9/8-MBE CRIMINAL PROCEDURE

Question 399 A defendant sought the services of an out-of-state attorney to represent her against a charge of felony animal abuse. This attorney was erroneously denied pro hac vice admission by the trial court. The defendant then hired an in-state attorney to represent her. The defendant was convicted of the crime, even though the in-state attorney provided the defendant with competent, adequate representation. On appeal, the defendant challenged her conviction on the basis that she was denied her Sixth Amendment right to counsel. How should the appellate court rule on this challenge? Answers: Reverse the conviction, because the trial court denied the defendant representation by the counsel of her choice. Apply the harmless error standard to determine whether to reverse the defendant's conviction. Determine whether there was a reasonable probability that the defendant would not have been convicted if represented by the out-of-state attorney, and if so, reverse the conviction. Deny the challenge, because the defendant was provided with competent, adequate representation.

Answer choice A is correct. A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant's choice, where that attorney is not provided by the state. The sanction for violation of this Sixth Amendment right is reversal of the defendant's conviction. Answer choice B is incorrect because the harmless error standard applies to the denial of the right to counsel only in non-trial proceedings. Answer choice C is incorrect because denial of the right to counsel at trial results in the automatic reversal of the defendant's conviction. The defendant does not need to establish that the defendant was prejudiced by the denial. Answer choice D is incorrect because the defendant need not establish that the replacement counsel's representation was inadequate or that such counsel was incompetent in order to reverse her conviction.

Question 6242 A reliable informant called police and told them that he had just witnessed a hit and run accident. The informant believed the driver was intoxicated based on her observation of the driver stumbling out of a bar, getting into a car, and subsequently crashing into another car in the parking lot and immediately driving away. When the police sent a cruiser to the location where the informant had placed the car, they saw a green compact car driving slowly on the shoulder of the road. The driver and vehicle matched the informant's description. A woman was riding in the back seat as a passenger. As the police watched, the car stopped and the woman got out and started walking along the shoulder. The car pulled away, weaving slowly, and the woman raised her arm to hail a taxi. The police stopped the green car and searched the driver's person and the car. They then approached the woman, demanded that she hand over her backpack, and searched it without her consent. In the backpack, they found a small bag of cocaine. The police arrested the woman for drug possession. At the woman's trial, should the judge allow the prosecution to introduce evidence of the cocaine? Answers: No, because the fact that she had been in the car is not enough to support the search. No, because the police should have obtained a warrant to search the backpack after seizing it. Yes, because she was riding in the car, and the informant's report constituted probable cause. Yes, because the fact that she may have left the scene constituted an emergency for police.

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

Question 417 Police arrested the defendant at her home that she shared with her parents as an accomplice to a robbery. Before leaving the home, the police asked the defendant, who was 18 years old, whether she was at the place of the robbery at the time that it took place. She indicated in the affirmative. As the police were leaving the home with the defendant for the police station, the defendant's mother returned. After learning of the situation, the mother urged the defendant to "come clean to the police." At the station, after the defendant was given Miranda warnings and signed a Miranda waiver, she was questioned in a non-coercive manner by police. Feeling compelled to follow her mother's advice, the defendant confessed to her involvement in the robbery. The prosecution sought to introduce the defendant's confession at trial over the objection of her attorney. Will the court likely sustain the objection? Answers: No, because the defendant waived her Fifth Amendment right to remain silent. No, because the defendant did not have a Fifth Amendment right to remain silent once she was arrested. Yes, because the defendant, prior to her confession, was not specifically told that her prior incriminating statement could be used against her. Yes, because the confession was not voluntary, but was given under compulsion.

Answer choice A is correct. A statement given by a defendant after receiving Miranda warnings generally may be used as evidence against the defendant. Answer choice B is incorrect because the Fifth Amendment right to remain silent applies when a person is subject by police to a custodial interrogation. Such was the case in this situation. Answer choice C is incorrect because Miranda warnings are sufficient to alert a defendant to her rights. The police are not required to expand upon those warnings, even where the defendant has made a prior incriminating statement that, because the defendant did not receive Miranda warnings before making the statement, cannot be used as evidence against her. Answer choice D is incorrect because the Fifth Amendment right to remain silent protects against police compulsion. Statements made under moral compulsion or at the behest of someone other than the police are not protected by the Fifth Amendment.

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

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

Question 6344 An undercover officer spread the word through a series of informants that he wanted to buy drugs. A well-known drug dealer called the officer, identified himself, and offered to sell drugs to the officer. The drug dealer was arrested, and the prosecutor sought to introduce the statements made by the drug dealer to the undercover officer at trial. The drug dealer's attorney objected that the statements should be suppressed on constitutional grounds. Should the statements be suppressed? Answers: No, because the drug dealer was not in custody. No, because the use of trickery by a police officer will not render a statement involuntary. Yes, because the informants were acting as agents of the undercover officer. Yes, because the drug dealer was coerced into making an incriminating statement.

Answer choice A is correct. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). In this case, the undercover officer sought to elicit incriminating responses from the drug dealer by putting word on the street that he wanted to buy drugs. However, the drug dealer was not in custody at the time that the incriminating statements were made to the undercover officer. Accordingly, the undercover officer was not required to inform the drug dealer of his Miranda rights prior to speaking with him. Moreover, Miranda warnings would not be required because the drug dealer was not aware that he was speaking to an undercover officer. Answer choice B is incorrect because, although the drug dealer's statements should not be suppressed, the use of trickery may render a confession involuntary, when considered under the totality of the circumstances. Answer choice C is incorrect because, although the undercover police officer sought to use informants to elicit incriminating statements from the drug dealer, the drug dealer was not in custody at the time that he made the statements to the officer. Further, there is no expectation of privacy in conversations carried on with government agents or undercover officers. Answer choice D is incorrect because the drug dealer was not coerced into making the statement to the undercover officer. To see if a confession was coerced, courts look to the totality of the circumstances, including the defendant's age, health, intoxication, and mental state. Nothing about these circumstances—a known drug dealer willingly trying to enter into a drug deal—points to coercion. A statement is not coerced just because it was made as a result of trickery, absent other circumstances.

Question 4233 The police obtained information on an upcoming drug shipment from a known informant who had provided reliable information in the past. Based solely on this information, the police obtained a warrant to search a known drug dealer's home on the following day, when the informant said the drugs would be delivered to the home. The warrant provided for the police to seize narcotics and related contraband, as well as "other fruits, instrumentalities and evidence of the crime at this time unknown." When they arrived at the drug dealer's home, rather than announcing their presence, the police promptly kicked down the door. They found the drug dealer and the defendant, whom they did not recognize, drinking coffee in the kitchen. One officer searched the drug dealer and the defendant, while the others searched the areas of the home specified in the warrant. The search of the defendant uncovered a handgun with an obliterated serial number, which the officer seized. It was later revealed that the handgun was stolen, that the defendant was a convicted felon, and that the gun was possessed illegally. The defendant was charged with crimes related to possession of the handgun. The defendant has moved to suppress evidence of the handgun, arguing that it was illegally seized. What is the defendant's best argument that the handgun should be suppressed? Answers: The police did not have independent justification to search the defendant. The police did not knock and announce their presence before entering the drug dealer's home. The search warrant constituted an impermissible anticipatory warrant. The search warrant was not based on probable cause.

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

Question 391 A defendant was tried before a jury for the crimes of possession of a controlled dangerous substance with intent to distribute and the lesser included offense of possession of a controlled dangerous substance. The jury acquitted the defendant of simple possession of a controlled dangerous substance, but deadlocked over the other charge. Subsequently, the prosecution sought to retry the defendant for the crime of possession of a controlled dangerous substance with intent to distribute. The defendant moved to dismiss the charge on double jeopardy grounds. Should the court rule in favor of the defendant? Answers: Yes, because the issue preclusion aspect of the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prevents the defendant's retrial. Yes, because the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prohibits the retrial of a defendant for an offense of which the defendant has been acquitted. No, because the prosecution may retry a defendant for an offense where the previous trial for that offense was terminated due to a hung jury. No, because the doctrine of collateral estoppel only applies to civil, not criminal cases.

Answer choice A is correct. The Double Jeopardy Clause encompasses the doctrine of issue preclusion. Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense. Answer choice B is incorrect because the defendant was acquitted by the jury of the lesser included offense of possession of a controlled dangerous substance, not the greater offense of possession of a controlled dangerous substance with intent to distribute. The jury deadlocked over the greater offense. Answer choice C is incorrect because, although the prosecution may generally retry a defendant where a trial is terminated for a manifest necessity, such as a hung jury, a retrial is not permitted where the issue preclusion aspect of the Double Jeopardy Clause would prevent such retrial. Answer choice D is incorrect because the doctrine of collateral estoppel can apply to a criminal case through the Double Jeopardy Clause.

Question 8591 One evening, a man was arrested for robbery. From jail, he called his sister and told her that he had been arrested, but made no mention of hiring a lawyer. The sister nevertheless employed a lawyer to represent the man. The lawyer contacted the police, told them that she represented the man, and requested to be present when the man was questioned. The police lied to the lawyer, telling her that the man had fallen asleep and would not be questioned that night. Instead, after giving the man his Miranda warnings, the police questioned the man for two hours before he voluntarily confessed to the crime. Although the man did not request a lawyer during his interrogation, the police did not tell him that his sister had secured one for him or that his lawyer had asked to be present during any interrogation. The next morning at his arraignment, the man was formally charged with robbery. Should the man's confession be excluded as a violation of his Sixth Amendment right to counsel? Answers: No, because he had not yet been arraigned when he confessed. No, because he waived this right by voluntarily confessing after receiving Miranda warnings. Yes, because a lawyer had been employed to represent the man before he confessed. Yes, because the police lied to the man's lawyer and failed to inform the man that his lawyer had requested to be present during his interrogation.

Answer choice A is correct. The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. In this case, formal judicial proceedings began when the man was arraigned for robbery the morning after he voluntarily confessed. Because he confessed to this crime before his arraignment, his Sixth Amendment right to counsel had not yet attached and therefore was not violated by the police. Answer choice B is incorrect. After receiving Miranda warnings, a defendant may waive his Sixth Amendment right to counsel, as well as his Fifth Amendment right to counsel. In this case, however, the man's Sixth Amendment right to counsel had not attached. Accordingly, he could not prevent the introduction of his confession into evidence based on his Sixth Amendment right to counsel. Thus, any waiver of that right is not relevant to the admissibility of the confession under these facts. Answer choice C is incorrect because the Sixth Amendment right to counsel does not attach upon a defendant's employment of a lawyer, but only upon the beginning of formal judicial proceedings. Answer choice D is incorrect. The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached.

Question 4237 A defendant was arrested and charged with robbery. While he was awaiting trial, an inmate in the jail in which he was housed was assaulted, and the police suspected that the defendant was involved. They brought the defendant in for questioning about the assault and provided him with Miranda warnings. The defendant said that he was willing to talk, and did not ask for his attorney. He proceeded to tell the police that he had provided another inmate with information about how to obtain a weapon and believed that inmate had been involved in the assault. The defendant was later charged as a co-conspirator in the assault, and sought to suppress his statement to the police. He argued that his attorney should have been present during the interrogation. Is the defendant's statement likely to be suppressed? Answers: No, because the defendant did not specifically invoke his Fifth Amendment right to counsel. No, because the defendant waived his Sixth Amendment right to counsel by failing to request his attorney. Yes, because the defendant did not waive his Fifth Amendment right to counsel. Yes, because the defendant did not provide a knowing, voluntary, and intelligent waiver of his Sixth Amendment right to counsel.

Answer choice A is correct. The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. In this case, the defendant did not request counsel, and thus did not invoke his Fifth Amendment right to counsel. The police's actions therefore did not violate the defendant's Fifth Amendment right to counsel. Additionally, as discussed further below, the Sixth Amendment right to counsel is case-specific, so the fact that the defendant already had an attorney for his robbery case is irrelevant to the interrogation about the assault. Answer choice B is incorrect because the defendant's Sixth Amendment right to counsel had not attached for purposes of the assault that was the subject of the interrogation. The Sixth Amendment right to counsel automatically attaches when the State initiates prosecution with an indictment or formal charge. Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. Under the Sixth Amendment standard, the requirement that counsel be present applies only to interrogations about the offense charged. In this case, the defendant's Sixth Amendment right to counsel had attached for purposes of the robbery, but not the assault. Answer choice C is incorrect because, under the Fifth Amendment, a defendant must specifically request counsel, and the defendant made no such request. Answer choice D is incorrect because the defendant's Sixth Amendment right to counsel had not attached for purposes of the assault that was the subject of the interrogation.

Question 431 A police officer suspected that an individual purchased child pornography in violation of the law. The officer sought and secured a facially valid warrant to search the home of the individual for items of child pornography. To obtain the warrant, the officer, in her affidavit, asserted as factual, information received from an informant. The officer executed the warrant and seized as evidence the items specified in the warrant. The prosecution seeks to introduce such evidence against the individual. The individual petitioned the court for a hearing to void the warrant and suppress the evidence seized pursuant to it. The court granted a hearing. At the hearing, the individual established by a preponderance of the evidence that information contained in the affidavit was false, that the officer negligently failed to verify the truthfulness of the information, and that the information was necessary to a finding of probable cause by the magistrate who issued the warrant. Should the court grant the individual's petition? Answers: No, because the warrant was facially valid. No, because the inclusion of the false information in the affidavit was due to the police officer's negligence. Yes, because the information was necessary to a finding of probable cause by the magistrate. Yes, because the police officer included false information in the affidavit.

Answer choice B is correct. A defendant may go beyond the face of a warrant and challenge its validity due to the inclusion of false information in the affidavit. However, the defendant must establish by a preponderance of the evidence that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit and that the information was necessary to a finding of probable cause by the magistrate. Answer choice A is incorrect because a search warrant that is facially valid will be held invalid under the circumstances discussed. Answer choice D is incorrect because it does not specify that the false statements must be made knowingly, intentionally, or with disregard for the truth. Answer choice C is incorrect for the same reason.

Question 7566 The defendant was charged with conspiracy to distribute drugs for his alleged involvement in a major drug trafficking ring. The evidence tying the defendant to the drug trafficking ring was obtained from a warrantless search of the home of a business partner. The defendant had been living with his business partner, but recently moved out, leaving a bag filled with cocaine and his identification in the business partner's home. The bag was discovered by police during a search of the home with the business partner's consent. Prior to trial, the defendant filed a motion to suppress the cocaine. How should the court rule on the defendant's motion to suppress? Answers: Deny the motion, because the business partner consented to the search of the home. Deny the motion, because the defendant does not have a privacy interest in the home. Grant the motion, because the defendant had a reasonable expectation of privacy in the home. Grant the motion, because the evidence was discovered as a result of a warrantless search.

Answer choice B is correct. A person has a Fourth Amendment right to be free from unreasonable searches and seizures. Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. It is not enough that the introduction as evidence of an item seized may incriminate the defendant. In this case, the defendant did not have a reasonable expectation of privacy in the business partner's home because he had recently moved out of the home. Therefore, the defendant's motion to suppress the cocaine should be denied. Answer choice A is incorrect. The fact that the business partner consented to the search of the home is not relevant to whether the cocaine should be admissible against the defendant. The defendant does not have a reasonable expectation of privacy in the home and therefore cannot suppress any evidence found during the search, even if the search had been illegal. Answer choice C is incorrect. Although the defendant did have a reasonable expectation of privacy while he was living in the home, the defendant had moved out prior to the search of the home by the police. Answer choice D is incorrect. Although the warrantless search of the business partner's home was constitutionally valid due to the business partner's consent (i.e., an exception to the warrant requirement), the defendant does not have standing to assert a Fourth Amendment violation, regardless of the legality of the search, because he does not have a reasonable expectation of privacy in the home.

Question 427 A police officer obtained a valid warrant to arrest a woman for misdemeanor theft. Having probable cause to believe that the woman was spending the afternoon at a friend's house, the officer went to the friend's house to serve the warrant. No one responded to the officer's knocking or to his identification of himself as a police officer. The officer, finding the door unlocked, opened the door and entered the house. Once in the house, the officer found the woman hiding in a bedroom closet. The woman was properly charged with misdemeanor theft. She sought dismissal of the case against her due the manner of her arrest. Should the court dismiss the charges against the woman? Answers: No, because the officer arrested the woman pursuant to a valid arrest warrant. No, because the woman was properly charged with misdemeanor theft. Yes, because the officer's arrest of the woman at her friend's house was illegal. Yes, because the officer could not arrest the woman for a misdemeanor unless the misdemeanor occurred in the officer's presence.

Answer choice B is correct. An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested. While evidence seized as a consequence of an illegal arrest may be suppressed under the fruit of the poisonous tree doctrine, and the charge may be thrown out if such evidence is necessary for conviction, that is not the case under these facts. Answer choice A is incorrect because, although the woman was arrested pursuant to a valid arrest warrant, the arrest was illegally effected because the officer arrested the woman at the home of her friend. Since the officer did not have a warrant to search for the woman at her friend's home, his arrest of the woman there was illegal. Answer choice C is incorrect because, although the arrest was illegal as noted in answer choice B, the illegal arrest does not prevent the prosecution of the woman for misdemeanor theft. Answer choice D is incorrect because, since the officer had an arrest warrant, he could arrest the woman for a misdemeanor that did not occur in his presence.

Question 6993 While sitting together at a bar, a friend confessed to the defendant that he had secretly dated the defendant's wife during college, at the same time that the defendant and his wife had also been dating. Enraged, the defendant punched the friend in the face, causing him to fall off the barstool and break his nose. A police officer across the bar heard the altercation and restrained the defendant to prevent any further harm to the friend. While physically restraining the defendant, the police officer asked the defendant why he broke the friend's nose. The defendant said he had done so because the friend had an affair with his wife. The defendant was subsequently arrested, informed of his Miranda rights, and charged with battery. At trial, is the defendant's statement to the officer admissible? Answers: No, because the defendant made the incriminating statement before he was read his Miranda rights. No, because the defendant responded to a custodial interrogation before he was read his Miranda rights. Yes, because the defendant voluntarily admitted that he had broken the man's nose to the police officer. Yes, because the defendant did not make the statement in response to a custodial interrogation.

Answer choice B is correct. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination. A person is in custody when he is not free to leave or is otherwise deprived of his freedom in any significant way. The test is whether a reasonable person, under the totality of the circumstances, would believe that he is not free to leave. An interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response. Here, the police officer obtained the defendant's incriminating statement while physically restraining him and asking why he broke the man's nose. The defendant was clearly not free to leave, and this express questioning was likely to elicit an incriminating response. For this reason, the defendant's incriminating statement is probably not admissible. Answer choice A is incorrect because not every incriminating statement made before the defendant is read his Miranda rights is inadmissible. The determining factor is whether the statement was made in response to custodial interrogation. Answer choice C is incorrect because this statement was not voluntary. The defendant's statements were elicited during a custodial interrogation. Answer choice D is incorrect because there is no requirement that the interrogation take place in a police station to be deemed custodial. As discussed above, the circumstances in this fact pattern constituted a custodial interrogation.

Question 4333 Two police officers responded to a call about a domestic disturbance. When they arrived at the home in question, they found a man and woman screaming at each other. One officer handcuffed the man and took him outside, while the other officer spoke with the woman inside the house. Without reading the man his Miranda rights, the officer asked the man to explain what happened. The man stated that the woman had tried to find the gun he had hidden in the bedroom closet. The officer retrieved the gun. The man, who was a convicted felon, was later charged with possession of a firearm as a felon. At trial, the man moved to suppress his statement about the gun and the gun itself, arguing that he did not receive Miranda warnings prior to being questioned by the officer. Is the defendant likely to succeed in having the evidence suppressed for Fifth Amendment reasons? Answers: No, as to both the statement and the gun. Yes, as to the statement only. Yes, as to the gun only. Yes, as to both the statement and the gun.

Answer choice B is correct. Any statement obtained as the result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights. However, the United States Supreme Court has ruled that derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings is admissible. In this case, the man's statement was obtained during a custodial interrogation, and the man was not provided with Miranda warnings. Thus, the man's statement about hiding a gun in the closet is inadmissible. Nevertheless, the gun that was found as a result of that statement is admissible despite being derivative physical evidence. Answer choice A is incorrect because the man's statement is likely to be suppressed because he was not provided with Miranda warnings. Answer choices C and D are incorrect because the gun itself is admissible, despite being derivative physical evidence of a tainted confession.

Question 6702 A defendant was charged with both battery and robbery of a victim. The defendant was found guilty of battery but acquitted of the robbery charge. Subsequently, the victim died from the injuries inflicted by the defendant. The defendant has been charged with felony murder of the victim. The defendant has moved for dismissal of this charge on double jeopardy grounds. How is the court likely to rule on this motion? Answers: Grant the motion, because the defendant was convicted of battery. Grant the motion, because the defendant was acquitted of robbery. Deny the motion, because the victim's death took place after the defendant's first trial. Deny the motion, because of the collateral estoppel doctrine.

Answer choice B is correct. Felony murder is an unlawful killing that occurs during the course of a felony. Battery is not generally one of the crimes on which felony murder can be based. Although robbery is typically a felony on which felony murder can be based, prosecuting the defendant for felony murder would require re-trying the robbery charge, which would violate the Fifth Amendment's Double Jeopardy Clause prohibition on multiple criminal prosecutions for the same offense. Answer choice A is incorrect. When jeopardy has attached with respect to a lesser-included offense prior to the occurrence of an event necessary to establish the greater offense, the defendant may be subsequently tried for the greater offense unless the defendant has been acquitted of the lesser offense. However, even though battery can be a lesser-included offense of other types of murder, battery is generally not a lesser-included offense of felony murder. Therefore, the battery conviction will not lead the court to grant the motion to dismiss. Answer choice C is incorrect. The defendant has been acquitted of the underlying offense on which the felony murder charge would be based. Consequently, the double jeopardy prohibition prevents the defendant's retrial on this offense, even though the events necessary to establish the greater offense took place after trial. Answer choice D is incorrect. In the context of the Fifth Amendment's Double Jeopardy Clause, the collateral estoppel doctrine operates to prevent the defendant's retrial on an issue that was necessarily determined in the defendant's favor at an earlier trial. It does not operate in the government's favor to prevent the defendant from relitigating the issue of whether he had harmed the victim. Therefore, it would not provide grounds to deny the motion to dismiss.

Question 7450 In a jury trial, an adult defendant was found guilty of first-degree premeditated murder, a capital offense. During the sentencing phase of the trial, the defense presented evidence of mitigating circumstances, while the prosecution presented evidence of aggravating circumstances. The jury rendered an advisory sentence of death without specifying the factual basis for its recommendation. The judge independently found the existence of two aggravating circumstances beyond a reasonable doubt, weighed the aggravating and mitigating circumstances, and, agreeing with the jury's advisory sentence, imposed the death sentence. On appeal, the defendant has challenged the imposition of the death sentence as unconstitutional. How should the appellate court rule? Answers: For the defendant, because the judge imposed the death sentence. For the defendant, because the jury did not find a specific aggravating circumstance that justified the impositon of the death penalty. Against the defendant, because jury and judge both concurred with imposing the death sentence. Against the defendant, because the judge found two aggravating circumstances beyond a reasonable doubt.

Answer choice B is correct. In order for a judge to impose the death sentence in a jury trial, the Sixth Amendment Right to a Jury Trial as made applicable to the states through the Due Process Clause of the Fourteenth Amendment requires that jury must find at least one aggravating circumstance beyond a reasonable doubt. Here, since the jury did not make such a finding, the imposition of the death sentence was unconstitutional. Answer choice A is incorrect because, even in a jury trial, a judge may impose the death sentence provided the jury finds a specific aggravating circumstance that justifies the imposition of the death penalty. Answer choice C is incorrect because, although the judge and jury concurred in the judge's imposition of the death sentence, the jury did not find a specific aggravating circumstance that justified the imposition of the death penalty. Moreover, the jury's death sentence was merely advisory, which the judge could reject, albeit only under very limited circumstances. Answer choice D is incorrect because this was a jury trial, so the jury was required to find an aggravating circumstance beyond a reasonable doubt.

Question 7742 A man was charged with first-degree murder. The prosecutor notified defense counsel that the State would seek the death penalty. Defense counsel filed a motion challenging the prosecution of his client on the ground that his client was not mentally competent to stand trial. After holding a hearing, the court concluded that the man was mentally competent to stand trial. The man was convicted of first-degree murder and properly sentenced to death. When a date was set for his execution, the man's lawyer filed a habeas corpus petition challenging the man's execution on the grounds that the man had an IQ of only 72. The court, applying a state statute that precludes a finding of intellectual disabilities for an individual with an IQ above 70, concluded that the man was mentally competent. Can the man be executed? Answers: No, because there was no finding that the man was insane or suffering from a severe mental disorder. No, because the statute created an unacceptable risk of execution for a person with intellectual disabilities. Yes, because the court concluded that the man was mentally competent to be executed. Yes, because the court concluded that the man was mentally competent to stand trial.

Answer choice B is correct. The Eighth Amendment prohibits execution of an individual with intellectual disabilities. In determining whether an individual has intellectual disabilities, a state cannot impose a strict cutoff that precludes a finding of intellectual disability if an individual has an IQ of more than 70 because this rule creates an unacceptable risk that a person with an intellectual disability will be executed. Answer choice A is incorrect. Although the Eighth Amendment prohibits the imposition of the death penalty on a prisoner who is insane or can "demonstrate a severe mental disorder," the Eighth Amendment also prohibits the execution of an individual with intellectual disabilities. Answer choice C is incorrect. Although the court determined that the man was mentally competent to be executed, the court made its determination by applying a state statute that created an unacceptable risk that a person with intellectual disabilities will be executed. Therefore, the finding does not prevent a challenge based on the Eighth Amendment's prohibition of the execution of an individual with intellectual disabilities. Answer choice D is incorrect because, although an individual has been found mentally competent to stand trial, that individual cannot be executed if he is not found mentally competent to be executed.

Question 365 A defendant was on trial for arson of an office building. During the trial, the police officers who initially arrested him began to suspect that the defendant was also responsible for a theft of several computers that took place in the office building on the same night as the arson. One evening during the arson trial, the police visited the defendant in jail, read him his Miranda rights, and began to question him about the theft. The defendant eventually confessed, and the police informed the prosecutor of his confession. The prosecutor later wants to charge the defendant with theft, using the statement that was obtained by the police in the jail. The defendant's attorney objects on the grounds that the defendant's Sixth Amendment rights were violated. The court should: Answers: Allow the prosecutor to use the confession because the defendant was read his Miranda rights. Allow the prosecutor to use the confession because theft and arson each require proof of an additional element that the other does not. Prevent the prosecutor from using the confession because the arson and the theft took place during the same criminal transaction. Prevent the prosecutor from using the confession because the defendant was represented by counsel in connection with the arson case.

Answer choice B is correct. The Sixth Amendment is offense-specific, meaning that the interrogation that is the subject of the Sixth Amendment inquiry must relate to the crime for which criminal proceedings have commenced. The Sixth Amendment right to counsel does not attach to other crimes for which the accused may be under investigation but which are unrelated to the pending prosecution. Under Blockburger v. United States, 284 U.S.299 (1932), two different crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not. Since arson and theft each require elements the other crime does not, they are not the same crime for Sixth Amendment purposes and the confession may therefore be used to charge the additional crime. Answer choice A is incorrect because, while a Miranda warning was necessary in order to elicit an admissible confession, Miranda warnings have no effect on a defendant's Sixth Amendment rights. Answer choice C is incorrect because, as discussed above, two different crimes in one criminal transaction are not the same for Sixth Amendment purposes if one requires proof of an element that the other does not. Answer choice D is incorrect because the Sixth Amendment right to counsel is offense-specific; it applies only to the offense at issue in those proceedings.

Question 6673 After an arson suspect was indicted and awaiting trial, the police found a potential eyewitness to the crime. Through an acquaintance, the suspect learned that the witness was being brought to the police station for a photo array. The suspect did not tell his attorney or object to the photo array. The eyewitness identified the suspect in the photo array, and the prosecution plans to use the identification at trial. Defense counsel objects, on the grounds that he should have been present during the identification. Did the post-indictment photo array violate the suspect's constitutional rights? Answers: No, because the suspect did not request that his attorney be present. No, because the photo array was not an in-person identification. Yes, it was a violation of the suspect's Fifth Amendment rights. Yes, it was a violation of the suspect's Sixth Amendment rights.

Answer choice B is correct. The Sixth Amendment protects an accused's right to "the assistance of counsel for his defense." The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment. However, the Sixth Amendment right to counsel generally does not apply to certain "noncritical stages," such as photo identifications. Because the defendant is not present at a photo identification, the Sixth Amendment does not guarantee counsel at such a noncritical stage. Answer choice A is incorrect because there is no need to invoke the right to counsel guaranteed by the Sixth Amendment. It automatically attaches upon an indictment or formal charge and applies at all critical stages of a prosecution. However, it does not apply to a photo identification, which is considered a noncritical stage. Answer choice C is incorrect because the Fifth Amendment right to counsel must be invoked and is only applicable to custodial interrogations. Answer choice D is incorrect because, as explained above, photo identifications are not considered critical stages to which the Sixth Amendment attaches, even if they are conducted post-indictment.

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

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

Question 6683 A police officer believed that a particular house was being used to conduct drug deals. He observed people coming and going at all hours, although he did not see any drugs change hands. One afternoon, the officer observed a person drop a small bag on the porch when he was leaving the house. The person picked it up, but the officer thought that perhaps some residue remained. The officer went to the police station, got a trained drug-detection dog, and went to the house. He went up onto the porch with the dog, and the dog alerted him to the presence of drugs. Based on the dog's reaction, a search warrant was issued for the house. A subsequent search led to the discovery of various kinds of drugs. The owner of the house was arrested and charged with drug possession and distribution. The owner moved to suppress the drugs found, claiming that the use of the trained drug-detection dog constituted an illegal search. Should the court grant the owner's motion to suppress? Answers: Yes, because the use of a trained dog to sniff for the presence of drugs is a per se constitutional violation. Yes, because the use of a trained dog to sniff for the presence of drugs on the porch of a house constitutes a search. No, because the officer had probable cause to conduct a search based on his observations of the house. No, because the use of a trained dog to sniff for the presence of drugs does not constitute a search.

Answer choice B is correct. The use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property, including the curtilage of a home. In this case, the officer took the dog onto the porch of the house. The officer did not have a warrant, and no exceptions to the warrant requirement applied to his conduct. Therefore, the officer's actions constituted an illegal search, and the drugs found as a result of that search should be suppressed. Answer choice A is incorrect because, in the absence of a physical intrusion onto constitutionally protected property, the use of a drug-sniffing dog does not violate a reasonable expectation of privacy. Answer choice C is incorrect. Even if the coming and going of potential customers was enough to establish probable cause, the officer would still have to get a warrant to conduct a search of the house, including the curtilage of that house, unless a warrant exception applied. Answer choice D is incorrect. In the absence of a physical intrusion onto constitutionally protected property, the use of a drug-sniffing dog does not violate a reasonable expectation of privacy. However, the use of a trained dog to sniff for the presence of drugs does constitute a search if, as in this case, it involves a physical intrusion onto constitutionally protected property.

Question 7458 Under the laws of a state, driving with a blood alcohol concentration (BAC) of more than 0.08% is per se illegal. In addition, a state statute provides that an individual who drives on the state's roads impliedly consents to a BAC test if the individual is arrested or otherwise suspected of a drunk-driving offense. The statute further provides that an individual who refuses to consent is not only subject to the loss of his driving privileges but also is guilty of a misdemeanor. An individual who had been arrested for a drunk-driving offense refused to consent to a blood test. Which of the following exceptions to the warrant requirement of the Fourth Amendment provides the best support for compelling the individual to undergo a warrantless blood test? Answers: Consent. Exigent circumstances. Search incident to arrest. Automobile exception.

Answer choice B is correct. While generally the Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, a warrantless search is permitted in exigent circumstances when they cannot reasonably do so without significantly undermining the efficacy of the search. Answer choice A is incorrect because, while a driver can impliedly consent to the loss of his license for refusing to take a test to determine his BAC, inferring a driver's consent in the face of a criminal penalty is unreasonable. Answer choice C is incorrect. A blood test is significantly more intrusive than a breath test and consequently requires a case-by-case analysis of the reasonableness of administering the test. Since a search incident to an arrest applies a categorical rule rather than a case-by-case approach to such searches, a blood test may not be administered as a search incident to an arrest for drunk driving. Answer choice D is incorrect because under the automobile exception, police do not have to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. Consequently, it is not applicable to the question of whether the driver of an automobile can be compelled to submit to a warrantless blood test.

Question 406 A man was charged with murder. An attorney was appointed due to the man's indigence. The man consulted with his attorney. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to elicit incriminating statements about the crime from the man. In response to the informant's prompting, the man confessed to killing the victim. At trial, the man testified that, while present at the scene of the murder, he did not participate in the killing. When the prosecution sought to call the informant as a witness to testify as to the man's prior contradictory confession, the defense attorney objected on the grounds that the confession had been obtained in violation of the defendant's constitutional rights. Should the court sustain this objection? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. No, because the confession was to be used for impeachment purposes. No, because the man, as an indigent, was provided with an attorney and was able to consult with his attorney prior to talking with the informant.

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

Question 430 An employee of a storage company informed police that the owner of the company was involved in a conspiracy to steal goods and then sell them. According to the employee, the owner permitted the storage of the stolen goods in his warehouse, typically only overnight, before the goods were transported elsewhere for resale. Acting on reliable information from the employee that the warehouse was due to receive a shipment of stolen goods that evening, a police officer immediately sought and obtained a warrant from a neutral and detached magistrate to search the warehouse upon the arrival of the stolen goods. The warrant failed to specify the condition that had to occur before the search was authorized by the warrant. Properly executing the warrant, the police seized the stolen goods. The warehouse owner was charged with conspiracy to commit larceny and possession of stolen goods. The owner sought to suppress the evidence of the stolen goods on the grounds that the seizure was unconstitutional. Should the court suppress this evidence? Answers: Yes, because an anticipatory warrant is per se unconstitutional. Yes because the failure to state the triggering condition in the warrant caused the warrant to fail for lack of particularity. No, because the warrant satisfied the probable cause requirement of the Fourth Amendment. No, because a warrant is not needed to search business premises such as a warehouse.

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

Question 398 A man committed a rape. Although the victim reported the crime immediately and the police promptly gathered DNA evidence as to the perpetrator of the crime, the police were unable to determine that the man was the perpetrator until 10 years after the event. At that time, the man's conviction for a different crime resulted in the taking of a sample of his DNA and the subsequent match of his DNA with the DNA of the perpetrator of the rape. Shortly thereafter, the man was charged by the state with rape, and due to his indigence, provided with a court-appointed public defender. Attributable solely to this attorney, the trial was delayed for over a year, despite the defendant's protests that he be tried immediately. Eventually, the court replaced the public defender with another attorney. That attorney filed a motion to dismiss the rape charge on the basis that the man's constitutional right to a speedy trial was violated. The state does not have a statute of limitations in which a rape charge must be brought. Should the court grant the motion? Answers: Yes, because there was a delay of over ten years in bringing charges against the defendant. Yes, because, since the defendant's trial was delayed due to a court-appointed public defender, such delay is attributable to the state rather than the defendant. No, because the state was not responsible for the delay in trying the defendant. No, because the right to a speedy trial does not apply where there is no statute of limitations.

Answer choice C is correct. Delay in proceeding to trial attributable to the defendant's attorney is not allocated to the state simply because the attorney was provided by the state to the defendant. Instead, as with delay attributable to a defendant-supplied attorney, delay attributable to a public defendant is generally treated as caused by the defendant rather than the state. Consequently, since none of the post-arrest delay is attributable to the state, the defendant's right to a speedy trial was not violated. Answer choice A is incorrect because the time begins to run with respect to the right to a speedy trial only once the defendant is arrested or charges are brought against the defendant. Answer choice B is incorrect because, as noted with respect to answer choice C, the court appointment of the defendant's attorney does not mean that delay in proceeding to trial which is attributable to that attorney is allocated to the state, rather than the defendant. Answer choice D is incorrect. A statute of limitations dictates when charges must be brought in relationship to the commission of the crime. As noted with regard to answer choice C, the right to a speedy trial is not triggered until the defendant is charged or arrested. Moreover, the absence of a statute generally does not determine whether a constitutional right exists.

Question 1960 A defendant was tried for armed robbery. The state introduced evidence that a man, identified by witnesses as the defendant, entered a convenience store at 11 p.m. on March 5, threatened the clerk with a gun, and took $75 from the cash register. The defendant did not testify, but his sister did. She testified that on March 5, at the time of the robbery, the defendant was with her in a city 300 miles away. On cross-examination, the sister admitted having given a statement to the police in which she had said that the defendant was not with her on March 5, but she claimed that the earlier statement was mistaken. The court instructed the jury that in order to convict the defendant, they had to find all of the elements of the crime beyond a reasonable doubt. As to the defendant's claim of alibi, which of the following additional instructions would be proper? Answers: Alibi is a matter of defense and so must be established by the defendant; however, the burden of persuasion is by a preponderance of the evidence, not beyond a reasonable doubt. Before you may consider the defendant's claim of alibi, you must decide whether he has produced sufficient evidence to raise the issue. If you have a reasonable doubt as to whether the defendant was present at the convenience store at about 11 p.m. on March 5, you must find him not guilty. If the defendant's evidence has caused you to have a reasonable doubt as to whether he was the robber, you must find him not guilty.

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

Question 1996 A defendant was charged with attempted murder. At the preliminary hearing, the presiding judge heard the testimony of four prosecution witnesses and found that the prosecution had failed to establish probable cause that the defendant had committed any offense. Accordingly, he dismissed the charge. The prosecutor then called the same four witnesses before a grand jury. The grand jury indicted the same defendant for attempted murder. The defendant has moved to quash the indictment on the ground of double jeopardy. How should the court proceed? Answers: Grant the motion, because the dismissal of the first charge on the merits, whether correct or incorrect, bars any further prosecution. Grant the motion, unless the prosecution has evidence that was not presented in the first case. Deny the motion, because the defendant has not yet been in jeopardy of conviction on the attempted murder charge. Deny the motion, because the protection of the double jeopardy clause does not come into play until there has been a conviction or an acquittal.

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

Question 413 A mechanic and his former employee were indicted for automobile theft. Unbeknownst to the mechanic, the former employee confessed to the crime and implicated his employer. In exchange for favorable treatment by the prosecutor, the former employee agreed to cooperate in the prosecution of the mechanic. The police were also investigating the mechanic for an alleged plan to kill another person who was to serve as a witness for the state at the mechanic's trial. The mechanic sought a meeting with the former employee. Upon learning of the proposed meeting, the police wired the former employee in order to record the conversation between the mechanic and the former employee. The police directed the former employee to encourage the mechanic to talk about his criminal activity. At the meeting the mechanic made incriminating statements about stealing automobiles. The mechanic's lawyer filed a pretrial motion to suppress these statements on the grounds that his client's right to counsel was violated. Should the court grant this motion? Answers: No, because the statements were obtained by police during an investigation of a possible crime, a plan to murder a witness, for which the right to counsel had not attached. No, because the mechanic initiated the meeting with his former employee. Yes, because the police knowingly used the former employee to elicit incriminating statements from the mechanic about the charged crime. Yes, because the police used a secret agent to obtain the incriminating statements.

Answer choice C is correct. Since the right to counsel attaches upon the initiation of formal proceedings against the accused, such as indictment, the police cannot seek to elicit incriminating statements from the accused about the crime without the presence of the accused's lawyer unless the accused waives his right to counsel. Seeking such information through a private person who acts as an agent of the police is also prohibited. Answer choice A is incorrect because the fact that the police were also investigating the accused in regard to an uncharged crime for which the right to counsel had not attached does not excuse or justify the police action in seeking to elicit incriminating statements about the charged crime. Answer choice B is incorrect because, even though the accused initiated contact with an unknown police informant, the accused does not waive his right to counsel simply by initiating such contact since the accused is not aware that the informant is acting on behalf of the police. Answer choice D is incorrect because the police are not prohibited from obtaining incriminating statements from the accused through the use of a secret agent so long as the agent does not actively solicit incriminating information from the accused.

Question 6987 A defendant owned a gun shop. Due to the recent local surge in gun-related crimes, there was an urgent, valid public interest to ensure that the gun shops were only selling guns to individuals with valid gun permits. In response to this public interest, the police department decided to visit all gun shops in the area to ensure they were following proper gun-sale procedures. Pursuant to this plan, but without a valid search warrant, the police entered defendant's gun shop during regular business hours and demanded to view his gun-sales logs in order to confirm that he sold guns only to individuals with valid gun permits. The police discovered that the defendant had sold numerous guns to individuals without valid gun permits, and arrested and charged the defendant for the illegal sale of guns. The defendant has moved to suppress evidence of the gun-sales logs. Should the court grant the defendant's motion? Answers: Yes, because the police engaged in an invalid warrantless search. Yes, because the police lacked probable cause to search the defendant's sales logs. No, because this search was valid without a warrant. No, because this invalid administrative search does not require suppression of the evidence.

Answer choice C is correct. The state may conduct warrantless searches of businesses in highly regulated industries due to an urgent public interest. Here, gun shops are a highly regulated industry, and the police had a reasonable plan supported by an urgent public interest to reduce the recent surge in gun violence. Therefore, this search was valid without a warrant. Answer choice A is incorrect because the search of a highly regulated industry due to an urgent public interest does not require a warrant to be valid. This is due to the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry. Answer choice B is incorrect. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant for an administrative search, but neither the warrant nor probable cause is required for a search of a highly regulated industry due to an urgent public interest. Answer choice D is incorrect because this was not an invalid administrative search.

Question 404 Two alleged participants in a drug conspiracy sought to employ the same attorney to represent them. The prosecution objected on the ground of conflict of interest. Both alleged participants agreed to waive the right to assert conflict of interest claims. At a hearing on the matter, the court, while determining that no actual, present conflict existed, found that there was a serious potential of a future conflict and ordered the defendants to secure separate counsel. Each defendant obtained other counsel and each was subsequently convicted of conspiracy. On appeal, each challenged his conviction on the basis that he was denied his Sixth Amendment rights. Should the appellate court rule in favor of the defendants? Answers: Yes, because no actual, present conflict existed at the time of the hearing. Yes, because both defendants agreed to waive future conflict of interest claims. No, because each defendant was represented by counsel at trial. No, because the Sixth Amendment right to representation by an attorney of the defendant's choosing is not absolute.

Answer choice D is correct. A criminal defendant's right to be represented by an attorney of his own choosing is subject to limitations, including the Sixth Amendment's guarantee of an effective advocate for a criminal defendant. Answer choice A is incorrect because, although a court must disqualify an attorney from representing co-defendants where there is an actual, present conflict, a court may also disqualify an attorney where there is a serious potential for a conflict of interest. Answer choice B is incorrect because, although a criminal defendant may be permitted to waive a potential conflict of interest, the court is not required to accept such a waiver. Answer choice C is incorrect. The Sixth Amendment, subject to exceptions, protects not only the right to an attorney, but also the right to an attorney of one's choosing.

Question 405 A man was charged with murder. He consulted with the attorney who was appointed to represent him. Subsequently, while the man was imprisoned awaiting trial, the police placed an informant into the man's cell with instructions to simply "keep his ears open" for incriminating statements made by the man. Without prompting by the informant, the man confessed to committing the murder. As part of the discovery process, the prosecution listed the informant as a witness the prosecution intended to call in its case-in-chief. The defense attorney made a motion in limine to suppress the informant's testimony regarding the defendant's confession on the grounds that it was obtained in violation of the defendant's constitutional rights. Should the court grant this motion? Answers: Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination. Yes, because the confession was obtained in violation of the defendant's Sixth Amendment right to counsel. Yes, because the confession was obtained in violation of the defendant's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. No, because the confession was not obtained in violation of the defendant's Fifth Amendment right against self-incrimination or Sixth Amendment right to counsel.

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

Question 7453 A defendant elected not to testify at his state-court trial for first-degree murder, a capital offense. The prosecutor, in her closing argument before the jury, accurately noted that the evidence presented at trial established that the defendant and victim were seen together shortly before the victim was murdered. The prosecutor then commented that, because the victim was dead and could not testify, the defendant was the only person with knowledge of what happened and he had chosen not to reveal that knowledge. Does the prosecutor's comment constitute a violation of the defendant's constitutional rights? Answers: No, because the prosecutor's comment is truthful. No, because the prosecutor's comment does not compel the defendant to testify. Yes, because the defendant is being tried for a capital offense. Yes, because the prosecutor has commented on the defendant's exercise of his privilege against self-incrimination.

Answer choice D is correct. A prosecutor may not comment on the defendant's exercise at trial of his privilege against self-incrimination. Such a comment constitutes an impermissible shifting of the burden of proof onto the defendant, due to his exercise of this privilege. Answer choice A is incorrect because, even though the prosecutor's comment is truthful, it nevertheless is constitutionally impermissible. Answer choice B is incorrect because, while the prosecutor's comment does not directly compel the defendant to testify, it does penalize the defendant for exercising this privilege by encouraging the jury to draw a negative inference from the defendant's silence. Answer choice C is incorrect because the prohibition on a prosecutor's commenting on the defendant's exercise of his privilege against self-incrimination is not limited to capital offenses, but applies to any criminal trial.

Question 4231 A defendant was visiting his girlfriend's home. Before leaving, he hid a knife in the kitchen cabinet without her knowledge. Later that day, the police arrived at the girlfriend's house to question her about a recent stabbing in which the defendant was a suspect. The police believed the girlfriend was withholding information and threatened to arrest her for obstruction of justice if she did not allow them to search her home. The girlfriend consented, and the police discovered the knife in the kitchen. The knife was later identified as the weapon used in the stabbing, and the defendant was charged and tried for the crime. The defendant moved to suppress the knife, and the prosecution objected. Is the knife likely to be admitted against the defendant at trial? Answers: No, because the girlfriend's consent to the search was not valid against the defendant. No, because the girlfriend did not provide voluntary consent for the search. Yes, because the girlfriend consented to the search. Yes, because the search did not violate the defendant's reasonable expectation of privacy.

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

Question 6669 Responding to a 911 call reporting an apparent drug deal, a uniformed police officer parked on the street in front of the defendant's home. As the officer got out of her car, the defendant and his wife were standing on the front porch of their home. The officer overheard the defendant say to his wife, "Go inside and hide the stash. They can't follow you without a warrant." The officer detained the defendant and his wife, preventing them from entering their house until backup arrived. At the defendant's subsequent trial for drug possession, is his statement constitutionally admissible? Answers: No, as a violation of the Fourth Amendment. No, as a violation of the Fifth Amendment. Yes, under an exception to the warrant requirement. Yes, because use of the statement does not violate the defendant's constitutional rights.

Answer choice D is correct. The Fifth Amendment protects against compelled self-incrimination. Here, the defendant voluntarily made the statement to his wife. The Fourth Amendment protects against unreasonable searches and seizures. Although a conversation may be protected from seizure by the police under the Fourth Amendment, the defendant cannot assert a reasonable expectation of privacy in a statement that can be heard by a police officer standing in the street in front of the defendant's home. Accordingly, the statement can be introduced without violating the defendant's constitutional rights. Answer choice A is incorrect because the Fourth Amendment protects against unreasonable searches and seizures. Although a conversation may be protected from seizure by the police under the Fourth Amendment, the defendant cannot assert a reasonable expectation of privacy in a statement that can be heard by a police officer standing in the street in front of the defendant's home. Answer choice B is incorrect. The Fifth Amendment protects against compulsory self-incrimination. It does not protect against statements that were made voluntarily and outside of police custody. Accordingly, introduction of the statement would not violate the Fifth Amendment. Answer choice C is incorrect because there was no warrantless search in this case that would have required an applicable exception to be valid. The officer simply approached the house and heard a voluntary statement. In any event, none of the exceptions to the Fourth Amendment warrant requirement is applicable here.

Question 6670 While on patrol one night, two officers noticed the car of a known drug dealer in the drive-through lane of a fast-food restaurant. Based on prior discussions with informants, the officers had probable cause to believe that the drug dealer regularly made drug deliveries from his car. Noticing that the drug dealer's headlight was out, the officers pulled him over once he left the restaurant and searched his car. The officers did not find any evidence of drugs, but they did find several illegal weapons in the trunk. Did the officers' seizure of the weapons violate the drug dealer's Fourth Amendment rights? Answers: Yes, because the stop was pretextual in nature. Yes, because the officers were searching for drugs, not weapons. Yes, because the drug dealer could not access the trunk from the passenger compartment. No, as a valid application of the automobile exception to the warrant requirement.

Answer choice D is correct. The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of criminal activity. They can even search the trunk if they have reasonable cause to believe that it contains contraband. In this case, the facts state that the officers did have probable cause to believe that there were drugs stored in the car. Accordingly, stopping and searching the car—even the trunk—did not violate the drug dealer's Fourth Amendment rights. Answer choice A is incorrect. Police may use a pretextual stop to investigate whether a law has been broken, provided they have probable cause to believe that the law for which the vehicle was stopped has been violated. Here, the officers observed a headlight was out on the drug dealer's car. Accordingly, they had the right to stop the car for that infraction. Although the police did not have probable cause to search the trunk of the car based on such a stop, the police independently had probable cause to believe that the drug dealer stored drugs in the car, and therefore they could search the car, including its trunk. Answer choice B is incorrect because the fact that the officers found weapons instead of drugs does not mean that the drug dealer's rights were violated. The officers still had probable cause to believe that he stored drugs in the car. This probable cause permitted the officers to search the drug dealer's car, including its trunk. Answer choice C is incorrect because the automobile exception to the warrant requirement has no limitation that the drug dealer be able to reach the compartment being searched in order for the search to be valid; that limitation is present only when there is an automobile search incident to an arrest. In this case, the officers had probable cause to believe that they would find contraband in the car, including its trunk.

uestion 6706 Police in a rural community obtained an anonymous tip that a resident of the community was producing opium from poppies grown in flower beds immediately behind his house. Since police could not access or view the beds without trespassing on the resident's property, the police contacted a local crop duster who used a helicopter in his business. At the police's behest, the crop duster took an officer and flew his helicopter over the residence at a height of 500 feet, confirming that illegal poppies were growing in the flower beds behind the house. Based on the crop duster's affidavit, the police obtained a warrant to search the area directly behind the house and seized the illegal plants. If the resident moves to suppress this evidence as a violation of his Fourth Amendment rights, how is the court likely to rule? Answers: Grant the motion, because the poppy plants were located within the curtilage of the residence. Grant the motion, because an anonymous tip cannot form the basis for probable cause to obtain a warrant. Deny the motion, because the warrant was based on a private citizen's affidavit. Deny the motion, because the inspection did not violate a reasonable expectation of privacy.

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

Question 364 A corporation is being investigated for tax fraud and for several other offenses regarding insider trading. The prosecutor requested that the corporation turn over several types of corporate records, including emails from several of the corporation's officers and other business papers. The request was made of the corporation's Chief Operating Officer (COO), who acted as the custodian of the corporate records. The business papers would implicate several members of the corporation, including the COO, in criminal misconduct. Further, many of the emails written by the COO contained statements about the officers of some of the corporation's competitors; these statements were defamatory and would likely result in civil liability if they were released. The COO objects to producing this evidence, arguing that being forced to turn over these corporate records would violate his Fifth Amendment privilege against self-incrimination. The court should: Answers: Grant his motion as to the emails, but deny his motion as to the business papers. Deny his motion as to the emails, but grant his motion as to the business papers. Grant his motion as to both the emails and the business papers. Deny his motion as to both the emails and the business papers.

Answer choice D is correct. The court should deny the motion as to both types of documents for several reasons. First, the Fifth Amendment privilege against self-incrimination applies only to individuals, not to corporations. The privilege does not extend to the custodian of corporate records, even if the records would incriminate the custodian personally. Additionally, the privilege applies only to testimonial evidence, not to voluntarily prepared business papers. As such, the business papers are not protected by the privilege. Further, the Fifth Amendment privilege extends only to evidence that might incriminate the defendant in future criminal proceedings, not civil. For that and the above reasons, the emails are not covered by the privilege. Since answer choices A, B, and C state that the privilege should apply to one or both of the types of evidence, they are incorrect.