CO Bar Criminal Procedure 2 — Questions and Answers
Question 1: Police stop a driver for a broken taillight and, during the stop, a drug dog alerts on the car after officers extended the stop 20 minutes solely to wait for the dog. Under Rodriguez v. United States, the evidence found is:
- Inadmissible, because prolonging a stop beyond its mission without reasonable suspicion violates the Fourth Amendment (Correct answer)
- Admissible, because dog sniffs are not searches
- Admissible, because the initial stop was lawful
- Inadmissible only if the delay exceeded 30 minutes
Correct answer: Inadmissible, because prolonging a stop beyond its mission without reasonable suspicion violates the Fourth Amendment
Rodriguez holds that extending a traffic stop beyond the time needed to complete its mission requires independent reasonable suspicion.
Question 2: A suspect in custody says, 'Maybe I should talk to a lawyer.' Police continue questioning and obtain a confession. Under Davis v. United States, the confession is:
- Admissible, because the reference to counsel was ambiguous and did not require police to stop (Correct answer)
- Inadmissible, because any mention of a lawyer ends interrogation
- Inadmissible, because police must clarify ambiguous requests
- Admissible only if the suspect later signed a waiver
Correct answer: Admissible, because the reference to counsel was ambiguous and did not require police to stop
Davis requires an unambiguous request for counsel before police must cease interrogation.
Question 3: In Colorado, a defendant charged by information with a felony is entitled to a preliminary hearing primarily to determine:
- Whether probable cause exists to believe the defendant committed the charged offense (Correct answer)
- Whether the defendant is guilty beyond a reasonable doubt
- Whether the evidence was lawfully obtained
- Whether venue is proper
Correct answer: Whether probable cause exists to believe the defendant committed the charged offense
A Colorado preliminary hearing screens felony charges for probable cause, not guilt or suppression issues.
Question 4: Officers arrest a man in his living room under a valid arrest warrant and, incident to arrest, search a closed dresser drawer in an upstairs bedroom. The search of the drawer is:
- Invalid, because a search incident to arrest is limited to the arrestee's wingspan and immediate area (Correct answer)
- Valid, because an arrest warrant authorizes a full house search
- Valid, as a protective sweep
- Invalid, unless the arrest was for a violent felony
Correct answer: Invalid, because a search incident to arrest is limited to the arrestee's wingspan and immediate area
Chimel limits searches incident to arrest to the area within the arrestee's immediate control.
Question 5: A defendant's first trial ends in a hung jury and the judge declares a mistrial over defense objection. Retrial is:
- Permitted, because a hung jury is manifest necessity and double jeopardy does not bar retrial (Correct answer)
- Barred by double jeopardy because jeopardy attached when the jury was sworn
- Permitted only if the prosecution adds new charges
- Barred unless the defendant consents
Correct answer: Permitted, because a hung jury is manifest necessity and double jeopardy does not bar retrial
A genuinely deadlocked jury is the classic example of manifest necessity permitting retrial.
Question 6: Police obtain a confession after an un-Mirandized custodial interrogation, then Mirandize the suspect and have him repeat it minutes later as part of a deliberate two-step strategy. Under Missouri v. Seibert, the second confession is:
- Inadmissible, because midstream warnings in a deliberate two-step interrogation are ineffective (Correct answer)
- Admissible, because it followed valid warnings
- Admissible under the public safety exception
- Inadmissible only if physical coercion was used
Correct answer: Inadmissible, because midstream warnings in a deliberate two-step interrogation are ineffective
Seibert bars the question-first, warn-later tactic because the delayed warnings cannot effectively convey the right to remain silent.
Question 7: A grand jury witness in Colorado refuses to answer, claiming the Fifth Amendment. The prosecution grants use and derivative use immunity. The witness must now testify because:
- Use and derivative use immunity is coextensive with the privilege against self-incrimination (Correct answer)
- Grand jury witnesses have no Fifth Amendment rights
- Only transactional immunity is constitutionally required
- The privilege applies only at trial
Correct answer: Use and derivative use immunity is coextensive with the privilege against self-incrimination
Kastigar holds that use and derivative use immunity supplants the privilege because the testimony cannot be used against the witness.
CO Bar Criminal Procedure 2
Police stop a driver for a broken taillight and, during the stop, a drug dog alerts on the car after officers extended the stop 20 minutes solely to wait for the dog.
Under Rodriguez v.
United States, the evidence found is: