MBE Questions Flashcards
By federal statute, it is unlawful to knowingly possess any endangered species of fish or wildlife. Any person who violates this statute is guilty of a misdemeanor and is subject to a fine of not more than $50,000 or imprisonment of not more than six months, or both. Congress indicated that the statute should be applied as broadly as possible to accord the endangered species maximum protection.
Which of the following is likely the minimum that the prosecution must establish in order to obtain a conviction of a defendant found in possession of an endangered bird?
A) The defendant knew that the bird in her possession was a member of an endangered species.
B) The defendant knew that there was a federal statute that made possession of the bird a crime.
C) The defendant knowingly possessed the bird.
D) The defendant possessed the bird.
C) The defendant knowingly possessed the bird.
Most criminal offenses have a requisite mens rea, but courts may need to look at the statute’s legislative intent to appropriately apply this requirement.
AND the prosecution must prove that the defendant, at a minimum, possessed the requisite mens rea to obtain a conviction.
A convenience store clerk was complaining about his financial troubles to his best friend. The friend said that the clerk’s employer had been cheating the clerk out of a decent salary for too many years, and that the employer owed the clerk. The friend suggested that if the clerk robbed the store during another clerk’s shift, he would never get caught. The friend offered to loan the clerk his gun to use to scare the clerk on duty. Both men agreed that no one would get hurt in the process. The next day, the clerk carried out the plan to rob the store while the friend waited outside in a car. During the robbery, the clerk accidentally discharged the gun, and a customer was shot and died instantly. The clerk panicked and left the store empty-handed. The friend drove the clerk back to his mother’s house, told him to lay low, and then drove home. The clerk later decided that he needed to get out of town quickly. He stole his mother’s car, which was more reliable than his own, to drive to a nearby state.
In a case against the friend, which of the following charges would most likely be successfully prosecuted?
A) Attempted robbery, murder, and larceny.
B) Felony murder.
C) Attempted robbery only.
D) Attempted robbery and murder only.
B) Felony murder.
An accomplice is liable for
(1) the crime for which he/she provided encouragement or assistance and
(2) other crimes committed by the principal that were a natural and probable consequence of the accomplice’s conduct.
The friend, as an accomplice, is liable for crimes committed by the clerk that were a natural and probable consequence of the encouraged robbery, which includes felony murder. Therefore, the friend could be successfully prosecuted for felony murder—but not attempted robbery since it would merge into felony murder
A mother with a terminal illness told her son that she was in a great deal of pain. She requested that he end her suffering by taking her life. After unsuccessfully attempting to dissuade his mother, the son, who had no medical training, researched the matter on the Internet. Acting in compliance with his mother’s request, the son injected his mother with drugs that resulted in her quick and painless death. He did not financially benefit from his mother’s death in any way, as she had properly devised all of her property to a charity.
Of the following crimes listed in descending order of seriousness, which is the most serious crime of which the son may be convicted?
A) Murder.
B) Voluntary manslaughter.
C) Involuntary manslaughter.
D) Assisted suicide.
A) Murder
Common law murder is the unlawful killing of another with malice aforethought, which can be established by showing that the defendant acted with the intent to kill. Consent is never a defense to this crime.
A carpenter was using a nail gun in the construction of a small outdoor deck on a house. The carpenter knew that the nail gun could fire a nail with sufficient force to kill a human being at close range. Aware of the presence of three other carpenters on the other side of the nearly finished deck, one of whom the carpenter disliked, the carpenter fired the nail gun twice at a table located between himself and the other three carpenters. The first nail from the gun struck the table but the second nail, ricocheting off the table, struck and killed the disliked carpenter. At trial, a jury, based on this evidence, found the carpenter guilty of murder.
If the carpenter appeals his conviction on the ground that the evidence was not sufficient to support his conviction, how should the appellate court rule?
A) Affirm the conviction, because the evidence is sufficient to establish that the carpenter acted with criminal negligence.
B) Affirm the conviction, because the evidence is sufficient to establish that the carpenter acted with malice aforethought.
C) Overturn the conviction and remand for a new trial, because the evidence is not sufficient for murder but can support an involuntary manslaughter conviction.
D) Overturn the conviction and remand for a new trial, because the evidence is not sufficient for murder but can support a voluntary manslaughter conviction.
B) Affirm the conviction, because the evidence is sufficient to establish that the carpenter acted with malice aforethought.
Common-law murder is the unlawful killing of another with malice aforethought. This include depraved-heart murder.
Here, the evidence is sufficient to establish that the carpenter committed depraved-heart murder when he fired a nail gun in the direction of the other carpenters who were standing close by. That is because he knew that the nail gun could generate enough force to kill a human being, thereby disregarding an obvious risk of causing death or serious bodily injury when he fired it.
The defendant, his brother, and his best friend formed a plan to rob a bank. On the day of the crime, the defendant and his brother entered the bank carrying guns, while the best friend stayed in the car to act as a getaway driver. After the defendant received one bag of money from a bank teller, he saw a security guard pull out a gun. The defendant tried to shoot the security guard but instead shot his brother. The defendant panicked and ran out of the building toward the getaway car. The security guard chased the defendant and fired a shot toward him as he approached the car. The shot hit the best friend, who was in the driver’s seat of the car. Shortly thereafter, the police arrived and arrested the defendant. The brother and the best friend later died as a result of their gunshot wounds.
For which of the following crimes is the defendant most likely to be convicted and punished?
A) Robbery and two counts of felony murder for the death of the brother and the best friend.
B) Robbery and one count of felony murder for the death of the brother.
C) Two counts of felony murder for the death of the brother and the best friend.
D) One count of felony murder for the death of the brother.
D) One count of felony murder for the death of the brother.
In most jurisdictions, the underlying felony (here, robbery) merges into felony murder. This means that a defendant convicted of felony murder cannot also be convicted of the underlying felony.
After a woman and her roommate got into a fight, the woman and her boyfriend formulated a plan to get back at the roommate. The woman planned to distract the roommate while the boyfriend would sneak into the apartment through the open back door to steal her new camera, which was on the kitchen counter. The woman and her boyfriend headed back to the apartment and put their plan into action. However, the plan went awry when the roommate heard a noise and went into the kitchen to find the boyfriend with her camera in hand. Panicked, the boyfriend pushed the roommate to the floor and ran out of the apartment with the camera.
The boyfriend is most likely to be convicted of which of the following crimes?
A) Burglary only.
B) Burglary and battery.
C) Robbery only.
D) Robbery and battery.
C) Robbery only
Robbery is larceny from the victim’s person or presence by force (battery) or intimidation (assault).
Merger: Robbery + Battery
Since larceny and battery/assault are lesser included offenses to robbery, they merge into the completed robbery. Therefore, the defendant may only be convicted of robbery—not its constituent offenses.
A woman broke into her former lover’s house at night with the intent to take back various items of her clothing that the former lover had refused to return to her. After conducting a search and being unable to find the clothing, she came across another woman’s clothing. Extremely angry, she took a cigarette lighter and lit the lover’s bed on fire, destroying the bed.
With which of the following crimes can the woman be properly charged?
A) Arson.
B) Burglary.
C) Both arson and burglary.
D) Neither arson nor burglary.
D) Neither arson nor burglary
Common-law arson = requires fire damage to the actual building structure—not just the contents of the dwelling.
Here, the woman burned only the former lover’s bed—not a part of the actual structure of the building—so she cannot be properly charged with arson
Common-law burglary = the requisite intent must exist at the time of entry.
Here the woman broke and entered the house of her former lover at night to recovery her own clothing—not to commit a felony therein.
A) An attorney represented a client in a legal battle over a valuable necklace that had belonged to the client’s deceased grandmother. The attorney told the client, who had possession of the necklace, that the client was legally required to leave the necklace with the attorney until the legal issues were resolved. In fact, there was no such requirement. Rather, the attorney intended to sell the necklace and retire on a small island where the attorney believed she would never be found. After the client gave the necklace to the attorney, the attorney sold it to a jeweler. The jeweler, who had known the grandmother, later recognized the necklace as the grandmother’s and called the police. The attorney was arrested at the airport later that day.
The attorney is guilty of which of the following crimes?
A) Embezzlement.
B) False pretenses.
C) Larceny by trick.
D) Robbery.
C) Larceny by trick
Larceny by trick is a larceny accomplished by fraud or deceit that results in the conversion of the property of another. Larceny by trick differs from false pretenses in that the defendant acquires mere possession of (not title to) the property.
A woman broke into her ex-husband’s house late one night when she knew he was away on business, intending to take a sculpture that he had been awarded in their divorce settlement. She searched the entire house but was unable to find the sculpture. She figured he had probably sold the sculpture, which made her furious because he knew how much she loved it. In a rage, she slashed a painting of his new girlfriend before leaving the house.
Of which of the following crimes is the woman guilty?
A) Attempted larceny only.
B) Larceny only.
C) Burglary only.
D) Burglary and attempted larceny.
D) Burglary and attempted larceny.
Common law burglary = complete when the defendant unlawfully breaks and enters a dwelling at night with the intent to commit a felony therein.
+ Commission of the underlying felony is unnecessary.
+ BUT a burglary defendant who fails to complete the underlying felony is also guilty of the attempted commission of that felony
Here, the woman is guilty of burglary because she broke into her ex-husband’s home at night with the specific intent to commit larceny. Although the woman did not complete the larceny because she did not actually steal the sculpture, she is still guilty of attempted larceny
A woman searched on the Internet for a hit man who would kill her husband in exchange for cash. She found a purported mercenary in a chat room who agreed to kill the husband in return for $50,000. The mercenary turned out to be an undercover police officer, and the woman was arrested.
With which of the following common law crimes could the woman properly be charged?
A) Conspiracy only.
B) Solicitation only.
C) Both conspiracy and solicitation.
D) Neither conspiracy nor solicitation.
B) Solicitation only.
CL Conspiracy = requires proof of at least two guilty minds, so a defendant cannot be convicted of conspiracy if the other alleged conspirator(s) feigned agreement.
Solicitation = complete upon the encouragement of the crime—it does not matter if the other person agrees to or can commit the solicited crime.
A daughter was homeschooled by her bohemian parents for most of her life. The parents did not believe in mainstream medicine, so they taught the daughter about homeopathic remedies as part of her homeschooling. She helped her parents with their extensive garden as part of her daily chores. Unfortunately, the daughter was lonely, she did not believe in homeopathy, and she wanted to eat meat, so she resolved to kill her parents by poisoning them but making it look like an accident.
Among the plants the daughter was growing was the castor oil plant, which her parents used to treat a variety of skin conditions and to stimulate the immune system. However, the seeds of the castor oil plant contain the toxin called ricin, which is deadly if ingested by humans. The daughter extracted the seeds from a castor oil plant, crushed them, and then added the ricin powder to her parents’ oatmeal. Unbeknownst to the daughter, she had actually picked the wrong plant, known as the “false castor oil plant,” which was similar in appearance but did not produce poisonous seeds. After the parents ate the oatmeal laced with the harmless seeds, they suffered some gastric distress. They went to the garden to find an herbal remedy, and noticing that all of the false castor oil plants were missing, they suspected that someone untrained in plant species had tried to poison them, so they called the police. The police were able to piece together what actually happened, and they arrested the daughter for attempted murder.
Could the daughter be found guilty of attempted murder?
A) No, because factual impossibility is a defense to the crime of attempted murder.
B) No, because it was legally impossible for the daughter to kill her parents.
C) Yes, because mistake of fact is not a defense to the crime of attempted murder.
D) Yes, because factual impossibility is not a defense to the crime of attempted murder.
D) Yes, because factual impossibility is not a defense to the crime of attempted murder.
Attempt occurs when a person
(1) takes a substantial step toward the commission of a crime
(2) with the specific intent to commit the crime.
Factual impossibility is never a defense to attempt.
Three coworkers were employed at a jewelry store. They were always complaining to one another about the long hours, the paltry pay rate, and the lack of medical benefits. Two of the coworkers came up with a plan to steal a valuable collection of gems from the jewelry store, but it was a three-person job; they asked the third coworker to join in on their plan, but he refused. The two coworkers knew how devoted the third coworker was to his family, so they threatened to kill his wife and kids if he did not help them or if he tried to foil their plan by notifying the police. Believing that he had no other choice, the third coworker joined in on the plan.
The three men entered the jewelry store that night, having received the permission of their boss in order to polish all of the jewelry in preparation for a jewelry show the next day. While the two coworkers broke into the wall safe where the gems were kept, the third coworker kept watch for the night guard on his hourly walk-through of the store premises. The night guard decided to do his walk-through 10 minutes early, saw the men breaking into the safe, and pulled out his gun. The excitement of the event caused the night guard to have a heart attack, which was fatal. The police entered at that moment and arrested the three men for burglary and felony murder of the night guard.
What is the third coworker’s best defense against the felony-murder charge?
A) He did not intend to kill the night guard.
B) He was under duress to commit the burglary.
C) He had permission to enter the jewelry store.
D) He could not have foreseen the security guard’s heart attack.
B) He was under duress to commit the burglary.
Duress is a defense to felony murder when a third party’s unlawful threat causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law—thereby causing the defendant to do so.
Note: If entry is gained with consent, a breaking can still occur if the defendant breaks into a part of the structure—e.g., by opening a closet door or wall safe (as the coworkers did here). Therefore, the fact that the third coworker had permission to enter the jewelry store is also no defense
Note: Duress is not a defense to intentional murder
Dusty and Walt were coworkers. Dusty admired Walt’s wristwatch and frequently said how much he wished he had one like it. Walt decided to give Dusty the watch for his birthday the following week. One the weekend before Dusty’s birthday, Dusty and Walt were at a company picnic. Walt took off his watch to join a softball game. Dusty strolled by, saw the watch on the blanket and decided to steal it. He bent over and picked up the watch. Before he could pocket it, however, Walt returned. When he saw Dusty holding the watch, he said, “Dusty, I know how much you like that watch. I was planning to give it to you for your birthday. Go ahead and take it now.”
What crime, if any, has Dusty committed?
A) Attempted Larceny
B) Larceny
C) Embezzlement
D) No crime
B) Larceny
Once Dusty bent over and picked up the watch he exerted control over the object and possessed the requisite intent.
Hink, a college student, was a member of a fraternity. On Saturday night, Hink and his friend Lee were attending a toga party at the fraternity house. While the party was in progress, a few students from a rival fraternity vandalized some of the cars parked outside the fraternity house. They broke the headlights and stole the battery from Hink’s car. When the party ended, Hink and lee left the fraternity house and got into his car. Hink, who was about to drive Lee home, was unaware of what happened. He tried to start the car, but it wouldn’t turn on. Two police officers, who were parked outside the fraternity house, watched Hink as he tried to start the car. They then approached Hink and charged him with attempting to violate a local ordinance making it a misdemeanor crime to drive at night without headlints.
What is Hink’s best defense to the charge?
A) Factual Impossibility
B) Legal impossibiility
C) Entrapment
D) no requisite intent
D) no requisite intent
Attempt crimes = Specific intent (fiAt)
Hink had no knowledge of the fact that his headlights were out.
A state statute provides: “The sale of an alcoholic beverage to any person under the age of 21 is a misdemeanor.” A woman who was 20 years old but looked older and who had a very convincing fake driver’s license, indicating she was 24, entered a convenience store, picked up a six-pack of beer, and placed the beer on the counter. The store clerk, after examining the driver’s license, rang up the purchase. Both the clerk and store owner have been charged with violating the statute.
If the court finds both the clerk and the store owner guilty, what standard of liability must the court have interpreted the statute to impose?
A) Strict liability only
B) Vicarious liability only
C) Both strict and vicarious liability
D) Either strict or vicarious liability
C) Both strict and vicarious liability
Statutory liability = mens rea not considered.
Vicarious liability: clerk was acting within the scope of his employment
A defendant was validly arrested for the murder of a store clerk and was taken to a police station where he was given Miranda warnings. When an interrogator asked the defendant, “Do you understand your Miranda rights and are you willing to give up those rights and talk with us.” The defendant replied, “Yes.” When asked, “Did you kill the clerk, the defendant replied, “No.” When asked, “Where were you on the day the clerk was killed?” the defendant replied, “Maybe I should talk to a lawyer.” The interrogator asked, “Are you sure?” and the defendant replied, “I’m not sure.” The interrogator then asked, “Why would you want to talk with a lawyer? and the defendant replied, “because I killed the clerk. It was an accident, and I think I need a lawyer to defend me.” At that point all interrogation ceased. Later, the defendant was formally charged with murdering the clerk.
The defendant has moved to suppress evidence of his statement, “I killed the clerk” on the grounds that this statement was elicited on the violation of his Miranda Rights.
Should the defendant’s motion be granted?
A) No, because although the defendant effectively asserted the right to counsel, the question, “Why would you want to talk with a lawyer?” did not constitute custodial interrogation.
B) No, because the defendant did not effectively assert the right to counsel and his conduct prior to making the statement constituted a valid waiver of his Miranda rights.
C) Yes, because although the defendant did not effectively assert the right to counsel, his conduct prior to making the statement did not constitute a valid waiver of his Miranda rights.
D) Yes, because the defendant effectively asserted the right to counsel and the question, “Why would you want to talk with a lawyer?” constituted custodial interrogation.
B) No, because the defendant did not effectively assert the right to counsel and his conduct prior to making the statement constituted a valid waiver of his Miranda rights.
Asserting rights to lawyer: must be clear and unambiguous
The defendant waived his rights when he said he understood them and was willing to speak with police.
A wife decided to kill her husband because she was tired of his infidelity. She managed to obtain some cyanide, a deadly poison. One evening, she poured wine laced with the cyanide into a glass, handed to her husband and proposed a loving toast. The husband was so pleased with the toast that he set the glass of wine down on a table, grabbed his wife and kissed her passionately. She hid the glass of wine behind a lamp, planning to leave for the maid to clean up. The husband did not drink the wine. The maid found the glass of wine while cleaning the next day. Rather than throw the wine away, the maid drank it. Shortly thereafter, she fell into a coma and died from poisoning.
A) Attempted murder of the husband and murder or manslaughter of the maid
B) Only attempted murder of the husband
C) Only the murder or manslaughter of the maid
D) No crime
A) Attempted murder of the husband and murder or manslaughter of the maid
CL Murder: unlawful killing of another human with malice aforethought
+ Malice = intent to kill, intent to cause GBH, depraved heart
Attempt: Specific Intent crime + substantial attempt towards crime
Here, the wife had the requisite intent to kill the husband and took reasonable steps towards the crime, but the crime incomplete, thus making it attempted murder. Her intent can transfer to the maid and the crime was completed.
A woman broke off her engagement to a man but refused to return the engagement ring. One night, the man entered the woman’s house after midnight to retrieve the ring. Although the woman was not at home, a neighbor saw the man enter the house and called for the police. The man unsuccessfully searched for the ring for 10 minutes. As he was walking out the front door, the police arrived and immediately arrested him. The man has been charged with burglary in a jurisdiction that follows the common law.
Which of the following, if proved, would serve as the man’s best defense to the charge?
A) the man knew that the woman kept a key under the doormat and he used the key to enter the house
B) The man incorrectly and unreasonably believed that he was legally entitled to the ring
C) The man knew that no one was at home when he entered the house
D) The man took nothing of value from the house
B) The man incorrectly and unreasonably believed that he was legally entitled to the ring
Theft: Specific Intent Crim (fiaT), includes burglary
Defense to specific intent crime: belief, reasonable or unreasonable, and mistake of fact – negates mens rea of the intent
A defendant is on trial for knowing possession of a stolen TV. the defendant claims that the TV was a gift from a friend, who has disappeared. The defendant seeks to testify that he was present when the friend told her neighbor that the TV had been given to the friend by her mother.
Is the defendant’s testimony about the friend’s statement to the neighbor admissible?
A) No because the friend’s statement is hearsay not within any exception
B) No because the defendant has not presented evidence of circumstances that clearly corroborate the statement
C) Yes, as nonhearsay evidence of the defendant’s belief that the friend owned the TV
D) Yes, under the hearsay exception for statements affecting an interest in property
C) Yes, as nonhearsay evidence of the defendant’s belief that the friend owned the TV
Declarant’s State of Mind - we don’t need the statement to be true, just to show the defendant’s belief that the TV wasn’t stolen
The defendant was charged with conspiracy to distribute drugs for his alleged involvement in a major drug-trafficking ring. The evidence tying the defendant to the drug-trafficking ring was obtained from a warrantless search of the home of a business partner. The defendant had been living with his business partner but recently moved out, leaving a bag filled with cocaine and his identification in the business partner’s home. The bag was discovered by police during a search of the home with the business partner’s consent. Prior to trial, the defendant filed a motion to suppress the cocaine.
How should the court rule on the defendant’s motion to suppress?
A) Deny the motion, because the business partner consented to the search of the home.
B) Deny the motion, because the defendant does not have a privacy interest in the home.
C) Grant the motion, because the defendant had a reasonable expectation of privacy in the home.
D) Grant the motion, because the evidence was discovered as a result of a warrantless search.
B) Deny the motion, because the defendant does not have a privacy interest in the home.
4th Amendment challenge = unreasonable search and seizure
+ legitimate expectation of privacy
+Cannot claim privacy to a home where the defendant doesn’t live.
Note: To prevail on a motion to suppress, the defendant must establish that he has standing to contest the allegedly unlawful Fourth Amendment search. Standing exists when the defendant has a legitimate expectation of privacy (or an ownership/possessory interest) in the area or item searched at the time of the search.
It doesn’t matter if the biz partner consented to the search, we are focusing on the defendant’s standing/expectation of privacy
Two officers went to a man’s home to serve an arrest warrant, but no one answered the door. As they walked around the man’s house, the officers looked into his next door neighbor’s window and saw the man inside the neighbor’s kitchen drinking coffee. The officers knocked on the neighbor’s door, and when the neighbor answered, the officers informed the neighbor that they had a warrant to arrest the man. The officers pushed past the neighbor into the kitchen and arrested the man. While they were in the kitchen, the officers saw a bag of marijuana on the neighbor’s counter. The officers arrested the neighbor, and he was subsequently charged with possession of narcotics. The neighbor moved to suppress evidence of the drugs, and the prosecution argued that the evidence was admissible under the plain view exception to the warrant requirement.
Are the drugs seized in the neighbor’s kitchen likely to be admitted against the neighbor?
A) No, because the officers could not lawfully enter the neighbor’s home without his consent.
B) No, because the officers did not knock and announce to the neighbor their intention to arrest the man.
C) Yes, because the arrest warrant implicitly authorized the officers to take measures necessary to serve the warrant.
D) Yes, because the marijuana was in plain view when the police arrested the man.
A) No, because the officers could not lawfully enter the neighbor’s home without his consent.
An arrest warrant implicitly authorizes entry into the arrestee’s home—not a third party’s home—to serve the warrant. Police may only search for an arrestee in a third party’s home if they have a warrant for the search, exigent circumstances, or consent to enter.
Note: The plain-view doctrine allows an officer conducting a lawful search to seize an apparently illegal item in plain view—even if the item was not named in a warrant—if the officer has lawful access to the item (not seen here).
A police officer received an anonymous tip that the defendant was manufacturing methamphetamine in his basement. Based solely on the tip, the officer obtained a warrant to search the defendant’s basement for drugs and related manufacturing equipment. The officer and his partner went to the defendant’s home to execute the warrant. Believing the defendant was not home, the officers did not knock on the door, but simply opened the unlocked door. In searching the defendant’s basement, the officers found large quantities of methamphetamine, related manufacturing equipment, and a notebook that said “Ledger” across the cover. The notebook contained a ledger, with the names of the defendant’s clients and statements of their accounts. The officers seized all these items. The defendant seeks to suppress the evidence seized by the officers.
What is the defendant’s best argument in favor of suppressing the notebook?
A) The notebook was not named in the warrant.
B) The notebook was in the nature of a personal diary.
C) The officers failed to “knock and announce” their presence.
D) The warrant was invalid.
D) The warrant was invalid.
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
Here, the police made no attempt to verify the tip from an unknown informant, so probable cause was not established. Here = invalid warrant due to lack of verification of anonymous tip.
Note: Had the warrant been valid, then the police could have lawfully seized any items named in that warrant (e.g., methamphetamine, manufacturing equipment). They could have also seized any item in plain view—even if they were not named in the warrant (e.g., the notebook)—if the incriminating nature of the item was immediately apparent and the officers had lawful access to it.
Two undercover police officers, with probable cause to believe that the defendant was a drug dealer, entered the living room of the defendant’s apartment, at the defendant’s invitation, to buy cocaine. Before the transaction could take place, the defendant shot and killed one of the officers. After a brief struggle, the defendant was subdued by the other officer and placed under arrest for murder. Responding to the officer’s request for assistance, uniformed police officers came to the apartment, conducted a protective sweep, and took the defendant to jail. Then the uniformed officers conducted a thorough warrantless search of the apartment, during which they uncovered a large quantity of cocaine in the mattress in the defendant’s bedroom. Based on the amount of cocaine seized, the defendant was charged with possession of cocaine with intent to deal in addition to murder. The defendant filed a motion to suppress the cocaine as having been unconstitutionally seized.
Should the court grant this motion?
A) Yes, because the search was conducted without a warrant.
B) Yes, because the defendant was arrested for murder, not drug dealing.
C) No, because the defendant had a lesser expectation of privacy once arrested.
D) No, because the murder created exigent circumstances.
A) Yes, because the search was conducted without a warrant.
Police may conduct a warrantless search incident to an arrest of the arrestee and the immediate surrounding areas. And the exigent-circumstances exception allows police to conduct a protective sweep to search for injured persons and continued threats.
Once the emergency ended—i.e., the defendant was restrained and no other threats were located—the police were not justified in continuing the warrantless search without an exception:
Exigent circumstance
Search incident to arrest
Consent
Automobile exception
Plain view
Evidence obtained from gov. purpose/admin search
Stop and frisk
Mnemonic: ESCAPES
While on patrol one night, two officers noticed the car of a known drug dealer in the drive-through lane of a fast-food restaurant. Based on prior discussions with informants, the officers had probable cause to believe that the drug dealer had drugs in his vehicle since he regularly made drug deliveries from the trunk of his car. Noticing that the drug dealer’s headlight was out, the officers pulled him over once he left the restaurant and searched his car. The officers did not find any evidence of drugs, but they did find several illegal weapons in the trunk.
Did the officers’ seizure of the weapons violate the drug dealer’s Fourth Amendment rights?
A) Yes, because the drug dealer could not access the trunk from the passenger compartment.
B) Yes, because the officers were searching for drugs, not weapons.
C) Yes, because the stop was pretextual in nature.
D) No, as a valid application of the automobile exception to the warrant requirement.
D) No, as a valid application of the automobile exception to the warrant requirement.
SAD SPACES = exceptions to searches without warrant
Automobile: allows police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime.
Officers can search any area within the vehicle where the evidence might be located, including the trunk and locked containers.
Note: Limitation to areas that the driver can access = only when there is a search incident to a lawful arrest
A grand jury is investigating a corporation for tax fraud. The grand jury subpoenaed several types of corporate records, including emails from several of the corporation’s officers and other business papers. The subpoena was served on the corporation’s chief operating officer (COO), who acted as the custodian of the corporate records. The business papers would implicate several members of the corporation, including the COO, in criminal misconduct. Further, many of the emails written by the COO contained statements about the officers of some of the corporation’s competitors; these statements were defamatory and would likely result in civil liability if they were released. The COO filed a motion to quash the subpoena, arguing that being forced to turn over these corporate records would violate his Fifth Amendment privilege against self-incrimination.
Should the court grant the COO’s motion?
A) No as to both the emails and the business papers.
B) No as to the emails, but yes as to the business papers.
C) Yes as to the emails, but no as to the business papers.
D) Yes as to both the emails and the business papers.
D) Yes as to both the emails and the business papers.
Fifth Amendment: does not apply to evidence that might subject a person to civil liability or to corporations, individuals only
Here, since the privilege does not apply to corporations, the court should deny the COO’s motion to quash as to both the emails and the business papers even though they incriminate the COO
Following the armed robbery of a local bank, the police identified the defendant as a suspect and brought him to the police station for questioning. As soon as they sat down in the interrogation room, the police read the defendant his Miranda rights. The defendant noted that “this seems like the kind of thing where you should have a lawyer.” The police responded that the defendant had that right. The defendant noted that he “didn’t even know a good lawyer” and dropped the issue. In response to each question, the defendant simply repeated, “I don’t know anything about it.” Frustrated, the police discontinued questioning after an hour and left the defendant in the interrogation room alone. Three hours later, the police returned and, without repeating the Miranda warnings, told the defendant that his best friend, who was also a suspect, had already told them all about the robbery and the defendant’s involvement. In fact, the police were searching for the defendant’s best friend to bring him in for questioning but had not been able to locate him. The defendant immediately blurted out, “It was all his idea. I didn’t even want to rob that bank.”
What is the defendant’s best argument that his statement was taken in violation of his Fifth Amendment rights?
A) The defendant did not receive fresh Miranda warnings after the break in questioning.
B) The defendant did not sign a written waiver of his Miranda rights.
C) The lie regarding his best friend’s statement rendered the defendant’s statement involuntary.
D) The police continued to question the defendant after he invoked his right to counsel.
A) The defendant did not receive fresh Miranda warnings after the break in questioning.
Custodial interrogation: in custody, subject to interrogation
If the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation.
A defendant was arrested and charged with robbery. While he was awaiting trial, an inmate in the jail in which he was housed was assaulted, and the police suspected that the defendant was involved. They brought the defendant in for questioning about the assault and provided him with Miranda warnings. The defendant said that he was willing to talk and did not ask for his attorney. He proceeded to tell the police that he had provided another inmate with information about how to obtain a weapon and believed that inmate had been involved in the assault. The defendant was later charged as a co-conspirator in the assault and sought to suppress his statement to the police. He argued that his attorney should have been present during the interrogation.
Is the defendant’s statement likely to be suppressed?
A) No, because the defendant did not specifically invoke his Fifth Amendment right to counsel.
B) No, because the defendant waived his Sixth Amendment right to counsel by failing to request his attorney.
C) Yes, because the defendant did not waive his Fifth Amendment right to counsel.
D) Yes, because the defendant did not provide a knowing, voluntary, and intelligent waiver of his Sixth Amendment right to counsel.
A) No, because the defendant did not specifically invoke his Fifth Amendment right to counsel.
5th Amendment right to counsel: have to invoke right to counsel
6th Amendment right to counsel: do not have to invoke, applies automatically once commencement of judicial proceedings
Pay attention to the crimes and stage of charges
Two police officers responded to a domestic-disturbance call. When the officers arrived at the home in question, they found a man and a woman screaming at each other in the front yard. One officer took the man aside, while the other spoke with the woman. The woman told the officer that she had a restraining order against the man and that he was a convicted felon who often carried a gun. The officers confirmed the restraining order and placed the man under arrest, without giving him Miranda warnings. While the man was in the back of the police car, an officer asked the man if he owned a gun. The man replied that he always keeps a gun in his car for self-protection. The officer then retrieved the gun from the man’s car, which was parked nearby.
The man was later charged with possession of a firearm as a felon. At trial, the man moved to suppress his statement about always having a gun and the gun itself, arguing that he did not receive Miranda warnings prior to being questioned by the officer.
Is the man likely to succeed in having the evidence suppressed?
A) No, as to both the statement and the gun.
B) Yes, as to the statement only.
C) Yes, as to the gun only.
D) Yes, as to both the statement and the gun.
B) Yes, as to the statement only.
A suspect’s incriminating statement during a custodial interrogation without Miranda warnings cannot be used against the suspect at a subsequent trial.
BUT physical evidence obtained as a result of the non-Mirandized statement is admissible so long as that statement was not coerced.
A man, who was represented by counsel, was on trial for arson of an office building. During the trial, the police learned that computers thought to have been destroyed in the fire had instead been stolen. The police visited the man in jail, read him his Miranda rights, which the man voluntarily waived, and questioned him about the theft. In response to the questioning, the man confessed to the theft.
After the man was found not guilty of arson, the prosecutor charged the man with theft and informed the defense that he planned to introduce the man’s statement to the police while he was in jail. The man’s attorney filed a pretrial motion to suppress the statement on the ground that the man’s Sixth Amendment right to counsel had been violated.
How should the court rule on this motion?
A) Deny the motion, because the man was read and waived his Miranda rights.
B) Deny the motion, because theft and arson each require proof of an element that the other does not.
C) Grant the motion, because the arson and the theft took place during the same criminal transaction.
D) Grant the motion, because the defendant was represented by counsel when he was questioned about the theft.
B) Deny the motion, because theft and arson each require proof of an element that the other does not.
6th Amendment right to counsel: attaches to an uncharged crime that constitutes the same offense as a formally charged crime.
DOES NOT attach to an uncharged crime that requires proof of an element that the other does not.
Here, the man had been formally charged with arson at the time of the interview, so he had a Sixth Amendment right to counsel for that crime. However, he had not been charged with the theft. And since arson and theft each require proof of an element that the other crime does not, the man had no Sixth Amendment right to counsel for the theft. Accordingly, the court should deny the motion to suppress the man’s statement.
A defendant was indicted by a grand jury for making false statements to a federally insured bank to obtain a loan in violation of a federal felony statute. After the defendant was arraigned, the federal district court granted the defendant’s request for disclosure of the exculpatory portions of the grand jury transcripts. When the defendant learned that the prosecutor had failed to present the defendant’s federal tax returns in the prosecutor’s possession to the grand jury even though the returns contained exculpatory evidence, the defendant moved to dismiss the indictment.
How should the court rule on the defendant’s motion?
A) Deny the motion, because the defendant knew of his own tax returns.
B) Deny the motion, because the prosecutor was not required to present exculpatory evidence to the grand jury.
C) Grant the motion, because the prosecution of a felony by the federal government must be based on a proper indictment.
D) Grant the motion, because the prosecutor withheld Brady material.
B) Deny the motion, because the prosecutor was not required to present exculpatory evidence to the grand jury.
Grand jury: A prosecutor need not present exculpatory evidence to a grand jury that is considering whether to indict a person.
This evidence is required after indictment and prior to trial.
A defendant on trial for burglary planned to raise in his defense that his arrest was a result of racial profiling. During voir dire, the prosecutor exercised his peremptory challenges to exclude all nonwhite jurors, not just those of the defendant’s race, from the jury panel. When the defendant objected to these challenges as discriminatory, the prosecutor responded that he was concerned that nonwhite jurors would unfairly side with the defense’s argument that the police unjustly profiled the defendant.
Should the court sustain the defendant’s objection?
A) No, because the ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.
B) No, because the prosecutor’s challenges excluded all nonwhite jurors, not just those of the same race as the defendant.
C) Yes, because race is “inextricably bound up” in a case involving allegations of racial profiling.
D) Yes, because the prosecution failed to provide a race-neutral explanation for the peremptory strikes.
D) Yes, because the prosecution failed to provide a race-neutral explanation for the peremptory strikes.
The Fourteenth Amendment equal protection clause prohibits striking potential jurors based solely on their race, ethnicity, or sex.
In a jury trial, an adult defendant was found guilty of first-degree premeditated murder, a capital offense. During the sentencing phase of the trial, the defense presented evidence of mitigating circumstances, while the prosecution presented evidence of aggravating circumstances. The jury rendered an advisory sentence of death without specifying the factual basis for its recommendation. The judge independently found the existence of two aggravating circumstances beyond a reasonable doubt, weighed the aggravating and mitigating circumstances, and, agreeing with the jury’s advisory sentence, imposed the death sentence.
On appeal, the defendant has challenged the imposition of the death sentence as unconstitutional.
How should the appellate court rule?
A) For the defendant, because the judge imposed the death sentence.
B) For the defendant, because the jury did not find a specific aggravating circumstance that justified the imposition of the death penalty.
C) Against the defendant, because the jury and the judge both concurred with imposing the death sentence.
D) Against the defendant, because the judge found two aggravating circumstances beyond a reasonable doubt.
B) For the defendant, because the jury did not find a specific aggravating circumstance that justified the imposition of the death penalty.
Due Process: requires that any fact (e.g., aggravating circumstances) that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and decided by the jury.
Imposing the death sentence here was unconstitutional and the court of appeals should rule for the defendant.
A defendant was charged with both battery and robbery of a victim. The defendant was found guilty of battery but acquitted of the robbery charge. Subsequently, the victim died from the injuries inflicted by the defendant. The defendant has been charged with felony murder of the victim. The defendant has moved for dismissal of this charge on double jeopardy grounds.
How is the court likely to rule on this motion?
A) Grant the motion, because the defendant was convicted of battery.
B) Grant the motion, because the defendant was acquitted of robbery.
C) Deny the motion, because the victim’s death took place after the defendant’s first trial.
D) Deny the motion, because of the collateral-estoppel doctrine.
B) Grant the motion, because the defendant was acquitted of robbery.
A felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial is improper = requires retrying the underlying felony in violation of the double jeopardy clause.
Note: A conviction of a lesser included offense prior to the occurrence of an event necessary to establish a greater offense does not preclude trial of the greater offense. Therefore, the fact that the defendant was convicted of battery is not a basis to grant the motion to dismiss.
A manager runs a soup kitchen for malnourished children whose parents cannot afford to provide their children with freshly cooked, nutritious meals. So that the soup kitchen can remain financially viable, the manager often accepts free ingredients from a local food bank. One day, the manager received 400 pounds of potatoes from the food bank. He had very few other ingredients on hand that day, so he decided to serve a healthy potato soup for the children. The manager started opening the potato bags and noticed that a majority of the potatoes had green eyes and greenish skin. When he gave the potatoes to his volunteer chef, the chef mentioned that green potatoes are unsafe and potentially toxic, especially when fed to children. The manager brushed her off and said that the green potatoes were just unripe. The chef refused to cook with the green potatoes, so she left the soup kitchen and the manager made the potato soup by himself.
A few weeks later, many of the children who had ingested the potato soup ended up in comas. The doctors were able to trace the cause of the comas back to the toxic green potatoes. The doctors saved all but two of the children, who never came out of the comas and eventually died.
The jurisdiction defines first-degree murder as murder committed willfully with premeditation and deliberation, second-degree murder as all other murder at common law, and voluntary manslaughter as at common law.
The following are listed in descending order of seriousness. What is the most serious offense of which the manager can be properly convicted?
A) First-degree murder.
B) Second-degree murder.
C) Voluntary manslaughter.
D) No form of criminal homicide.
B) Second-degree murder.
depraved-heart murder – an unintentional killing that results from reckless indifference to an unjustifiably high risk to human life.
Here, the manager was told that green potatoes are potentially toxic, especially when fed to children. The manager “brushed off” this warning and fed green potatoes to the children anyway. This fact is likely sufficient to hold the manager liable for depraved-heart murder, which is classified as second-degree murder in the jurisdiction
Note: Voluntary manslaughter requires an intentional killing. Since the manager did not intent to kill the children—he believed that the green potatoes were merely unripe—he cannot be convicted of this crime.
An employee was up for a promotion but was passed over by his boss for a female colleague with more experience. After learning that he had not received the promotion, the employee became angry with his boss and convinced himself that the colleague and the boss, who was married, were involved in a relationship. He thereafter contacted the boss’s wife and convinced her to murder the boss. The employee and the wife stated that they would not harm the colleague, as it might make their involvement too obvious. The employee provided the wife with a gun.
The next day, the wife approached the colleague and the boss in their office parking lot. The wife, who was not an experienced shooter, shot the colleague in the arm, panicked, and then ran off. An onlooker rushed the colleague to the hospital. Although the injury was not life threatening, the colleague contracted an infection during surgery and died the following week. A later investigation revealed that the infection was a result of medical malpractice that occurred during the surgery. The crime was eventually traced back to the employee and the wife, and they were both charged in connection with the colleague’s death.
The employee is most likely to be convicted of which of the following crimes?
A) Murder, attempted murder, and conspiracy to commit murder.
B) Murder and conspiracy to commit murder only.
C) Attempted murder and conspiracy to commit murder only.
D) Murder only.
A) Murder, attempted murder, and conspiracy to commit murder.
Pinkerton rule: conspirator is criminally liable for any foreseeable crimes committed by a coconspirator acting in furtherance of the conspiracy.
The conspiracy is completed upon the occurrence of the agreement and (if required) the overt act—the unlawful purpose (to murder the boss) need not be accomplished. Therefore, the employee can be convicted of conspiracy to commit murder.
Here, the colleague would not have died but for the wife’s conduct (actual causation), and the colleague’s death was a foreseeable consequence of that conduct (proximate causation)—notwithstanding the medical malpractice. And since the killing was committed in furtherance of the conspiracy, the wife and the employee—as her coconspirator—are also guilty of murder
A gardener entered a garden center during regular business hours. He intended to steal some heirloom parsley plants for his garden. He noticed a display of regular parsley plants at the back of the store, but mistakenly believed they were a very valuable type of heirloom parsley. When no one was looking, he took two small parsley plants from the sales display, put them under his sweatshirt, and left the store.
At the register, there was a sign that advertised, “Like parsley? We like it so much that we grew more than we need this season! Today only, we are offering each customer two free parsley plants from our surplus!” The gardener never saw the sign.
Burglary in the jurisdiction is defined as “entering any building unlawfully with the intent to commit a crime.” The jurisdiction follows the common-law definition of larceny. The following crimes are listed in descending order of seriousness.
Which is the most serious crime(s) of which the gardener may be convicted?
A) Burglary and larceny.
B) Burglary only.
C) Larceny only.
D) Attempted larceny only.
D) Attempted larceny only.
larceny requires a trespassory taking, so a person cannot commit larceny by taking property freely given by another—even if the person was unaware of this fact.
However, the gardener can be convicted of attempt, which occurs when a person: 1) has the specific intent to commit a crime (here, larceny); 2) acts in furtherance of that crime (by taking and leaving the store with two parsley plants) BUT does not complete it (the plants were free, so no larceny occurred).
A woman suffered from a debilitating disease, and her husband convinced her that having sexual intercourse with him would cure the disease. The husband knew that his statement was false. Relying on this statement, the woman gave her consent, and the two had sexual intercourse. Later, the woman learned that intercourse could not and did not cure her disease, and she notified the police.
Rape is statutorily defined in this jurisdiction as “sexual intercourse with a female against her will.” The husband was convicted of rape.
If the husband appeals the conviction, how should the appellate court rule on the appeal?
A) Affirm the conviction, because the husband had the specific intent to rape the woman.
B) Affirm the conviction, because the husband obtained the woman’s consent through fraudulent means.
C) Reverse the conviction, because the husband was married to the woman.
D) Reverse the conviction, because the intercourse was not against the woman’s will.
D) Reverse the conviction, because the intercourse was not against the woman’s will.
Consent obtained by fraud in factum = not a defense to rape
Consent obtained by fraud in the inducement = valid defense to rape
Here, the husband convinced the woman to have sexual intercourse with him by falsely claiming that it would cure her debilitating disease. Since the woman knew that the act to which she consented was sexual intercourse, her consent was obtained by fraud in the inducement. This type of fraud did not negate the woman’s consent.
A man spent the afternoon at the beach with his girlfriend. Each of them had consumed a significant quantity of alcohol. The man saw one of the town’s wealthiest residents arrive at the beach, spread out a beach towel, put a large cloth bag on the towel, drop what looked like a wallet into the bag, and run into the ocean. The man recounted his observations regarding the wealthy man’s actions to his girlfriend. She didn’t respond, but she walked over to the bag and opened it. The bag did not contain the wealthy man’s wallet, but it did contain an expensive ring. She took the ring and closed the bag. The wealthy man’s companion, who was just coming onto the beach, observed the girlfriend’s action and alerted a nearby police officer. The girlfriend was arrested. Soon thereafter, the man was arrested as well.
The man is charged with, among other crimes, conspiracy to commit larceny. The applicable jurisdiction has adopted the bilateral approach to conspiracy.
Which of the following is the WEAKEST argument that the man can advance in defense of the conspiracy charge?
A) The bag did not contain a wallet, making it impossible for the man or his girlfriend to have taken it.
B) The girlfriend’s intoxicated state prevented her from forming the intent necessary to commit larceny.
C) The man’s conversation with his girlfriend was inadequate to form a conspiracy agreement.
D) The man’s intoxicated state prevented him from forming the intent necessary to commit larceny.
A) The bag did not contain a wallet, making it impossible for the man or his girlfriend to have taken it.
Factual impossibility—i.e., the existence of an unknown condition that makes the unlawful objective impossible to complete—is never a defense to conspiracy.
A man who worked nights was unable to sleep during the day because of the persistent barking of a neighbor’s dog. Despite repeated requests to the neighbor to address the problem, the barking persisted. The man decided to purchase a pistol to kill the dog. Unfamiliar with firearms, the man bought a pistol but accidentally bought blank ammunition. Standing in his own yard, the man fired several shots at the barking dog that was about 10 feet away in his neighbor’s yard, thinking he was firing real bullets. The dog was unharmed because the blanks were incapable of inflicting harm.
In the applicable jurisdiction, malicious destruction of property is a statutory crime. The highest court of this jurisdiction has ruled that this statutory crime requires the reckless destruction, injury, or defacement of the property of another.
Is the man likely to be found guilty of attempted malicious destruction of property?
A) No, because a reasonable person would have been aware that the blank bullets would not harm the dog.
B) No, because it was impossible for the man to have killed the dog.
C) Yes, because the man acted recklessly in shooting at the dog.
D) Yes, because the man was unaware that the blank bullets would not harm the dog.
D) Yes, because the man was unaware that the blank bullets would not harm the dog.
Defendant is guilty of an attempted crime if s/he
1) had the specific intent to commit a crime; and
2) performed an act in furtherance of the crime BUT
3) did not complete it.
Here, the man formed the specific intent to kill the neighbor’s dog. To do so, the man purchased a pistol and fired it at the dog (acts). And though it was factually impossible for the man to kill the dog—because he unknowingly bought blanks—this is no defense to attempt
Note: attempt conviction requires proof that the defendant had the specific intent to commit an offense. Therefore, proof that the man merely acted recklessly in firing at the dog would not suffice
A police officer believed that a particular house was being used to conduct drug deals. He observed people coming and going at all hours, although he did not see any drugs change hands. One afternoon, the officer saw a person drop a small bag on the porch when he was leaving the house. The person picked the bag up, but the officer thought that perhaps some residue remained. The officer went to the police station, got a trained drug-detection dog, and went to the house. He went up onto the porch with the dog, and the dog alerted him to the presence of drugs.
Based on the dog’s reaction, a search warrant was issued for the house. A subsequent search led to the discovery of various kinds of drugs. The owner of the house was arrested and charged with drug possession and distribution. The owner moved to suppress the drugs found, claiming that the use of the trained drug-detection dog constituted an illegal search.
Should the court grant the owner’s motion to suppress?
A) No, because the officer had probable cause to conduct a search based on his observations of the house.
B) No, because the use of a trained dog to sniff for the presence of drugs does not constitute a search.
C) Yes, because the use of a trained dog to sniff for the presence of drugs is a per se constitutional violation.
D) Yes, because the use of a trained dog to sniff for the presence of drugs on the porch of a house constitutes a search.
D) Yes, because the use of a trained dog to sniff for the presence of drugs on the porch of a house constitutes a search.
Police have an implied license to briefly enter a person’s curtilage in the same manner as a private individual. But if police intrude in an unusual manner for an uncommon purpose (e.g., to conduct a canine search), a warrant is generally required.
Here, the search was unreasonable because it was not supported by a warrant or an exception, so the drugs obtained as a result of that search should be suppressed.
Note: The officer may have had probable cause to believe that the house was being used to conduct drug deals. However, absent some exception, the officer was still required to obtain a warrant to conduct a canine search.
A man and a woman were leaders of a gang and drug dealers. Some rival gang leaders burned their house to the ground. The man and the woman then checked into a motel. The police, who had been watching the couple, thought that they had probably taken any remaining drugs with them to the motel. The police went to the motel’s front desk and asked the desk clerk, an employee of the business, to open the couple’s room. When the desk clerk let the police into the couple’s room, the police found bags of cocaine and heroin on the dresser and the bed. The man and the woman were arrested and charged with drug possession with the intent to distribute. The man has moved to suppress the cocaine and heroin.
Will his motion likely succeed?
A) No, because the desk clerk consented to the search.
B) No, because the police had probable cause to search the motel room.
C) Yes, because a guest has a reasonable expectation of privacy in a motel room.
D) Yes, because the desk clerk was not the manager of the motel.
C) Yes, because a guest has a reasonable expectation of privacy in a motel room.
Motel guests have a reasonable expectation of privacy in their rooms, so police generally must obtain a warrant to search the room. Police cannot circumvent the warrant requirement by asking motel managers or employees to consent to a warrantless search of a guest’s room because they lack the authority to do so.
An officer pulled over the defendant for speeding. When he ran the defendant’s driver’s license, the officer saw that there was an outstanding warrant for the defendant’s arrest based on her failure to pay child support. The officer arrested the defendant and placed her in the backseat of his squad car. The officer then returned to the defendant’s car and saw that her purse was sitting on the passenger seat. The officer searched the purse and found a small amount of marijuana, which the defendant was not entitled to have. The defendant was later charged with drug possession. She has moved to suppress evidence of the marijuana.
Is the defendant likely to succeed in having evidence of the marijuana suppressed?
A) No, because the officer was permitted to conduct a search of containers immediately associated with the defendant, including her purse, incident to a valid arrest.
B) No, because the officer was permitted to conduct a search of the passenger compartment of the defendant’s vehicle incident to a valid arrest.
C) Yes, because the officer did not have a reasonable belief that the purse on the passenger seat of the defendant’s vehicle contained evidence of the offense.
D) Yes, because the officer could not search the defendant’s vehicle without probable cause to believe that the vehicle contained contraband.
C) Yes, because the officer did not have a reasonable belief that the purse on the passenger seat of the defendant’s vehicle contained evidence of the offense.
Police may conduct a warrantless search incident to arrest when a person has been lawfully arrested and the search is limited to the person’s body and areas within the person’s immediate reach. The vehicle may also be searched it is reasonable to believe that evidence of the crime may be found therein
Note: The purse was not immediately associated with the defendant when she was arrested and placed in the squad car because it was in her car, beyond her reach. But had the purse been on her person, the officer could have searched it
Responding to a 911 call reporting an apparent drug deal, a uniformed police officer parked on the street in front of the defendant’s home. As the officer got out of her car, the defendant and his wife were standing on the front porch of their home. The officer overheard the defendant say to his wife, “Go inside and hide the stash. They can’t follow you without a warrant.” The officer detained the defendant and his wife, preventing them from entering their house until backup arrived.
At the defendant’s subsequent trial for drug possession, is his statement constitutionally admissible?
A) No, as a violation of the Fourth Amendment.
B) No, as a violation of the Fifth Amendment.
C) Yes, under an exception to the warrant requirement.
D) Yes, because use of the statement does not violate the defendant’s constitutional rights.
D) Yes, because use of the statement does not violate the defendant’s constitutional rights.
There is no Fourth Amendment search if an officer hears a statement from a place where the officer has a lawful right to be, and the Fifth Amendment does not protect voluntary incriminating statements.
A suspect was arrested for kidnapping a child, read his Miranda rights, and placed in the back of a police car. The suspect immediately requested an attorney. While transporting the suspect to the police station, the two officers had a brief discussion between themselves on the immorality of hurting a child. Despite the fact that their conversation was unlikely to elicit an incriminating response from the suspect, after listening to the officers’ conversation, the suspect admitted that he had kidnapped the child. At trial, the suspect moved to suppress his confession.
Should the court grant the motion to suppress?
A) No, because the officers’ conversation was unlikely to elicit an incriminating response.
B) No, because the officers read the suspect his Miranda rights prior to his statement.
C) Yes, because the suspect had requested an attorney.
D) Yes, because the suspect was in police custody.
A) No, because the officers’ conversation was unlikely to elicit an incriminating response.
All interrogation must cease if a suspect invokes the Fifth Amendment right to counsel. But if the suspect then makes a volunteered statement not prompted by police interrogation, then that statement can be used against the suspect at trial.
Note: Although the officers read the suspect his Miranda rights prior to the statement, they could not interrogate the suspect after he invoked those rights by requesting an attorney. So had the officers’ conversation been likely to elicit an incriminating response, the suspect’s statement would not have been admissible.
An undercover officer infiltrated a gang by posing as a gang member. While working undercover, the officer heard that a member of the gang had shot and killed one of the leaders of a rival gang. The undercover officer coordinated with the police department’s gang unit to conduct a sweep whereby each gang member, including the undercover officer, would be taken into custody on minor charges. The officer made sure that he and the gang member suspected of the murder were placed in the same cell. While in the cell, the officer brought up the shooting, indicating that he was very impressed by whoever had the courage to kill the rival gang leader. The gang member, taking the bait, bragged that he had shot the rival gang leader but told the officer to keep the information secret. The gang member was arrested for the murder and the prosecution sought to introduce the statement made to the undercover officer.
Is the statement likely to be admitted?
A) No, because the gang member was questioned by a police officer without receiving Miranda warnings.
B) No, because the officer deceived the gang member as to the officer’s true identity.
C) Yes, because the gang member did not know that the undercover officer was a police officer.
D) Yes, because the gang member was not subjected to interrogation.
C) Yes, because the gang member did not know that the undercover officer was a police officer.
Miranda warnings are not 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.
Here, the gang member was subjected to interrogation while he was in custody (jail cell) because the officer knew or should have known that his words were likely to elicit an incriminating response. But since the gang member did not know that he was talking to a police officer, Miranda warnings were not required
Police arrested an 18-year-old defendant at her home that she shared with her parents as an accomplice to a robbery. Before leaving the home, the police asked the defendant whether she was present during the robbery. She indicated in the affirmative. As the police were leaving the home with the defendant, the defendant’s mother returned. The mother inquired about the defendant’s arrest and urged the defendant to “come clean to the police.” The defendant did not respond, and the police took her to the police station.
At the station, after the defendant was given Miranda warnings and signed a Miranda waiver, she was questioned in a noncoercive manner by police. Feeling compelled to follow her mother’s advice, the defendant confessed to her involvement in the robbery. The prosecution sought to introduce the defendant’s confession at trial over the objection of her attorney.
Will the court likely sustain the objection?
A) No, because the defendant waived her Fifth Amendment right to remain silent.
B) No, because the defendant did not have a Fifth Amendment right to remain silent once she was arrested.
C) Yes, because the defendant was not specifically told before she confessed to the robbery that her prior incriminating statement could not be used against her.
D) Yes, because the confession was not voluntary as it was given under the mother’s compulsion.
A) No, because the defendant waived her Fifth Amendment right to remain silent.
A Miranda violation does not automatically require the suppression of the defendant’s later confession made after the receipt of Miranda warnings. Instead, admissibility turns on whether the later confession was voluntary based on the totality of the circumstances.
A defendant agreed to help a friend with a burglary by transporting the friend to the scene of the burglary, keeping watch outside the residence while the friend committed the burglary, and then driving the friend away from the scene. The friend believed that no one would be home at the time of the burglary, so the friend told the defendant that he would be unarmed. The friend lied, and instead carried a gun on his person into the residence. After waiting for several minutes, the defendant got cold feet and drove away from the residence, abandoning his friend. Shortly thereafter, the friend encountered an occupant inside the residence. Panicking, the friend shot and killed the occupant.
The defendant has been charged with felony murder in a jurisdiction that permits capital punishment by lethal injection for felony murder.
Can the death penalty be imposed on the defendant?
A) No, because capital punishment cannot constitutionally be imposed for felony murder.
B) No, because the defendant did not kill, attempt to kill, or intend to kill the occupant.
C) Yes, because death by lethal injection does not constitute cruel and unusual punishment.
D) Yes, because the defendant is guilty of felony murder.
B) No, because the defendant did not kill, attempt to kill, or intend to kill the occupant.
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.
A defendant was tried for felony murder. The jury was unable to reach a unanimous verdict. As a result, the judge declared a mistrial over the defendant’s objection. Subsequently, the state refiled the charges against the defendant.
Is the second prosecution a violation of the defendant’s constitutional protection from double jeopardy?
A) No, because the first trial resulted in a mistrial due to a hung jury.
B) Yes, because the defendant did not consent to the mistrial.
C) Yes, because the double jeopardy clause protects against a second prosecution for the same offense.
D) Yes, because jeopardy attached in the first trial when the jury was impaneled and sworn in.
A) No, because the first trial resulted in a mistrial due to a hung jury.
The double jeopardy clause does NOT bar a second prosecution for the same offense when
1) a mistrial is declared at the defendant’s request
2) with the defendant’s consent, or 3) due to manifest necessity (e.g., a hung jury).
A certified public accountant defrauded a client of money entrusted to the accountant by the client. A state prosecutor charged the accountant with fraud. In a trial without a jury, the accountant was tried and found guilty of fraud and sentenced to imprisonment for one year. Subsequently, the state accountancy board initiated an administrative proceeding against the accountant to revoke the accountant’s license based on his fraudulent conduct. The accountant, contending that the proceeding violates his constitutional protection against double jeopardy, has filed a court petition seeking to quash the proceeding. All of the above actions took place within a single state.
Should the court rule in favor of the accountant?
A) No, because double-jeopardy protections do not apply to administrative proceedings regarding conduct for which a person has already been subjected to criminal punishment.
B) No, because the constitutional protection against double jeopardy does not apply unless the prior criminal punishment was imposed after a jury trial.
C) Yes, because the accountant is being subjected to punishment for conduct for which he has already been punished by imprisonment.
D) Yes, because the fraud trial and the license revocation proceeding were actions brought by the same state.
A) No, because double-jeopardy protections do not apply to administrative proceedings regarding conduct for which a person has already been subjected to criminal punishment.
Double jeopardy: does not apply to admin proceedings
A professional musician’s instrument was stolen from her while she was on tour. An attorney erroneously advised the musician that, if she saw the instrument, she would be legally entitled to use force to regain possession of it in any circumstance. The musician believed the attorney, but in truth, the privilege to use force to recapture property was only available to a person who witnessed the taking of the property and used force immediately thereafter.
Several months later, the musician saw a performer with her instrument at a concert. He had purchased the instrument from the thief without knowing that it had been stolen. When the performer refused to hand over the instrument to the musician, she tried to take the instrument. In the ensuing struggle, the instrument was destroyed.
A statute makes it a crime for a person to use force to recapture property, knowing she has no legal privilege to do so.
If the musician is charged and prosecuted under this statute, can she properly be convicted?
A) No, because she acted on the advice of her attorney.
B) No, because she lacked the necessary mental state.
C) Yes, because reliance on the erroneous advice of an attorney is never a defense.
D) Yes, because she had no privilege to use force to take the instrument.
B) No, because she lacked the necessary mental state.
A mistake of law based on erroneous legal advice is generally no defense to criminal liability. However, reliance on such advice may serve as a defense when the mistake negates the required mental state.
