OK 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 trunk after officers extended the stop 20 minutes waiting for the K-9 unit with no reasonable suspicion of drug activity. Under Rodriguez v. United States, the evidence found in the trunk is:
- Inadmissible, because prolonging a traffic stop beyond its mission without reasonable suspicion violates the Fourth Amendment (Correct answer)
- Admissible, because a dog sniff is not a search
- Admissible, because the initial stop was lawful
- Inadmissible, because dog sniffs always require a warrant
Correct answer: Inadmissible, because prolonging a traffic 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 suspect's reference to counsel was ambiguous and did not require police to stop questioning (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 written waiver
Correct answer: Admissible, because the suspect's reference to counsel was ambiguous and did not require police to stop questioning
Davis requires an unambiguous invocation of the right to counsel before police must cease interrogation.
Question 3: Officers with a valid warrant to arrest Dan at his home enter and, while there, look inside a small desk drawer in another room and find drugs. The drugs are:
- Inadmissible, because a protective sweep and search incident to arrest do not extend to small containers in other rooms (Correct answer)
- Admissible under the plain view doctrine
- Admissible as a search incident to a lawful arrest
- Admissible because the arrest warrant authorized a full house search
Correct answer: Inadmissible, because a protective sweep and search incident to arrest do not extend to small containers in other rooms
Search incident to arrest is limited to the arrestee's wingspan, and a protective sweep covers only spaces where a person could hide.
Question 4: In Oklahoma, a defendant charged with a felony has the right to a preliminary hearing. What is the primary purpose of that hearing?
- To determine whether probable cause exists that a crime was committed and the defendant committed it (Correct answer)
- To determine the defendant's guilt beyond a reasonable doubt
- To set the final sentence
- To select the trial jury
Correct answer: To determine whether probable cause exists that a crime was committed and the defendant committed it
An Oklahoma preliminary hearing screens felony charges by testing for probable cause before the defendant is bound over for trial.
Question 5: A grand jury subpoenas a target to testify. The target refuses, citing the Fifth Amendment. The prosecutor grants use and derivative use immunity. The target must now:
- Testify, because use and derivative use immunity is coextensive with the Fifth Amendment privilege (Correct answer)
- Still refuse, because only transactional immunity overcomes the privilege
- Testify only about non-incriminating matters
- Refuse until counsel is present in the grand jury room
Correct answer: Testify, because use and derivative use immunity is coextensive with the Fifth Amendment privilege
Kastigar v. United States holds that use and derivative use immunity is sufficient to compel testimony over a Fifth Amendment claim.
Question 6: Defendant's first trial ends when the judge declares a mistrial over defense objection because a key prosecution witness is ill. Retrial is:
- Permitted, because a mistrial based on manifest necessity does not bar retrial under double jeopardy (Correct answer)
- Barred, because jeopardy attached when the jury was sworn
- Barred, because the defense objected to the mistrial
- Permitted only if the defendant consents in writing
Correct answer: Permitted, because a mistrial based on manifest necessity does not bar retrial under double jeopardy
When a mistrial is declared out of manifest necessity, double jeopardy does not bar reprosecution even over defense objection.
Question 7: Police obtain a confession in violation of Miranda but without actual coercion. At trial, the defendant testifies inconsistently with the confession. The prosecution may:
- Use the confession to impeach the defendant's testimony, though not in its case-in-chief (Correct answer)
- Not use the confession for any purpose
- Use the confession in its case-in-chief
- Use the confession only if the defendant opens the door in opening statements
Correct answer: Use the confession to impeach the defendant's testimony, though not in its case-in-chief
Voluntary statements taken in violation of Miranda are admissible for impeachment under Harris v. New York.
OK Bar Criminal Procedure 2
Police stop a driver for a broken taillight and, during the stop, a drug dog alerts on the trunk after officers extended the stop 20 minutes waiting for the K-9 unit with no reasonable suspicion of drug activity.
Under Rodriguez v.
United States, the evidence found in the trunk is: