CO Bar Criminal Procedure 3 — Questions and Answers
Question 1: Police attach a GPS tracker to a suspect's car without a warrant and monitor it for 28 days. Under United States v. Jones, this is:
- A Fourth Amendment search, because the physical trespass to obtain information triggers constitutional protection (Correct answer)
- Not a search, because movements on public roads are exposed to the public
- A search only if the car entered private property
- Not a search, because the intrusion was minimal
Correct answer: A Fourth Amendment search, because the physical trespass to obtain information triggers constitutional protection
Jones held that physically installing a GPS device on a vehicle to gather information is a Fourth Amendment search under the trespass theory.
Question 2: A defendant is indicted for robbery and retains counsel. Police then place an informant in his cell who deliberately elicits incriminating statements about the robbery. The statements are:
- Inadmissible, because deliberate elicitation after indictment violates the Sixth Amendment right to counsel (Correct answer)
- Admissible, because there was no custodial interrogation by police
- Admissible, because informants are not state actors
- Inadmissible only if the informant asked direct questions
Correct answer: Inadmissible, because deliberate elicitation after indictment violates the Sixth Amendment right to counsel
Under Massiah, the Sixth Amendment bars government agents from deliberately eliciting statements about charged offenses outside counsel's presence.
Question 3: In Colorado, the speedy trial statute generally requires trial to commence within what period after a not guilty plea, absent waiver or excludable delay?
- Six months (Correct answer)
- Sixty days
- One year
- Ninety days
Correct answer: Six months
Colorado's speedy trial statute, section 18-1-405, requires trial within six months of a not guilty plea unless time is waived or excluded.
Question 4: During a valid traffic stop, an officer orders the driver out of the car without any particularized suspicion. Under Pennsylvania v. Mimms, this order is:
- Lawful, because officer safety justifies ordering a lawfully stopped driver out of the vehicle (Correct answer)
- Unlawful, absent reasonable suspicion the driver is armed
- Lawful only at night or in high-crime areas
- Unlawful, because it converts the stop into an arrest
Correct answer: Lawful, because officer safety justifies ordering a lawfully stopped driver out of the vehicle
Mimms permits ordering the driver out of a lawfully stopped vehicle as a de minimis intrusion justified by officer safety.
Question 5: A defendant pleads guilty after his lawyer wrongly assures him the plea carries no deportation risk, and deportation was clearly mandated by statute. Under Padilla v. Kentucky, the defendant:
- May claim ineffective assistance, because counsel must correctly advise on clear deportation consequences (Correct answer)
- Has no claim, because deportation is a collateral consequence
- Has no claim, because the judge accepted the plea
- May claim ineffective assistance only if he is actually deported
Correct answer: May claim ineffective assistance, because counsel must correctly advise on clear deportation consequences
Padilla holds that failing to advise about clear deportation consequences of a plea is deficient performance under Strickland.
Question 6: Officers execute a valid warrant to search a house for a stolen rifle. They open a small jewelry box and find drugs. The drugs are:
- Inadmissible, because a rifle could not fit in the jewelry box, so the search exceeded the warrant's scope (Correct answer)
- Admissible under the plain view doctrine
- Admissible, because the warrant authorized searching all containers
- Inadmissible, unless the officers acted in good faith
Correct answer: Inadmissible, because a rifle could not fit in the jewelry box, so the search exceeded the warrant's scope
A warrant search is limited to places where the named item could plausibly be found, and a rifle cannot fit in a jewelry box.
Question 7: At a lineup held after formal charges are filed, the defendant's lawyer is not present, and the witness identifies him. Under Wade and Gilbert, the courtroom identification by that witness is:
- Admissible only if the prosecution shows an independent source untainted by the uncounseled lineup (Correct answer)
- Automatically admissible, because in-court identifications are always allowed
- Automatically excluded along with the lineup identification
- Admissible if the lineup was not suggestive
Correct answer: Admissible only if the prosecution shows an independent source untainted by the uncounseled lineup
While the uncounseled post-charge lineup identification is per se excluded, an in-court identification survives if it has an independent source.
CO Bar Criminal Procedure 3
Police attach a GPS tracker to a suspect's car without a warrant and monitor it for 28 days.
Under United States v.
Jones, this is: