonableness standard

Officer Smith had an arrest warrant for Jones, but Jones refused to obey her arrest commands. Pick the correct statement about intermediate weapons

The Supreme Court stated that police officers are often forced to make split-second decisions about the amount of force that may be necessary. Therefore, the less time an officer has, the more deference she should receive. But not every use of force requires split-second decision making. The more time the officer has, other (less intrusive) options may be available. What if Jones sits down in a chair and refuses to get up? Using an intermediate weapon may not be objectively reasonable in every case. Objective reasonableness requires an application the facts to the Graham and other factors for using force.

Jacques Pierre, a citizen of France, is arrested by a federal agent in Jacksonville, Florida. Pierre is not a U.S. Citizen, but he has applied for citizenship and is expecting to complete the process within the next two to three months. Assume that France is not on the Vienna Convention on Consular Relations (VCCR) "mandatory notification countries" list. Which of the following actions must the arresting agent take?

The VCCR applies to all detentions and arrests of foreign nationals, so long as they are not U.S. citizens. The arrestee's immigration status is immaterial. In this case, because France is not on the VCCR "mandatory notification countries" list, the arresting officer is not required to immediately notify the French Consulate. Instead, the officer must offer to notify Pierre's consular officials of the arrest. Whether consular notification will be made depends upon Pierre's response. (As for answer D, there is nothing in the question to suggest that Pierre is a foreign diplomat. Not all foreign nationals are foreign diplomats or have diplomatic immunity.)

Federal agents have an arrest warrant for Moore for failure to appear. At approximately 12:00 a.m. one night, the agents approach Moore's home, reasonably believing that he is inside. As they open the unlocked door and enter, all of the agents clearly announce, "Federal agents!" Immediately inside the door, Moore is found sitting on a sofa in the living room. On coffee table in front of him, the agents see a white powdery substance (later determined to be cocaine), scales, small baggies, and other pieces of drug paraphernalia. Moore is arrested, and is charged with possession of cocaine and drug paraphernalia. Which of the following statements is correct?

The agents were required to comply with Title 18 U.S.C. § 3109 (knock and announce) and failed to do so. CORRECT: The agents in this case failed to comply with Title 18 U.S.C. § 3109. Specifically, the agents failed to announce their authority and purpose. Merely stating "Federal agents" is insufficient. The agents must also state their purpose (e.g., "Federal agents with a search warrant"). Additionally, the agents in this case impermissibly used force to enter prior to being refused admittance. The term "refused admittance" means that an agent must wait a reasonable length of time before forcing entry, unless exigent circumstances exist.

Federal agents are conducting a surveillance of Johnson's house based on information that the house is being used to process and package cocaine. Agents standing on the public sidewalk look into Johnson's open living room window that is only 5 feet away. On the table in front of the window, agents see scales and bundles of what they immediately recognize as packaged cocaine. Agents knock on the door, Johnson answers, and the agents push their way in - without consent - and seize the cocaine. Concerning the admissibility of the evidence seized:

The cocaine is inadmissible because the plain view doctrine does not apply to the seizure of the cocaine under the facts presented. Though the agents were lawfully present when they saw the cocaine, and immediately recognized it as contraband, they had to have a lawful right to access the drugs to lawfully seize it. The information they obtained from the surveillance, however, could have been lawfully used to obtain a search warrant.

How will a reviewing court decide whether an intermediate weapon was objectively reasonable?

The court will apply the facts to the Graham and other factors for using force and decide whether the intermediate weapon falls within the range of reasonableness.

At what stage of a criminal trial is the defense required to present evidence to the court?

The defense is never REQUIRED to present evidence at any stage of the criminal trial. Instead, it is the prosecution's job to present evidence sufficient to establish defendant's guilt beyond a reasonable doubt. The defense can certainly choose to present evidence to establish the defendant's innocence, but it cannot be REQUIRED to do so

Lawson is still being tried for robbing a bank in 2015. Lawson's defense counsel has just finished presenting the direct examination of Calliope Calhoun. Calhoun testified that she was with Lawson all day in Buchanan the day the bank was robbed in Fillmore. This alibi is relevant because it shows that Lawson could not have been in Fillmore to rob the bank. The prosecutor has learned that Calhoun has a prior felony conviction. Which of the following MUST also be true in order to guarantee that the prosecutor can use the prior felony conviction to impeach Calliope Calhoun?

The felony conviction must be less than 10 years old, as measured from the later of: [1] the date Calhoun was convicted; or [2] the date Calhoun was released from prison. Older convictions can be used ONLY at the discretion of the trial judge

Officer Smith shot Jones with a firearm in the course of effecting Jones' arrest. Pick the correct statement according to the objective reasonableness test.

The heart of the Graham analysis is to weigh the nature of the intrusion (what the officer did) against the countervailing governmental interest (why the officer did it).

Joe Criminal robbed a bank in Brunswick, Georgia. Brunswick is in the Southern District of Georgia. Special Agent Smith arrested Joe Criminal in Macon, Georgia. Macon is in the Middle District of Georgia, adjacent to the Southern District of Georgia.

The initial appearance may always be held in the District of arrest. However, if the arrest is made in a District adjacent to the one in which the crime occurred, the defendant may be taken to that District for his Initial Appearance if the Initial Appearance can be held on the day of arrest.

The defense has filed a pretrial motion to suppress a key piece of the prosecution's evidence. A suppression hearing has been conducted, and both sides have presented evidence on the motion. How will the matter be resolved?

The judge does determine the motion to suppress. By filing its motion, the defense is trying to suppress the evidence. So if the judge grants that motion, the evidence IS suppressed and CANNOT be presented to the jury later to help it reach its verdict. And if she decides to deny the motion, the evidence IS NOT suppressed and CAN be presented to the jury later

What happens at the Arraignment?

The primary purpose of the Arraignment is for the Defendant to enter a plea.

The Supreme Court stated in Graham v. Connor that "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." What did the Court mean by that?

The reviewing court will only consider the facts that were reasonably known at the time. What is learned after the fact is not relevant. The relevant facts are viewed through the lens of a reasonable officer.

Johnson lived in Little Rock, Arkansas his whole life. Johnson and some friends in Arkansas developed a hatred of the Federal government, and decided to blow up the Federal Building in Dallas, Texas. Johnson, with the help of his friends, actually went to Dallas and blew up the Federal Building. Following extensive investigation, Johnson is eventually arrested by Federal Agents in New York and charged with blowing up the Federal Building. Where must Johnson's trial for blowing up the Federal Building take place?

The rules of venue state that the trial should be held in the District where the crime occurred. However, for good reason, the trial can be moved to another Federal Court in another District (change of venue). This is particularly true where the defendant is charged with a very horrible crime, creating a prejudice which prevents a fair trial in the District where the crime occurred.

Officers develop probable cause that Fred just attempted to rob a Wal-Mart at gun-point and is still inside the store. The officers find Fred and arrest him in the store. During the search incident to arrest, the officers do not find a gun. An officer asks, "Where is the gun?" and Fred says, "Over by the fishing reels." The gun is found where Fred said it was. The officer then asks, "Is this the gun that you used to try and rob this store?" Fred answers "Yes." At no time was Fred given Miranda warnings. Which of these statements was obtained in violation of Miranda?

The second statement ("yes") but not the first. Correct: The first question was a proper officer safety question. Although it produced an incriminating response, the question was not designed to elicit an incriminating response but for public safety because the officers had reason to believe the gun was somewhere in the store. (A proper officer safety question can also include asking an arrestee, "Do you have any weapons or objects on you that might hurt me?") Officer and public safety questions do not require Miranda warnings. The second question is not related to officer or public safety, but instead designed to elicit an incriminating response. That question required Miranda warnings and waiver.

Fred is at a restaurant and is using his computer. An agent can see the screen from an adjoining table and sees the screen contains an email that clearly constitutes wire fraud. As the agent walks up, Fred furiously starts deleting files. The agent seizes the computer and then immediately searches it finding evidence of wire fraud. Was the seizure and search of Fred's computer lawful?

The seizure was lawful; the search was not. Correct. The seizure was lawful because of the exigency that if the computer was not immediately seized, evidence of crime would be destroyed before a warrant could be obtained. Once this exigency ended with the computer's seizure, the ability to lawfully use this 4th Amendment exception ended.

Federal agents obtained an arrest warrant for Smith for bank fraud. Agents determine that Smith is single, lives alone, and is the only one at his residence. Agents lawfully enter Smith's house. They find Smith standing in the first floor entryway. Agent Brown does a protective sweep of the entryway coat closet and sees a shotgun as he opens the closet door. He seizes the shotgun knowing that Smith is a previously convicted felon and possession of a firearm by him is a federal offense. Agent Rogers does a protective sweep of the back, second floor bedroom and sees and seizes a stack of child pornographic magazines lying openly on top of the bed. Concerning the admissibility of the evidence seized

The shotgun is admissible; the magazines are not. The search incident to arrest permits looking into the entry way closet because it was in an area immediately adjacent to the place of arrest and could conceal a person. The shotgun was lawfully seized in plain view. (Lawful presence, immediately apparent it was evidence of a crime, and lawful right to access.) The scope of the search incident to arrest was exceeded upstairs because there was no reasonable suspicion anyone was upstairs. Since the scope of the sweep was exceeded, the agent was not lawfully present in the bedroom making the plain view doctrine inapplicable

What is the applicability of the knock and announce to the execution of search warrants of computers or for data?

The statute and its exceptions are both applicable. Both the statute and its exceptions are applicable. Data is easily destructible which can be the basis of an exception. Those who have computers or data that is evidence of a crime can present a danger to officers which can also be the basis of a knock and announce exception

You want Willy Witness to appear before the Grand Jury and testify. Willy Witness should be served with a:

The subpoena ad testificandum orders a person to appear and testify.

Other than one of the original Graham factors, what is another factor used by the lower courts that may be considered in determining whether force was reasonable? (Do not pick a Graham factor.)

The suspect's prior criminal history known to the officer at the time. This is one of the other factors.

Fred has been indicted for larceny and is in jail awaiting his initial appearance. He has not asserted his right to counsel. Agents decide they want to have an undercover officer pretend to be a fellow prisoner, get close to Fred, and report back any relevant information. Which of the following is correct?

The undercover officer may listen to whatever Fred says but may not attempt to question Fred about the larceny. Correct: Because Fred has been indicted, his 6th Amendment right to counsel has attached. Because the questioning will be done by (or at the behest of) law enforcement, it is a critical stage. Accordingly, a 6th Amendment waiver is required before questioning Fred If Fred had not been indicted, made an initial appearance, or there was no information filed, agents could lawfully use an undercover agent or confidential informant to question Fred without getting a waiver of any rights. Fred's 6th Amendment rights had not attached. Though Fred is in custody, he would not have Miranda rights because he would not questioned by one he knew was a law enforcement officer. An undercover agent or a confidential informant working for law enforcement, however, may act as a "listening post" to passively gather information Agents may use inmates, undercover agents, or confidential informants just listen to, but not question, Fred.

You are a Federal law enforcement agent investigating Carl Criminal. During your investigation, you witness Carl Criminal sell drugs on the street corner to a 12 year old girl. You then testify before the Grand Jury about this observation. Which of the following information could you tell your friends who are not involved in the investigation of Carl Criminal?

The witnessing of the drug transaction is not a "grand jury matter" and therefore, not secret under the grand jury secrecy rules. Accordingly, this information could be shared with others. However, the Grand Jury secrecy rules forbid the law enforcement officer from discussing the substance of his testimony before the Grand Jury. They also prevent him from stating he testified as a witness before the Grand Jury investigating Carl Criminal.

Who is present when the Grand Jury is listening to witness testimony?

These are the people present when a witness is testifying before a Grand Jury. Only the AUSA, the Grand Jurors, the court reporter, and the witness

Officer Smith went to arrest Jones. Jones bladed his body by putting one foot in the other, clenched his fists, and shouted at Smith, "I'm not going to let you arrest me!" Officer Smith used an intermediate weapon to effect the arrest. Other than one of the original Graham factors, what is another factor a reviewing court could consider to decide whether the force was reasonable? (Don't pick a Graham factor.)

This is another factor and very relevant in deciding whether Jones posed a credible threat, which is the most important Graham factor. In other words, was Jones 80-years old and frail - - or a young man, 6'2" and 200 pounds?

Which of the following statements concerning a law enforcement officer's notes and reports is NOT true?

This is false. The defense counsel will generally be provided the officer's notes and reports as part of discovery. If an officer's testimony differs from his notes and reports, the inconsistency CAN be used to impeach the officer

How will a reviewing court decide whether shooting a suspect was objectively reasonable?

This is most determinative in shooting cases. Significant threat? The threat may be immediate - - like someone who reaches for a gun. The threat may also be imminent - - like a terrorist who is attempting to evade arrest by flight. An escaped terrorists might pose an imminent threat to society if left at large

A prosecutor and an investigator are planning how to lay a foundation in order to authenticate and admit a bloody knife discovered at a murder scene. As they begin deciding which witnesses to call, which two issues must they resolve to the judge's satisfaction before the judge will admit the physical evidence?

This is the two-part standard. Meeting it generally starts with the testimony of the person who found the piece of evidence at the crime scene. That person should be able to testify that: [1] it is the same item she found and how she knows that it is—e.g., that the knife's serial number matches the one on the knife she found or that the knife is in a sealed evidence bag that she sealed and marked; and [2] that it is in the same condition as when she found it or, if not, how and why it has changed—e.g., that blood on the knife has dried and that a portion of the blood was scraped off for laboratory analysis.

18 U.S.C. 242

This statute makes it a crime to violate someone's rights while acting "under color of law." Had the agents identified themselves and carried out their unlawful beating, they would also be guilty of this offense.

When asked a question - you answer it, but the defense attorney is still looking at you in expectation that more information will be forthcoming. What should you do?

Wait for the next question to be asked. CORRECT: Simply wait for the next question to be asked.

Federal Agent Johnson just arrested Carl Criminal based on a warrant for drug trafficking. Procedurally, should he:

Whenever someone is arrested, they will be processed by the officer through the routine booking process. This would include fingerprinting, photographing, and taking basic biographical information from the suspect. The defendant would then go to the Magistrate Judge for his Initial Appearance without unnecessary delay, whether or not he was arrested pursuant to a warrant.

Billy Bob is an undercover federal investigator working hard to obtain evidence against Harry Doubletree in a sophisticated scheme to defraud a wealthy widow. While working in an undercover capacity, Billy Bob confronts Harry Doubletree with facts indicating the scheme to defraud the widow. This makes Harry Doubletree mad, so he punches Billy Bob in the face. When he hit Billy Bob, Harry Doubletree had absolutely no idea that Billy Bob was a federal investigator. Can Harry Doubletree be successfully prosecuted for Assault on a Federal Officer under 18 U.S.C. § 111?

Yes, because Billy Bob was working in an undercover capacity. CORRECT: Billy Bob was assaulted while in the performance of his duties. The perpetrators knowledge of Billy Bob's status is not an issue when the officer is in the performance of his duties (working in an undercover capacity).

Bob, being lawfully interviewed while in custody by a federal criminal investigator, was asked if he committed the crime. Bob answered "NO." However, the investigator found overwhelming evidence, to include a video of the event, that Bob had in fact committed the crime. Has Bob committed an offense under 18 U.S.C. §1001, False Statements.

Yes, because Bob lied to police about something the police need to know regarding the offense commits a false statement. CORRECT: False material statements are offenses under the statute. Lying to police, to include making an exculpatory "No" statement about something the police need to know is a material false statement. If Bob did not want to commit the offense, all he had to do was to remain silent.

Bubba calls the Secret Service and says he knows about a plot to kill the Attorney General of the US. This conversation is oral, and is not recorded, and not sworn. The Secret Service discovers that there is no plot to kill the Attorney General, Bubba made the whole thing up to get attention from his girlfriend. Has Bubba committed a federal offense under 18 U.S.C. §1001.

Yes, because Bubba's statement that caused the government to investigate was known by Bubba not to be true. CORRECT: Bubba made a false material statement, because he knew the statement was not true and that his statement caused the government to investigate the falsehood.

Fred is arrested for shoplifting at the FLETC Express store (a misdemeanor). He validly waives his Miranda rights. About an hour into the interview, Fred realizes things are more serious than he thought and he says to the officers, "A lawyer might be a good idea." May the officers continue questioning Fred?

Yes, because Fred did not invoke his right to counsel. Correct. Fred's statement is not considered to be an effective assertion of the right to counsel because it was ambiguous (unclear) While the Supreme Court has said that clarification of the statement is a "good police practice," clarification is not required under the law

Based on reasonable suspicion that Jack is a bank robber they are looking for, officers perform a Terry stop at gun point, put him on the ground, handcuff him, perform a Terry frisk, and place him in the back seat of the patrol vehicle. 25 minutes later, the officers leave the scene and transport him to the office downtown. 15 minutes later when they arrive at the office, officers leave Jack in the cruiser and in cuffs, and then begin to question him. At this time, officers have not placed Jack under arrest, and they have not given Jack Miranda warnings. Jack confesses. Was this confession obtained in violation of Miranda?

Yes, because Jack was in custody for purposes of Miranda. Correct: While the officers might have intended only a Terry stop, the facts here would lead a reasonable person to believe they were under arrest given the length of time Jack was detained, the manner in which the stop was conducted, the time Jack was in restraints, and the fact that he was transported from the scene.

Johnson is arrested for drunk driving and failing to pay child support. He agrees to share information with the police to avoid prosecution. Having been personally involved in every aspect of an ongoing stolen paycheck operation, Johnson explained the intimate details to the police of what he saw and did with Fred, a co-criminal. Based on his statements alone, the officers seek a search warrant for the co-criminal's premises where Johnson stated he saw many of the stolen checks the day before. Can Johnson's statement alone establish Probable Cause to support a warrant application?

Yes, because Johnson's statements amount to probable cause under a totality of the circumstances using the Illinois v. Gates test. CORRECT: The information known to the officers show both that Johnson was reliable and had a basis of knowledge in what he told the officers. Furthermore, because he is a co-criminal, the information he provided is presumed reliable. Under a totality of the circumstances this is enough to establish probable cause.

Fred is arrested for making harassing phone calls and is in custody. Some of the calls were recorded. Officers want a voice exemplar (sample) of Fred's voice to compare Fred's voice to the recordings. Without giving Fred Miranda rights, officers obtain a subpoena and court order directing Fred to give the voice exemplar. Can Fred be required to provide the voice exemplar over his objection?

Yes, because giving the exemplar is not protected by the 5th Amendment. Correct: The exemplar is "non-testimonial" and therefore not protected by the 5th Amendment

Fred is lawfully arrested. He has a pager on his person. Can agents search this pager without a warrant?

Yes, because searching the pager is within the scope of an SIA. Search incident to arrest Correct. Pager data is perishable and can be searched SIA (unlike cell phones which cannot be searched SIA.)

Fred was arrested for selling counterfeit currency shortly after an undercover buy operation and a brief chase down a street. The arresting officer immediately performed a search incident to arrest, but was surprised to find that Fred did not have the "buy money" on his person. Without advising Fred of his Miranda rights, the officer said "Okay, Fred, show me where the money is." Fred then pointed to some bushes 200 feet away next to the sidewalk where he had been chased, and the marked "buy money" was found there. Was this information obtained from Fred in violation of Miranda?

Yes, because the officer did not obtain a valid Miranda waiver. Correct: Whenever a known officer interrogates a person in custody, Miranda rights must first be given and a valid waiver obtained. Fred was under arrest by an officer. Law enforcement questioning includes not only asking questions that might elicit a criminal response, but any conduct that might do so. The officer's statement to Fred is likely to elicit a criminal response (pointing). Accordingly, Miranda rights, and a valid waiver, were required before having Fred point to the money's location.

Officers arrest Fred and advise him of his Miranda rights. Fred understands his rights and verbally waives them. After 20 minutes of questioning, officers figure out that Fred is lying to them and so they tell Fred they will call the local Social Services office and have Fred's children taken away if Fred doesn't confess. Thereafter, Fred confesses. Was this confession obtained in violation of the 5th Amendment?

Yes, because the statement was coerced. Correct. Coercion in obtaining a statement is contrary to the 5th Amendment even if the subject waives his Miranda rights

Special Agent Jones is investigating Joe Criminal for bank robbery. One witness interviewed by Agent Jones says that Joe Criminal could not have robbed the bank, because Joe Criminal was not in town on the day of the bank robbery. Must the government inform the defense about this witness?

Yes, the Brady doctrine requires the government to inform the defense of any exculpatory information, whether or not requested by the defense.

Slick Willie stops at a truck stop. He sees a Roadway tractor-trailer parked in the lot with no lock on the cargo doors. He opens the doors and helps himself to several thousand pairs of gym shorts and t-shirts embroidered with the "FLETC" logo on the front and "Property of FLETC" on the back. The property was made under contract for FLETC, but has not yet been delivered. Slick Willie has no idea what FLETC is or what FLETC means. Is Slick Willie guilty of anything under 18 U.S.C. §641?

