Past California Bar Exam Questions and Answers

Criminal Law & Procedure Essays & Answers

The following California Bar Exam questions are reprinted with permission of the California Bar Examiners.  The accompanying exam answers are written by Bar None Review.  Use of these answers is for your personal bar review preparation and law school study only.  The exam answers may not be reprinted or republished in any form without express written permission.

Criminal Law Essay 1

Police officers believed that Deft had assaulted Bart because Bart failed to pay Deft for cocaine Deft sold to Bart. The others obtained a valid warrant for the arrest of Deft on an assault charge. They went to Deft’s apartment and arrested Deft at the front door when he responded to their knock. The officers then walked through the apartment and, in a rear bedroom, saw drug paraphernalia which they left in place.

A police officer advised Deft of his Miranda rights. Deft immediately stated: “I do not want to talk to you.” Deft was booked and placed in a cell with Snitch, an inmate who was known by the jailers to be an informant. Snitch asked Deft why he had been arrested and engaged Deft in a conversation about drug sales during which Deft made statements incriminating himself concerning drug trafficking. Snitch promptly related Deft’s statements to jail personnel.

Police then obtained a warrant authorizing a search of Deft’s apartment for cocaine and drug paraphernalia. The affidavit in support of the warrant recited that Deft had sold cocaine to Bart. The affidavit also recited that a police officer had seen drug paraphernalia in Deft’s apartment. The affidavit did not disclose Deft’s statements to Snitch or the circumstances in which police observed the drug paraphernalia. Officers who executed the search warrant seized the drug paraphernalia and cocaine which they also found in the apartment.

Deft has been charged with possession of cocaine and drug paraphernalia under applicable state laws.

  1. Deft has moved to exclude from evidence his statements to Snitch. Deft claims his statements were involuntary, were elicited after he invoked his Mirandarights, and were obtained in the absence of counsel. He argues that admission of the evidence would violate his rights under the Fifth and Sixth Amendments to the United States Constitution. What arguments should the prosecutor make in opposition to the motion, and how should the court rule on the motion? Discuss.
  2. Deft has also moved to exclude any testimony regarding the police officers’ initial observations of drug paraphernalia in Deft’s home and to exclude the items seized in the search made pursuant to the search warrant.

What arguments based on the Fourth Amendment to the United States Constitution should Deft make in support of this motion, what arguments should the prosecutor make in opposition to the motion, and how should the court rule on the motion? Discuss.

Answer A to Criminal Law Essay 1

I. Exclusion of Statements to Snitch

Deft seeks to exclude incriminating statements he made to Snitch in a jail cell after his arrest. He claims they were obtained in violation of his right to counsel, Miranda Rights and/or Due Process. Note Deft’s arrest was a lawful one since it was based on a warrant.

A. Right to Counsel

The Sixth Amendment Right to Counsel attaches after formal charges have been brought against a criminal defendant.

Deft has only been arrested and booked. The facts don’t support a claim that he has been arraigned or that formal charges have been instituted against him. Thus, there would be no Sixth Amendment Right to Counsel which would forbid any interrogation by the police in the absence of counsel.

B. Miranda Violation

Miranda protects any person from custodial by the police. It is required that all arrestees be given their Miranda warnings and if they are invoked they must be scrupulously honored.

Here, the facts say that Deft was given his Miranda warnings which he invoked, the right to remain silent. At this point, the officers must scrupulously honor that request which it appears they did because no questions were asked of him. He was just booked and placed in a cell. While in the cell he was questioned and talked to Snitch who turned out to be a jailhouse informant.

C. Custodial Interrogation

Clearly, Deft was in custody, he was in jail and wasn’t free to leave. The problem Is that there was no “interrogation” that is protected by Miranda. Interrogation is defined as “statements or conduct designed or likely to elicit incriminating information.”

Here, all the police did was put Deft in a cell with a person who engaged him in conversation. This situation presents none of the coercive situations Miranda was designed to protect, coercive questioning by police officers. As Deft could decide to talk to Snitch or not, once he did, he bore the risk Snitch would do just that. The fact that the police knew Snitch was an informant and put Deft in there after he invoked his right doesn’t result in any violation of Miranda. Again, the coercive pressures were not present. His statement was voluntary and not the subject of custodial interrogation.

D. Due Process

The Due Process claim of the Fifth prevents the use of involuntary statements a defendant makes. To be involuntary under the Fifth Amendment there must be some police action that results in coercion. Here, as discussed above, the police did nothing that would shock the conscience of the court. He wasn’t beaten, threatened or anything; he was only placed in a cell with an informant.

Thus, there was no coercion that would make the statement involuntary.

E. Conclusion

Since there was no Sixth Amendment Right to Counsel and the police scrupulously honored Deft’s invocation of Miranda, the statements should be admitted.

II. Testimony Re: Initial Observations

The testimony regarding the initial observations of drug paraphernalia in Deft’s apartment is relevant in that it provides a basis for the secret warrant police acquired. The problem is that this may have been obtained pursuant to a violation of Deft’s Fourth Amendment rights.

A. Fourth Amendment

The Fourth Amendment protects persons and their property from unreasonable searches and seizures.

Here, the police went into Deft’s room and “searched” and as a result, saw drug paraphernalia. This amounted to a search because Deft had a “Reasonable Expectation of Privacy” in his bedroom. The police violated that expectation by entering it. Thus, there was a search of Deft’s bedroom.

Fourth Amendment violations may be excused by one of several exceptions. Here, the police can argue:

1. Consent. Though the facts don’t support it, if Deft gave the officers permission to look in the back bedroom, then the Fourth Amendment would be satisfied.

2. Plain View. Evidence that is observed from a place the police have a legal right to be is deemed to be in plain view and can be observed without resulting in a search.

Here, the police may argue that pursuant to a lawful arrest warrant they were arresting Deft and had a right to be in the back bedroom. Generally, an arrest warrant only allows the cops to arrest a person and not make any searches other than a protective sweep or search incident to a lawful arrest.

a. Protective Sweep. In arresting a person, the police may make a cursory look of area where they believe compatriots may be hiding for the safety of the police.

Here, there is no evidence Deft had accomplices, further, he answered the front door so the police wouldn’t be threatened by any compatriots in the back room. Deft was charged with committing a battery, not a crime involving co-conspiration. Thus, a protective sweep does not appear justified in this situation because of the absence of a threat to the police as well in the scope of the sweep, the back bedroom.

b. Search incident to a Lawful Arrest. If the police observed the drug paraphernalia pursuant to a search incident to a lawful arrest, then it would have been a proper action, in fact, they could have seized it.

However, a search incident to a lawful arrest must be limited to the person arrested and the area within his immediate control where evidence or a weapon could be grabbed.

Here, the police went back into the back bedroom after Deft answered the door, thus, it does not appear to be within his immediate control and any search of it would be outside the scope. However, it may be possible they went back there with Deft so he could change clothes or something. In this case, then they would be warranted to be there and be entitled to search a limited area for weapon.

Plain View. In this instance, they would be in a place they have a lawful right to be and though they couldn’t search, anything observed in there would be in Plain View.

B. Conclusion

The testimony should be excluded because it was obtained as a result of an unlawful search.

However, if one of the above exceptions (plain view, search incident to lawful arrests) applies it would be admissible. But given the fact the area involved is the back bedroom and Deft answered the door, this doesn’t appear likely.

III. Exclusion of Evidence

Deft seeks to exclude evidence obtained pursuant to the search warrant from his home. Under the Exclusionary Rule, any evidence obtained in violation of the Fourth Amendment is excluded from the prosecutions case in chief.

The Fourth Amendment generally requires a warrant in order to justify the search and seizure of a person or their property.

A. Validity of the Warrant – Probable Cause?

The warrant here was issued in reliance of testimony that was obtained pursuant to a Fourth Amendment violation (testimony of drug paraphernalia) and because of a recitement of fact that Deft sold drugs to Bart.

Conclusory affidavits aren’t sufficient to create probable cause. Thus, absent any showing as to the basis for the belief that Deft sold drugs and a showing of reliability, this is an insufficient affidavit. Likewise, the testimony obtained pursuant to an illegal search is insufficient to create probable cause. Thus, the warrant may be held invalid.

B. Good Faith Exception

The prosecutor may argue that under the good faith exception, if the police officers believed in good faith the warrant was valid then the evidence is admissible.

However, this exception doesn’t apply when the basis for probable cause is a conclusory affidavit, as the one regarding Deft’s sale of drugs to Bart may be. However, it would still protect the information regarding drug paraphernalia which may be enough to create probable cause even though it was obtained pursuant to a Fourth Amendment violation, so long as the executing officers were in good faith.

C. Conclusion

Evidence is admissible even with invalid warrant if police were in good faith and the testimony regarding drug paraphernalia was sufficient probable cause.

Answer B to Criminal Law Essay 1

1. Motion to Exclude Deft’s Statements to Snitch

A. Fifth Amendment

The Fifth Amendment guarantees that the state will not involuntarily elicit self-incriminating testimony. This protection applies when a defendant is in police custody, and applies to police interrogation. An interrogation is any act by the police which should reasonably be expected to elicit a response from the defendant.

When a defendant invokes his right to remain silent under the Fifth Amendment, the police must immediately cease all interrogation. The police may later reinitiate interrogation only after a break, a fresh warning of the defendants’ right to remain silent, and about a different crime.

Here, Deft (D) was arrested by the police. He was therefore in police custody. D invoked his right to remain silent. The police therefore were required to cease all interrogation of D.

When the police placed D in the cell with Snitch (S), they knew that S was an informant, and would likely relay any statements made by D. D’s Fifth Amendment rights, however, were not violated by this action because D’s statements to S were not in response to police interrogation.

Although D’s statements were in response to S’s questions, S had not been instructed by the police to question D. Therefore, S was not a state agent. Further, D did not know that S was an informant, so that his statements were not involuntarily made in response to police intimidation.

Therefore, D’s motion to exclude S’s testimony should not be granted under the Fifth Amendment.

B. Sixth Amendment

The Sixth Amendment guarantees criminal defendants the right to counsel in all adversarial proceedings. Thus, after a defendant has been charged, the police may not question him outside of the presence of his counsel. The Sixth Amendment right to counsel may only be waived by the defendant when he voluntarily reinitiates questioning. However, the Sixth Amendment right to counsel is offense specific, so that while the police may not question the defendant after he has been charged about the crime charged, the defendant may be questioned about other crimes.

Here, D will argue that his Sixth Amendment rights were violated when the police intentionally placed him in the cell with S, a known informant.

The prosecutor will argue that there was no violation of D’s Sixth Amendment rights because D had not yet been charged. D had merely been booked, so no adversarial proceedings had occurred.

Further, the prosecutor will argue that S questioned D about drug possession, D had been charged with assault. These are different crimes. Therefore, the Sixth Amendment would not apply.

Finally, the prosecution will argue that S was not a government agent. Although the police knew that S was an informant, they did not instruct him to question D. Therefore, there was no state action.

These are strong arguments by the prosecution, and the court should not grant D’s motion under the Sixth Amendment.

Therefore, since D’s motion is not supported by either the Fifth or Sixth Amendments, his motion should be denied, and S should be allowed to testify.

2. Motion to Exclude Evidence

The Fourth Amendment guarantees that the state will not conduct any unreasonable search and seizure. A defendant has standing to invoke the Fourth Amendment when he has a reasonable expectation of privacy in the area searched or items seized. A search is valid under the Fourth Amendment only if the police have probable cause and a valid warrant. If the police lack a valid warrant, the search may still be legal if one of the exceptions to the warrant requirement applies.

Here, the challenged evidence comes from D’s apartment. A defendant has a reasonable expectation of privacy in his home, so D has standing to challenge the evidence. Further, the searches were by the police, so that state action exists, and the Fourth Amendment applies.

A. The Drug Paraphernalia was Illegally Observed

D will argue that police officers were illegally searching his apartment when they observed the drug paraphernalia, so that testimony of this observation must be excluded. Although the police had a valid warrant for D’s arrest, they did not have a search warrant. Therefore, this evidence must be excluded unless an exception to the warrant requirement applies.

1. Search Incident to Arrest

When police lawfully arrest a defendant, they may legally search the immediate area (the defendant’s “wingspan”). This exception to the warrant requirement is for the officers’ safety, so that the defendant cannot reach for a weapon or destroy evidence.

Here, the police had a warrant to arrest D, so that the arrest is lawful. Their entry into D’s apartment, however, extended far beyond D’s “wingspan.” The drug paraphernalia was seen in the back bedroom. Therefore, this exception would not apply.

The prosecutor could argue that the police were conducting a protective sweep, to be sure that no other persons who would be potentially dangerous were hiding in the apartment. However, the police would need to show that they had some reasonable suspicion of the presence of others.

2. Plain View

If the police were lawfully in D’s apartment, the prosecutor will argue that testimony regarding the drug paraphernalia is admissible under the plain view exception. However, this exception is being destroyed or that harm is occurring.

Here, there is no evidence of exigent circumstances. D surrendered himself at the door. The police did not hear sounds from the interior of the apartment. Therefore, this exception will not apply.

Therefore, the court should grant D’s motion to exclude testimony of the officers’ observation of the drug paraphernalia.

B. The Drug Paraphernalia and Cocaine Were Seized Under an Illegal Warrant

D will argue that the warrant used by the police to seize the drug paraphernalia and cocaine was illegal. In order to be legal, a warrant must be based on probable cause and must definitely identify the area to be searched and items to be seized.

Here, D will argue that the information in the affidavit that the police had seen drug paraphernalia was illegal. Therefore, other evidence found as a result of this illegal evidence must be excluded as fruit of the poisonous tree. Further, D will argue that there was no probable cause to support the allegation that D had sold cocaine to Bart. The affidavit failed to state the source of this allegation.

The prosecutor will argue that a warrant must be judged according to the totality of the circumstances in order to judge whether probable cause existed. Here, the prosecutor will argue that probable cause did exist when all the information in the affidavit is judged.

If, however, the warrant is found to be faulty, the prosecutor will argue that the search was still legal since it was based on the officers’ good faith belief that they had a valid warrant. The officer’s good faith will be invalidated only if the warrant was facially invalid, if the affidavit obviously lacked probable cause, or if the police misled the judge by falsifying the affidavit. While the police excluded information from the affidavit, this would not constitute misrepresentation. Therefore, the search would be legal under this exception.

Finally, the prosecutor would also argue that the evidence should not be excluded, even if the warrant was illegal, because the police’s suspicions of D would have led to the inevitable discovery of the evidence.

Therefore, D’s motion to exclude the items seized under the warrant should be denied.

Criminal Law Essay 2

Late at night Officer Jones observed a red sports car with one headlight out, a violation of a traffic law. Jones stopped the car, approached the driver to issue a citation and, following standard police procedure, asked the driver for his license and registration. The license identified the driver as Dan Deft. As Deft handed the license and registration to Jones, Deft said that he “could make life very unpleasant” for Jones if she “messed” with him.

As Jones was writing a citation, she heard a police all points bulletin to be on the alert for a red sports car driven by a male, about 5’8″ tall, 150 pounds, clean-shaven, with dark hair, and wearing glasses, dark pants with a pink puff-sleeved shirt unbuttoned down to the navel. This person was wanted for robbery of Smith, whose purse had just been taken. Deft was actually 5’9″ tall, 160 pounds, clean-shaven, with dark hair, and wore glasses, blue trousers and a rose-colored, puff-sleeved shirt buttoned up to the neck.

Jones placed Deft under arrest for robbery and read him Miranda warnings. Deft invoked his rights to remain silent and to counsel. Jones turned Deft over to other police officers who had arrived at the scene. She then searched Deft’s car and discovered a purse under the seat.

One hour after Deft was arrested, Smith identified Deft as the robber in a one-on-one confrontation at the police station. She said that she was positive in her identification. She also identified the purse found in Deft’s car as hers. Deft was again given Miranda warnings. This time he waived his rights and confessed to the robbery. Deft was then formally charged with robbery and is awaiting trial.

  1. How should the court rule on Deft’s pretrial motions, all based on the United States Constitution, to exclude the following evidence at trial:

    a. His statement to Officer Jones at the scene of the arrest, a motion based on asserted violations of his rights under the Fourth, Fifth and Sixth Amendments? Discuss.

    b. T he purse seized from Deft’s car, a motion based upon asserted violations of his rights under the Fourth Amendment? Discuss.

    c. The identification of Deft by Smith at the police station, a motion based on asserted violations of Deft’s rights under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment? Discuss.

    d. His confession at the police station, a motion based on asserted violations of Deft’s rights under the Fifth Amendment? Discuss.

    e. If Deft’s confession is ruled inadmissible at trial because of a violation of the Fifth Amendment, and he testifies at trial, will the Fifth Amendment violation preclude use of the confession to impeach the testimony that Deft gave on either direct or cross-examination? Discuss.

Answer A to Criminal Law Essay 2

1.a. Motion to Exclude Deft’s Statements at Scene of Arrest: 4th Amendment.

Deft’s 4 th Amendment challenge to the admissibility of this statement rests on a contention that the traffic stop was invalid and therefore all statements and evidence obtained as a result should be excluded as fruit of the poisonous tree.

It is true that police are not allowed to randomly stop automobiles in order to check for valid license and registration. However, where an officer has probable cause to stop an auto or where a traffic violation has been committed in the officer’s presence, this suffices as a legitimate reason to stop the car. Here, Jones observed a traffic violation on Deft’s car because one headlight was out. Thus, she had reason to perform a routine stop and cite Deft for the violation. Nothing in the facts states that Jones had an improper motive for stopping Deft.

Thus, the 4th Amendment will not preclude the state from introducing Deft’s statements at the scene of arrest.

5th Amendment

Deft’s 5 th Amendment challenge to the statements will rest on an assertion that Jones should have advised him of his Miranda rights when she stopped him and therefore the statements he made were obtained in violation of Miranda.

The contention will fail, because Miranda must be observed in connection with custodial interrogation by police. Custodial interrogation is deemed to exist where the person is not free to leave and the officer makes statements or engages in conduct which is likely to elicit an incriminating response.

Here, even though Deft was clearly obligated to stop the car and submit to the routine check of license and registration, this does not qualify as custody pursuant to decisions of the U.S. Supreme Court. Routine traffic stops are viewed as imposing a minimal inconvenience on the driver of the stopped vehicle which does not rise to the level of custody. In addition, a police request to view license and registration is not normally something that is likely to result in incriminating statements being made. Thus, all that was involved here before Deft made the threatening statements to Jones was a routine traffic stop, no Miranda warnings were required at that point and the 5th Amendment will not preclude introduction of the statements.

6th Amendment

Deft may try to assert that he had a right to counsel at the traffic stop and the failure to have counsel present makes his statements inadmissible. This will fail because the 6th Amendment right attaches at post-charge critical stages of a criminal proceeding. Here, Deft was merely going to be cited for a traffic violation and was not charged with any crime. Thus, his 6 th Amendment rights were not implicated.

1.b. Challenge to Seizure of Purse from Deft’s Car:

Here, Deft will argue that the search and seizure of the purse from his car was a violation of the 4 th Amendment guarantee against unreasonable searches and seizures.

In order for Deft to make such an assertion, must have had a reasonable expectation of privacy in the place searched and the search must have been accomplished by government agents. Here, Deft probably has a reasonable expectation of privacy in his car to some degree; however, the Court has held that automobiles are subject to much less privacy restrictions than a home. However, Deft probably has some level of expectation of privacy in the car by virtue of his ownership of it. In addition, the search was conducted by official police so the government agency requirement is met.

Deft’s contention will probably center around the fact that no warrant was obtained to search the car. Although a warrant based on probable cause is a requirement for many searches, there are exceptions to this rule. First, the state can probably establish that the search was conducted incident to Jones’s lawful arrest of Deft. Probable cause to arrest Deft arose when a description which nearly exactly described Deft and his car was received by Jones during the routine traffic stop. When a proper arrest is performed, the officer has the ability to search the person and the surrounding area where he might reach for weapons or to conceal evidence.

Here, Deft may try to argue that he had been taken into custody and could not have reached into the car for anything when Jones searched it. However, the scope of a search incident to lawful arrest has been held to extend to the entire passenger compartment of the suspect’s automobile at the time the suspect is taken into custody. Thus, the search which revealed the purse was proper.

In addition, the warrantless search of the auto is probably also justified under the auto exception, which states that once police have probable cause to stop a car suspected of being involved in a crime, the mobility of the vehicle creates an exigent circumstance which gives them the right to search it for weapons or contraband suspected being in the car. Here, Jones had already stopped Deft, but once she had probable cause to believe he was involved in a crime, she was authorized to search the car for any fruit or instrumentality of that crime, namely the purse.

Thus, the seizure of the purse from the car was proper under the Fourth Amendment.

1.c. Motion to Exclude Identification at Police Station: 6th Amendment

Deft has a good argument that the identification by the victim was conducted in violation of his right to counsel. The right to have counsel present attaches to all critical stages of a criminal proceeding after the suspect is charged. Here, although Deft has not yet been indicted, he has been arrested and charged with robbery. In addition, a face to face identification by the victim has been held to be a critical stage at which defendants have a right to have counsel present. In addition, Deft had already invoked his 5th Amendment right to counsel, which would effectively rebut any assertion that he waived his right to have an attorney at the lineup.

Due Process:

Deft can also challenge the manner in which the identification was conducted. A criminal defendant has the right to due process by not having identifications conducted in a way that unnecessarily suggests that the suspect is the culprit or which contains a substantial risk of misidentification. Here, Deft was the only suspect presented to the victim, which greatly increased (and probably guaranteed) the likelihood of his being identified as the perpetrator. In addition, it appears that the police may have suggested to the victim that they found her purse in Deft’s custody, in which case they improperly suggested Deft’s guilt, possibly influencing her identification.

As a result of these violations of due process, the victim will not be allowed to testify to Deft’s identity as the robber at trial based on her police station ID. The ID proceedings will be completely excluded. However, if the victim has an independent basis for identifying the defendant, such as her observation of him when he robbed her, she will be able to testify to that observation and identify him in court as the person who robbed her.

1.d. Motion to Exclude Confession

This motion will encompass Deft’s rights under the 5th Amendment and violations of his Miranda rights to remain silent and to have counsel present at custodial interrogation by police.

Here, because Deft invoked his right to remain silent and his right to counsel at the scene of his arrest, the police were precluded from attempting to question him again without having counsel present. The facts here suggest that the police attempted to do this because they re-Mirandized defendant after the ID by the victim. This was improper without counsel present and it was also improper interrogation because it was not initiated by the defendant. Thus, the confession obtained at the stage will be excluded.

2. Use of Confession at Trial

Even though the confession was obtained in violation of Deft’s 5 th Amendment rights and therefore cannot be used to prove his guilt, the Court has held that improperly obtained confessions can be used as impeachment at trial. Therefore, if Deft testifies that he did not commit the crime or gives an alibi to try to exonerate himself, the prosecution can on cross-examination question Deft about the invalid confession in order to destroy his credibility. The improper confession operates as a prior inconsistent statement in order to suggest that Deft has told a different version of the story before and therefore shouldn’t be believed.

However, the prosecution cannot force Deft to testify in order to question him about the confession because this would violate his 5th Amendment right against compelled testimony which would incriminate him.

Answer B to Criminal Law Essay 2

This case grows out of an ordinary traffic stop that developed into an arrest, and eventual confession, for robbery.

I. Pre-Trial Motions

Deft has made a variety of claims via pretrial motions, each based on some provision of the United States Constitution. The Fourth, Fifth, and Sixth Amendments taken together provide a basic guide to appropriate (and constitutional) procedures to be followed by police when dealing with suspects and evidence in criminal cases. Each of the constitutional guarantees will be discussed below in connection with Deft’s specific claims.

Statement at the Scene of Arrest

Officer Jones stopped Deft because of a broken headlight. When he asked to see Deft’s license and registration, Deft informed him that he “could make life very unpleasant” for Officer Jones if she continued to mess with him. Deft has challenged this under the Fourth, Fifth, and Sixth Amendments.

Fourth Amendment

The Fourth Amendment to the Constitution, which has been held to apply to the states through the Fourteenth Amendment’s requirement of due process, protects people against unreasonable searches and seizures. This vague standard has been distilled by the Supreme Court to impose a basic requirement that searches not be conducted without a warrant, unless one of the six narrowly drawn and jealously guarded exceptions applies, and the additional requirement that arrests not be made without probable cause or without a warrant if made in one’s home.

The Supreme Court has also interpreted the Fourth Amendment to require that any fruits of illicit searches or seizures be excluded at trial. The exclusionary rule, as it is termed, requires that evidence found pursuant to Fourth Amendment violations be excluded unless the police can show an independent source, inevitable discovery, an intervening act of free will by the defendant, or lack of taint.

Deft’s only possible Fourth Amendment challenge here is that he was stopped without probable cause and thus any statement he made while stopped should be excluded. This claim is very unlikely to win, however. Officer Jones stopped Deft because he had a broken headlight, in violation of a city traffic law. Police are entitled to stop drivers for traffic violations, provided that they are not doing so just as a pretext for some illicit purpose. And in many jurisdictions, any stop that has a lawful basis is allowed, even if the officer would not have stopped any other driver for the same violation.

Thus, there is nothing in these facts to suggest that the stop constituted a violation of Deft’s Fourth Amendment rights.

Fifth Amendment

The Fifth Amendment protects all persons against compelled self-incrimination. This requirement, as many other of the provision s the Fifth Amendment, has been applied to the states through the due process clause of the Fourteenth Amendment.

The privilege against self-incrimination has been the subject of a great deal of the Supreme Court’s criminal procedure jurisprudence. Most notably, the requirement that certain warnings be given to a suspect before being interrogated has been read into the Fifth Amendment. Miranda warnings must be given immediately after a suspect is arrested. These warnings include telling the suspect that he has a right to remain silent, that anything he says can and will be held against him in court of law, that he has the right to the assistance of counsel during questioning, and that if he cannot afford a lawyer one will be appointed for him.

If a suspect invokes his Miranda right to counsel or his right to remain silent, questioning must cease. The same rule applies if warnings are not given in the first place.

Deft challenges his statement to police under the Fifth Amendment as well. This claim has no merit. Although he was not mirandized before he threatened the officer, there are three reasons why the statement was not taken in violation of Miranda. First, he likely had not been “arrested.” Although he had been stopped by the police, it was a routine traffic stop that could not give rise to a custodial arrest without more evidence. Second, Miranda only applies when a suspect is in custody. Being the subject of a citation and release traffic stop does not constitute custody. Deft will argue that he did not feel free to leave and thus the stop was custodial. While he may prevail on this point, he faces an insurmountable additional hurdle. A statement must be the result of police interrogation in order to violate Miranda. Interrogation has been interpreted to occur when a statement is made in response to questions reasonably calculated to elicit incriminating statements. Here, Deft’s statement was completely spontaneous. The officer asked him only to hand over his license and registration, a very normal, non-threatening request.

Because the statement was not in response to custodial interrogation, and because none of the coercion and pressure that Miranda was designed to prevent was present, this statement was not a violation of the Fifth Amendment and thus should not be excluded.

Sixth Amendment

Deft also challenges introduction of this statement based on the Sixth Amendment right to counsel. This claim is even weaker than the prior two. The Sixth Amendment provides every criminal defendant with a right to counsel. This right has also been held to apply to the states through the due process clause of the Fourteenth Amendment.

Seizure of the Purse

Deft challenges the seizure of the purse from his vehicle after he was arrested for robbery. This is a losing claim. Although, as explained above, searches normally must be conducted pursuant to a valid warrant, there are some exceptions to this rule. Searches may be conducted without a warrant in six situations: (1) search incident to a lawful arrest; (2) the automobile exception: (3) stop and frisk; (4) consent; (5) plain view; and (6) exigent circumstances.

The most applicable exception in this case is for a search incident to a lawful arrest. The arrest in this case was clearly lawful. Although Deft could not have been executed simply for the traffic law violation, the officer developed probable cause during the initial detention. The bulletin specifying s suspect for a recent bank robbery matched Deft’s description nearly perfectly. Moreover, Deft was driving the exact car described in the bulletin and was acting tense and guilty, as evidenced by his threat to the officer.

Arrest may be made in public without a warrant provided an officer has probable cause. That standard is easily met in this case and thus Officer Jones was entitled to conduct a search incident to this lawful arrest.

The search incident to arrest entitles the Officer to conduct a full body search of the suspect, as well as a search of the immediate area within the suspect’s wingspan. This has been interpreted to include the interior compartment of a car when someone is arrested in his car. Thus, this search was lawfully undertaken and the purse was lawfully seized.

Identification by Smith

Deft challenges the identification of him made by the robbery victim at the police station. He claims violations of the due process clause and the Sixth Amendment.

Although a line-up or show-up identification is considered a critical stage for Sixth Amendment purposes, and thus a suspect is entitled to the representation of counsel, Deft’s Sixth Amendment rights had not yet attached. The show-up occurred one-hour after he arrived at the police station. No formal charges had been filed and thus he did not have a right to the presence of counsel.

Deft may have a due process claim, although it too is weak. To challenge an out-of-court identification under the due process clause of the Fourteenth Amendment, a suspect must show that the line-up procedure was unreasonably and unnecessarily suggestive to the point that reliability of the identification is thrown into question. Deft’s only possible argument is that because the victim was not shown any other suspects at the same time, Smith might have been mistaken in her identification. Showups, however, are generally constitutional and thus this will be a difficult argument for Deft.


After arriving at the police station, Deft was again given his Miranda rights, which he waived. At the time of arrest, he had been given his Miranda rights and invoked both his right to counsel and his right to silence. The question, then, is whether the police may use this confession at trial.

Deft has a strong argument here that his confession is invalid under Miranda. Even though he seemingly waived his rights before confessing, he had already invoked his rights previously. In a series of cases, the Supreme Court developed a number of prophylactic rules to ensure that a suspect’s Fifth Amendment rights are scrupulously honored.

One of those rules is that once a suspect has invoked his Miranda right to counsel, the police may not reinitiate questioning of the suspect on any crime without the presence of counsel. In other words, it is insufficient to wait a period of time, re-warn a suspect and then commence questioning. It is the re-initiation itself that violates the suspect’s rights. With the right to remain silent, the police may simply wait a reasonable period of time before questioning a suspect on a different crime. When that suspect has, however, invoked his right to counsel, waiting is insufficient. The police must ensure that the suspect then has counsel present for all questioning.

Thus, because the police reinitiated questioning after Deft invoked his Miranda right to counsel, it should be excluded at trial.

II. Confession as Impeachment Evidence

As a matter of evidence law, confessions are admissible against a party because they constitute an admission by a party opponent even though such statements would seem to qualify as hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Party admission is, however, under the Federal Rules of Evidence, non-hearsay.

The question remains whether Deft’s confession, taken in violation of Miranda, may be used and in what form.

Criminal Procedure

As a matter of criminal procedure, statements taken in violation of Miranda may be used to impeach a defendant’s testimony at trial. Although this would seem to fly in the face of the elaborate rubric established for protecting defendants against having coerced or unreliable confessions used against them, the Supreme Court has held that statements taken in violation of Miranda, provided they are otherwise voluntary, are admissible to impeach. This exception has been justified by the explanation that Miranda itself is not a constitutional right, but rather just a prophylactic rule designed to protect a constitutional right. As such, it is not entitled to the same deference as a real constitutional right and may be admitted for some purposes.


Under the Federal Rules of Evidence, a defendant may be impeached by prior inconsistent statements. For statements not taken under oath, such as this one, they are admissible only to impeach and not as substantive evidence (which wouldn’t be allowed in any case here).

If Deft takes the stand and denies involvement in this robbery, the prosecutor may question him about this statement on cross-examination. He may also choose not to ask him about it first, and simply bring it out through the officer’s testimony. Provided that Deft is at some point given a chance to explain or deny the statement, even if the opportunity is subsequent to the evidence being admitted, the prosecutor may introduce extrinsic evidence of the confession.