UT Bar Criminal Procedure 2 — Questions and Answers
Question 1: Police stop a driver for a broken taillight and, while writing the citation, a K-9 unit arrives and conducts a dog sniff that prolongs the stop by ten minutes. Absent reasonable suspicion of drug activity, the sniff is:
- Constitutional, because a dog sniff is not a search under the Fourth Amendment
- Constitutional, because ten minutes is a de minimis intrusion
- Unconstitutional, because extending a traffic stop to conduct a dog sniff requires independent reasonable suspicion (Correct answer)
- Unconstitutional, because dog sniffs always require a warrant
Correct answer: Unconstitutional, because extending a traffic stop to conduct a dog sniff requires independent reasonable suspicion
Under Rodriguez v. United States, police may not prolong a traffic stop beyond the time needed for its mission to conduct a dog sniff without 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 ambiguous statement was not an unequivocal invocation of the right to counsel (Correct answer)
- Inadmissible, because any mention of a lawyer requires questioning to cease
- Inadmissible, because police must clarify ambiguous requests before continuing
- Admissible only if the suspect later signed a written waiver
Correct answer: Admissible, because the suspect's ambiguous statement was not an unequivocal invocation of the right to counsel
Davis holds that questioning need not stop unless the suspect unambiguously requests counsel, and 'maybe I should talk to a lawyer' is ambiguous.
Question 3: Officers execute a valid warrant to search a house for a stolen 60-inch television. During the search, an officer opens a small jewelry box and finds cocaine. The cocaine is:
- Admissible under the plain view doctrine
- Admissible, because a valid warrant authorizes search of the entire premises
- Inadmissible, because drugs were not named in the warrant
- Inadmissible, because a 60-inch television could not fit inside a jewelry box, so the search exceeded the warrant's scope (Correct answer)
Correct answer: Inadmissible, because a 60-inch television could not fit inside a jewelry box, so the search exceeded the warrant's scope
A warrant search is limited to places where the named item could reasonably be found, and a large television cannot fit in a jewelry box.
Question 4: A defendant is arrested and detained without a warrant. Under County of Riverside v. McLaughlin, a judicial probable cause determination is presumptively prompt if provided within:
- 24 hours of arrest
- 48 hours of arrest (Correct answer)
- 72 hours of arrest
- One week of arrest
Correct answer: 48 hours of arrest
McLaughlin held that a probable cause determination within 48 hours of a warrantless arrest is presumptively reasonable under Gerstein v. Pugh.
Question 5: During plea negotiations, defense counsel fails to inform the defendant of a favorable plea offer, which then expires; the defendant is later convicted at trial and receives a harsher sentence. Under Missouri v. Frye, the defendant:
- Has no claim, because there is no constitutional right to a plea bargain
- Has no claim, because the trial itself was fair
- May claim ineffective assistance of counsel, because counsel must communicate formal plea offers to the defendant (Correct answer)
- May claim ineffective assistance only if the prosecutor re-extends the offer
Correct answer: May claim ineffective assistance of counsel, because counsel must communicate formal plea offers to the defendant
Frye held that defense counsel's failure to communicate a formal, favorable plea offer can constitute deficient performance under Strickland.
Question 6: Police obtain a confession in violation of Miranda but without actual coercion. At trial, the defendant testifies inconsistently with the confession. The prosecution may:
- Not use the confession for any purpose
- Use the confession in its case-in-chief because the defendant testified
- Use the confession only if the defendant opens the door on direct examination
- Use the confession to impeach the defendant's testimony, though not in its case-in-chief (Correct answer)
Correct answer: Use the confession to impeach the defendant's testimony, though not in its case-in-chief
Under Harris v. New York, voluntary statements taken in violation of Miranda are admissible to impeach a testifying defendant.
Question 7: A grand jury indicts a defendant based partly on evidence obtained through an illegal search. The defendant moves to dismiss the indictment. The motion will:
- Fail, because the exclusionary rule does not apply to grand jury proceedings (Correct answer)
- Succeed, because indictments cannot rest on illegally obtained evidence
- Succeed, if the illegal evidence was the sole basis for the indictment
- Fail, only if the prosecutor acted in good faith
Correct answer: Fail, because the exclusionary rule does not apply to grand jury proceedings
United States v. Calandra held that the exclusionary rule does not apply in grand jury proceedings.
UT Bar Criminal Procedure 2
Police stop a driver for a broken taillight and, while writing the citation, a K-9 unit arrives and conducts a dog sniff that prolongs the stop by ten minutes.
Absent reasonable suspicion of drug activity, the sniff is: