Criminal Procedure

Question 1

May law enforcement randomly stop vehicles on public roadways?

Answer 1

No. Police may generally not stop an automobile, even for a driving-related matter, without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards.

Question 2

May a checkpoint be used to search for individuals?

Answer 2

A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as:

(i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment.

Question 3

How is the privilege against self-incrimination invoked?

Answer 3

By defendant: Privilege invoked by refusing to take the stand.

By non-defendant witnesses: May be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness.

Question 4

How is “custody” defined for purposes of Miranda?

Answer 4

Custody is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances.

Question 5

At what critical stages is there a Sixth Amendment right to counsel?

Answer 5

Generally, there is a Sixth Amendment right to counsel at the following critical stages:
1. Post-indictment lineups and in-person identifications
2. Post-indictment interrogations, whether custodial or otherwise
3. Arraignment and preliminary hearings to determine probable cause to prosecute, bail hearings, and pre-trial motions
4. Plea bargaining, guilty pleas, trials, and sentencing

Note: The right does not apply to post-conviction proceedings, but direct appeals as a matter of right do require that the state provide counsel to the indigent on equal protection grounds.

Question 6

What is the test to determine whether a person has been “seized” for the purposes of the Fourth Amendment?

Answer 6

A seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave.

Note: The police officer must intentionally employ physical force or a show of authority in order for the officer’s actions to result in a seizure, but the officer need not intend to detain the defendant.

Question 7

What four warnings are required by Miranda before custodial interrogation begins?

Answer 7

Law-enforcement officials must inform suspects:

(i) Of their right to remain silent;

(ii) That any statement uttered may be used in court;

(iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and

(iv) That an attorney will be appointed to represent indigent defendants.

Question 8

When are the fruits of a non-Mirandized confession admissible?

Answer 8

Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.

Question 9

What is the effect of the plain view doctrine on items (1) in public view, and (2) in private view?

Answer 9

(1) Items may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.

(2) Police may seize the item as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item.

Question 10

How is a prima facie case for absence of a representative cross-section in a jury established?

Answer 10

By showing that:

(i) The group allegedly excluded is a “distinctive” group in the community;

(ii) The group was not fairly represented in the venire from which the jury was chosen; and

(iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process.

Question 11

What is required for a defendant to have standing to challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures?

Answer 11

(i) The defendant himself has been seized; or

(ii) He has a reasonable expectation of privacy with regard to the place searched or the item seized.

Note: It is not enough that the introduction as evidence of an item seized may incriminate the defendant or that the evidence was seized from a co-conspirator.

Question 12

How is the right to counsel invoked under the Fifth Amendment, and what is the effect of invoking this right?

Answer 12

A suspect must make a specific, unambiguous statement asserting his desire to have counsel present. Once that right to counsel is invoked, all interrogation must stop until counsel is present.

Note: If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right.

Question 13

Do prison inmates have a reasonable expectation of privacy in their cells?

Answer 13

Prison inmates have no reasonable expectation of privacy in their cells. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline.

Note: Unlike a convicted inmate, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee’s cell may be subject to a routine search, and the detainee’s person may be subject to a strip search or a full-body search after a contact visit with someone from the outside.

Question 14

What are the seven types of exceptions to the search warrant requirement?

Answer 14

(1) Searches incident to a lawful arrest

(2) Exigent circumstances

(3) Stop and frisk (i.e., Terry stops)

(4) Automobiles

(5) The “plain view” doctrine

(6) Consent searches

(7) Administrative, special needs, and inventory searches

Question 15

What is curtilage and why is it important?

Answer 15

In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection. In determining whether the area is protected, the following four-factor test applies:

(i) The proximity of the area to the home;

(ii) Whether the area is included within an enclosure surrounding the home;

(iii) The nature of the uses to which the area is put; and

(iv) The steps taken by the resident to protect the area from observation by passersby.

Question 16

What is a fly-over, and does it constitute a search for Fourth Amendment purposes?

Answer 16

A fly-over is an inspection conducted from at least 400 feet in the air by an airplane or a helicopter. It does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment.

Question 17

What is the privilege against self-incrimination, and to what evidence and proceedings does it apply?

Answer 17

No person shall be compelled in a criminal case to testify against himself. It protects only testimonial evidence, and applies in any proceeding if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings.

Question 18

When does a defendant have a right to a jury trial?

Answer 18

In the federal system, the Sixth Amendment provides the right to jury trials.

In states, the Fourteenth Amendment provides jury trials in criminal cases involving non-petty offenses (i.e., those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed).

Question 19

What is the court required to find in order to accept a criminal defendant’s guilty plea?

Answer 19

The judge must determine that the plea is both intelligent and voluntary.

Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement.

Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.

Question 20

What are the seven exceptions to the exclusionary rule?

Answer 20

(1) Inevitable discovery rule - the evidence would have been inevitably discovered in the same condition through lawful means

(2) Independent source doctrine - the evidence was discovered in part by an independent source unrelated to the tainted evidence.

(3) Attenuation principle - the chain of causation between the primary taint and the evidence has been so attenuated, by time and/or intervening events, as to “purge” the taint.

(4) Good-faith exception - police officers acted in good faith on either a facially valid warrant or an existing law later declared unconstitutional.

(5) Isolated police negligence - the police conduct was not sufficiently deliberate such that the exclusionary rule could deter it.

(6) Knock and Announce - the search was a violation of the “knock and announce” rule.

(7) In-court Identification - the evidence is a witness’s in-court identification of the defendant.

Question 21

Does a motel or hotel patron have an expectation of privacy in the rented room?

Answer 21

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. The patron enjoys a reasonable expectation of privacy for the duration of the rental agreement.

Note: A motel clerk’s consent to a governmental search of a room during the time it is rented is insufficient to justify the search.

Question 22

What are the requirements of a valid search warrant?

Answer 22

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.

Question 23

What is meant by “open fields” for Fourth Amendment considerations?

Answer 23

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search.

Note: The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and “no trespassing” signs are posted.

Question 24

Are searches conducted by private citizens prohibited by the Fourth Amendment?

Answer 24

No, the Fourth Amendment applies to government action, not searches made by private citizens.

The police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Question 25

What is the generally permitted scope of a warrantless search made incident to a lawful arrest?

Answer 25

A lawful arrest justifies a warrantless contemporaneous search of the person arrested and his “wingspan” (i.e., the immediately surrounding area from which a weapon may be concealed or evidence destroyed).

Question 26

When and how may statements obtained in violation of Miranda be used at trial?

Answer 26

Voluntary and trustworthy statements may be used as impeachment evidence.

Question 27

What is a "protective sweep," and when is it permitted?

Answer 27

A “protective sweep” is a quick and limited visual inspection of places immediately adjacent to the place of an arrest in which a person might be hiding. It is permitted as a search incident to a lawful arrest that occurs in a home, even without probable cause or reasonable suspicion.

Question 28

When is a defendant unable to suppress evidence seized in a search of the defendant's property pursuant to a third party's consent?

Answer 28

The defendant can generally suppress evidence seized during such a search unless: (i) An agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant; or (ii) The defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched.

Question 29

When may police stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law?

Answer 29

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.

Question 30

Name the five situations where the good-faith exception to the exclusionary rule does not apply.

Answer 30

If: (i) No reasonable officer would rely on the affidavit underlying the warrant; (ii) The warrant is defective on its face; (iii) The warrant was obtained by fraud; (iv) The magistrate has “wholly abandoned his judicial role”; or (v) The warrant was improperly executed.

Question 31

What is a "stop," and when is it justified?

Answer 31

A stop (i.e., Terry stop) is limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. A stop is justified on the reasonable suspicion, based upon articulable facts and the totality of the circumstances, that the detainees are or were involved in illegal activity.

Question 32

What is the "knock and announce" rule?

Answer 32

When executing either a search or an arrest warrant, a police officer must generally announce his purpose before entering. Note: Violation of the "knock and announce" rule does not trigger the exclusionary rule.

Question 33

When does the Sixth Amendment right to counsel apply to eyewitness identifications?

Answer 33

A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. The right to counsel does not apply to any pre-indictment lineup or to non-corporeal identifications (e.g., photo arrays).

Question 34

What are the five rights guaranteed by the Sixth Amendment?

Answer 34

(1) The right to a public trial; (2) The right to confront witnesses against him, (3) The right to cross-examine witnesses; (4) The right to be present at his own trial, and (5) The right to the assistance of counsel for his defense.

Question 35

When is a warrantless search of a vehicle permitted as a search incident to a lawful arrest?

Answer 35

When law enforcement demonstrate either that: (i) The arrestee is within reaching distance of the passenger compartment and may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee; or (ii) That it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Question 36

When does "hot pursuit" constitute an exigent circumstance that excuses the search warrant requirement?

Answer 36

When the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him. If the police have probable cause to believe that the suspect has committed a misdemeanor, then the police may act without waiting for a warrant if the totality of the circumstances shows an emergency.

Question 37

What is an "interrogation" as defined for Miranda purposes?

Answer 37

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Question 38

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a nontrial proceeding?

Answer 38

The denial is subject to harmless-error analysis on appeal.

Question 39

What is required to arrest an individual in the individual's home?

Answer 39

The police must have a warrant to arrest an individual in the individual's own home, absent exigent circumstances or valid consent to enter the arrestee’s home. A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have reason to believe that the arrestee is present.

Question 40

When/where are police officers permitted to make warrantless arrests?

Answer 40

(i) In public places; (ii) For crimes occurring in the arresting party’s presence; or (iii) If the officer has probable cause to believe the arrested party has committed a felony. Note: An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged.

Question 41

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a pleading stage, and the defendant pleaded guilty?

Answer 41

The defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission.

Question 42

Does an overnight guest have an expectation of privacy in the home?

Answer 42

An overnight guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter.

Question 43

How can the Sixth Amendment right to counsel be waived?

Answer 43

The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent.

Question 44

(1) What is the two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification procedure? (2) What five factors must be considered in that determination?

Answer 44

(1) The defendant must demonstrate that (i) the procedure was impermissibly suggestive and (ii) there was a substantial likelihood of misidentification. (2) The court must consider: (i) The witness’s opportunity to view the defendant at the time of the crime; (ii) The witness’s degree of attention at the time of the crime; (iii) The accuracy of the witness’s description of the defendant prior to the identification; (iv) The level of certainty at the time of the identification; and (v) The length of time between the crime and the identification.

Question 45

What is the good-faith exception to the exclusionary rule?

Answer 45

The exclusionary rule does not apply to police officers who act in good faith on either (i) a facially valid warrant later determined to be invalid or (ii) an existing law later declared unconstitutional.

Question 46

What are three exceptions to the Miranda requirements?

Answer 46

(1) Public safety; (2) Routine booking questions; and (3) Undercover police.

Question 47

When are presumptions constitutionally permitted in criminal trials, and when are they unconstitutional?

Answer 47

A permissive presumption regarding an element of an offense does not violate due process unless the presumption is irrational (i.e., it is more likely than not to flow from the proven fact on which it depends). A mandatory presumption regarding an element of an offense violates the due-process requirement.

Question 48

What is the exclusionary rule?

Answer 48

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt (unless an exception applies).

Question 49

What is the proper remedy if a right to counsel at a trial proceeding under the Sixth Amendment is denied and the defendant is convicted?

Answer 49

The defendant’s conviction should be automatically reversed, even without a specific showing of unfairness. Note: Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state.

Question 50

What are (1) transactional immunity, and (2) use and derivative use immunity?

Answer 50

(1) "Transactional" (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony. (2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. Note: “Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes.

Question 51

What are the three requirements for a statutory scheme imposing a death penalty to be constitutional?

Answer 51

The statutory scheme must provide: (i) Clear and objective standards; (ii) Specific and detailed guidance; and (iii) An opportunity for rational review of the process.

Question 52

What are the requirements of a valid arrest warrant?

Answer 52

It must be issued by a detached/neutral magistrate upon finding of probable cause and describe with particularity the defendant and the crime.

Question 53

What must a claimant show to reverse a conviction based on ineffective assistance of counsel?

Answer 53

(i) Counsel’s representation fell below an objective standard of reasonableness; and (ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

Question 54

How many jurors are required under the Constitution, and how many jurors must be in agreement to render a verdict?

Answer 54

A jury of fewer than six members is a denial of due process. A unanimous verdict is constitutionally required of both federal and state juries, regardless of the of the number of jurors. Note: The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury in federal criminal trials, unless waived in writing and approved by the court. A verdict by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations begin.

Question 55

What constitutes an unreasonable search for the purposes of the Fourth Amendment?

Answer 55

An unreasonable search occurs when the government: (1) invades a place protected by a reasonable expectation of privacy, or (2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information.

Question 56

What is the plain-error doctrine?

Answer 56

A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when: (i) The district court committed error under the law in effect at the time the appeal is heard; (ii) The error is obvious under that law; and (iii) The error affected the defendant’s substantial rights.

Question 57

When searching jointly controlled property subject to consent, what is the difference between when a defendant is not present and when the defendant is present?

Answer 57

If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes. When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time.

Question 58

What is an "inventory search?"

Answer 58

Inventory searches are administrative-type searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner’s property while in custody, to protect police from claims of theft, and to protect officers from danger. Note: Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant.

Question 59

What must a defendant show in order to attack the truthfulness of an affidavit supporting a facially valid search warrant?

Answer 59

The defendant must establish, by a preponderance of the evidence, that: (i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and (ii) The false statements were necessary to the finding of probable cause.

Question 60

What is the three-prong test to determine whether a peremptory challenge has been exercised based on race in violation of the Equal Protection Clause of the Fourteenth Amendment (i.e., Batson test)?

Answer 60

The test requires that: (i) The moving party establishes a prima facie case of discrimination; (ii) The party who exercised the challenge provides a race-neutral explanation for the strike; (iii) The moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination. Note: The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.

Question 61

State the Blockburger test.

Answer 61

Two crimes committed in one criminal transaction are deemed to be the same offense for Fifth (double jeopardy) and Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Question 62

How is the right to remain silent invoked under the Fifth Amendment, and what is the effect of invoking this right?

Answer 62

The defendant must make a specific, unambiguous statement asserting his desire to remain silent. If a defendant does so, the interrogator(s) must “scrupulously honor” that request. Note: Merely remaining silent in response to police questioning does not invoke the privilege. However, post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant’s right to due process.

Question 63

When is a search of an automobile permitted as an exception to the search warrant requirement?

Answer 63

When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers. Note: Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.

Question 64

Do parents have authority to consent to searches of their child's room?

Answer 64

When a child lives with a parent, the parent has the authority to consent to a search of a child’s room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child’s room, depending on the age of the child.

Question 65

What are the three protections provided by the Fifth Amendment Double Jeopardy Clause?

Answer 65

(i) Protection against a second prosecution for the same offense after acquittal; (ii) Protection against a second prosecution for the same offense after conviction; and (iii) Protection against multiple punishments for the same offense. Does not apply when a mistrial is declared at the defendant's request, with the defendant's consent, or due to manifest necessity (e.g., a hung jury). Also does not preclude a criminal punishment and civil penalty for the same conduct, nor does it apply to administrative proceedings-- e.g., a disciplinary hearing stemming from criminal conduct.

Question 66

When does a private individual not qualify as working on the government's behalf / acting as an instrument or agent of the government for the purposes of the Fourth Amendment?

Answer 66

When a private individual is acting on their own behalf without the government's knowledge or participation.

Question 67

What types of information can supply probable cause to support a search warrant?

Answer 67

Probable cause to support a search warrant can come from information supplied by (1) a reliable, known informant or (2) an unknown informant if the information is independently verified.

Question 68

Do police have to re-Mirandize a suspect after an interrogation is stopped for a long duration?

Answer 68

Yes, even if they originally waived their Miranda rights.

Question 69

Must a prosecutor present exculpatory evidence to a grand jury considering whether to indict a person?

Answer 69

No.

Question 70

If there was deliberate racial discrimination in the selection of grand jury jurors, what should happen to the indictment on appeal if a defendant raises an equal protection challenge?

Answer 70

If deliberate discrimination is found, the conviction must be automatically reversed on appeal.

Question 71

In what scenarios can the death penalty be imposed upon an accomplice who committed felony murder?

Answer 71

An accomplice to felony murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to the death unless the accomplice (1) significantly participated in the commission of the underlying felony and (2) acted with reckless indifference to human life.

Question 72

Does a trained dog sniff constitute a search?

Answer 72

Yes, if it involves physical intrusion onto constitutionally protected property (For example, walking a drug-sniffing dog past a car or closed luggage is not a violation of a person’s reasonable expectations of privacy, but bringing a drug-sniffing dog onto someone's curtilage would be).

Question 73

Is there a constitutional right for witnesses to have counsel inside the grand jury room?

Answer 73

No, even if the witness is the target of the grand jury investigation. However, a grand jury witness may consult with the attorney outside the grand jury room.

Question 74

Does a Miranda violation automatically require the suppression of the defendant's later confession made after the receipt of Miranda warnings?

Answer 74

No-- admissibility turns on whether the later confession was voluntary based on the totality of the circumstances.

Question 75

Do motel managers/employees have the actual or apparent authority to consent to an officer's warrantless entry of a guest's room?

Answer 75

No.

Question 76

Are Miranda warnings required when a suspect who is subjected to a custodial interrogation is not aware that the interrogator is a police officer (i.e., when the officer is undercover?)

Answer 76

No.

Question 77

What is the special government purpose exception to the warrant requirement?

Answer 77

Under the exception, customs officials may conduct border searches and search international packages without a warrant or probable cause.

Question 78

What is required for a defendant to waive their Sixth Amendment right to counsel?

Answer 78

A defendant can only waive their Sixth Amendment right to counsel and engage in self-representation if the trial court confirms on the record that the defendant (1) knows the nature of the charges, range of punishment, and disadvantages of self-representation and (2) is not being forced to choose between incompetent counsel and self-representation.

Question 79

Are Fifth Amendment privileges limited to US citizens?

Answer 79

No.

Question 80

Does an illegal arrest prevent the subsequent prosecution of the arrestee?

Answer 80

No, so long as they are properly charged.

Question 81

What is an anticipatory search warrant, and when is the probable cause requirement met?

Answer 81

A warrant that becomes effective only upon the occurrence of a triggering condition; the probable cause requirement is met if: at the time of the issuance, there is probable cause to believe that the triggering condition will occur AND if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched.

Question 82

When executing a warrant, what is required for police to lawfully search a person who is on the premises but not named in the warrant?

Answer 82

Independent justification, which may come from 1) reasonable suspicion that the person is armed, which allows officers to pat down the person's outer garments OR 2) probable cause to believe that the person committed, is committing, or is about to commit a crime.

Question 83

When is a fact considered an element of a crime, rather than a sentencing enhancement?

Answer 83

A fact is considered an element of a crime, as opposed to a sentencing enhancement, when it can increase the maximum sentence imposed.

Question 84

If facts-- other than prior convictions-- can be used to increase a sentence beyond a statutorily prescribed maximum, what safeguards must be satisfied?

Answer 84

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be charged in an indictment, submitted to a jury, and established beyond a reasonable doubt. The failure to abide by the above procedure is a violation of the defendant’s due-process rights under the Fifth Amendment and Sixth Amendment rights to notice and a jury trial, both of which are incorporated against the states through the Fourteenth Amendment.

Question 85

What is the difference between a conclusive presumption and a rebuttable mandatory presumption?

Answer 85

Both are examples of mandatory presumptions. A conclusive presumption is one that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case), while a rebuttable mandatory presumption shifts the burden of proof regarding the element of the offense.

Question 86

Does imprisonment alone create a custodial situation within the meaning of Miranda?

Answer 86

The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically “custodial” for Miranda purposes. A standard, objective “totality of circumstances” analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

Question 87

Does asking a person to step out of a vehicle during a traffic stop render them in custody for Miranda purposes?

Answer 87

No. Furthermore, the driver and passenger can be ordered out of the vehicle while the officer addresses the matter justifying the stop since this additional intrusion is minimal and helps ensure officer safety (even if they're merely writing a speeding ticket).

Question 88

Does squeezing a bag constitute a search?

Answer 88

Yes.

Question 89

If the police have no reasonable suspicion that a car contains drugs, does a dog sniff that prolongs an otherwise valid traffic stop beyond the time reasonably needed to complete the stop constitute an unreasonable search?

Answer 89

Yes.