Yes, theft of government property. CORRECT: Someone who steals runs the risk that the property stolen is government property. Property made under contract for the government is government property. The government does not have to prove the suspect knew the property belonged to the government. All the government has to prove is that the property belongs to, or was made under contract for, the government.

Frank, the Federal Agent, while TDY, parks his unmarked federal government vehicle outside Denny's Restaurant while he stops for breakfast. He leaves the keys in the ignition. While Frank is inside, Tom steals the vehicle so that he can sell it to a stolen car ring. Tom did not know it was a federal government vehicle when he took it. Based on these facts, should Tom be charged with violating 18 USC §641?

Yes. Tom could be charged with theft of government property under 18 USC § 641. CORRECT: Tom took federal government property with the intent to permanently deprive the government of the property.

A tort is a type of lawsuit where

a citizen sues another citizen for damages as a result of a negligent or intentional act.

Agents know that Jack and Fred are members of a criminal conspiracy. To avoid their communications being intercepted by law enforcement, they only talk together when walking along trails in a local city park being careful to speak softly and avoid those that might be around who could overhear what they are saying. Agents decide to use a handheld parabolic microphone that can pick up human conversations at 250 feet without being detected. To lawfully use this device under these circumstances, what arrangements must the agents first make to comply with the law?

d. Request a Title III court order through the US Attorney for approval by a US District Court judge. Correct. The application would be submitted through the AUSA and US Attorney to the Department of Justice. If the application is approved, it would then be given to a District Court judge for approval. A US Magistrate Judge cannot act on the application

What information is required to trace a firearm?

manufacturer, model, serial number, caliber/gauge.

Officer Smith is watching Officer Jackson interview a prisoner. Convinced that the prisoner is lying to him, Officer Jackson hit and kicked the prisoner several times. Since this beating lasted several minutes, Officer Smith could have intervened and stopped the beating. However, Officer Smith decided to "mind his own business" and not get involved. The prisoner later sued both Officer Jackson and Officer Smith for the beating. Does Officer Smith have a valid defense to this lawsuit?

no, because he stood by while another officer violated the rights of an individual CORRECT: When a fellow officer is violating someone's civil rights, an officer has a duty to try and intervene.

If a court found that Fred abandoned his search for evidence of the wire fraud and began to look for evidence of the larceny - or just began to look specifically for evidence of the larceny - a court could likely find that

only the first evidence of the larceny would be admissible. This is so because Fred would be outside the scope of the warrant (evidence of wire fraud) and was therefore not "lawfully present" when he saw the evidence of the larceny. "Lawfully present" is a prerequisite to make a lawful seizure under plain view.

A federal agent is having dinner in a restaurant located in a federal park (an area of exclusive jurisdiction), when the manager, whom the agent knows, approaches him. The manager states that two young men have just left the restaurant without paying for their dinners (a federal misdemeanor), and asks the agent to arrest them before they can escape. The agent quickly leaves the restaurant and, based upon a detailed physical description given by the manager, is able to locate the two suspects walking down the sidewalk approximately two blocks from the restaurant. To arrest the suspects, an arrest warrant is:

required, because the offense did not occur in the agent's presence. CORRECT: Under federal law, warrantless misdemeanor arrests may be made in a public place if the crime was committed in the presence of the arresting officer. If the crime was not committed in the presence of the arresting officer, an arrest warrant must be obtained

What is the Brady Doctrine?

requires prosecutors to disclose materially exculpatory evidence in the government's possession to the defense. Evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused--evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.

Whenever evidence of a crime outside the scope of the warrant is seen, the best practice is to

stop the search, and request a warrant (sometimes called a 'secondary" or "piggy-back" warrant) to search for the newly discovered evidence.

Law enforcement officers, like other lay witnesses, are not permitted to read

their testimony from the witness stand. There are some limited exceptions. First, an officer might be permitted to state opinions as an expert witness qualified by the judge. Then the officer might be able to read from his expert report. This is rare. Second, even if the officer is testifying as an ordinary, non expert witness and forgets a fact, the judge may permit the officer to refresh his recollection by referring to his report. This is more common