February 2008
Question #1
Criminal
Amory and Barbara, 9th graders, are at the Mall one evening. They find a set of keys with a remote car door opener. The key chain has a Mercedes emblem. Amory pockets the keys, and after walking around the Mall for thirty more minutes, calls his twenty-one-year-old brother, Charles, for a ride home.
When Charles picks them up, they show him the key chain. He says, “Let’s see which car this opens.” Charles begins to drive through the parking lot, with Amory pointing the door opener out the car window and pressing the “Open” button at every Mercedes. They pass a Mall security vehicle while Amory is pointing the door opener out the window. After the cars pass, Barbara becomes worried and demands to get out of the car. Charles stops the car, and Barbara runs back to the Mall.
Amory’s operation of the door opener causes the lights to flash on a 2007 Mercedes. Charles immediately stops the car, and he and Amory jump out and approach the Mercedes. The vehicles owner, Edward, standing by his car, sees Amory and Charles coming towards him. He screams, attempts to run away but falls, knocking himself unconscious. Amory and Charles run back to the car, see that Officer Doug has seen Edward fall, and flee the Mall parking lot. Regaining consciousness, Edward uses his cell phone to call the local police department and give a partial description of Charles’ automobile and its occupants.
Amory and Charles immediately drive to their family’s home and park the automobile. Subsequently, their mother, Frances, takes this automobile to pick up dinner. She drives past Lt. Gail, who has heard the description of the incident at the Mall over her police radio. Lt. Gail observes the car drive by and pulls Frances over. She asks Frances if she has been at the Mall that evening, which Frances denies. Using her flashlight to illuminate the interior of the car, Lt. Gail sees the key chain on the passenger seat. Lt. Gail orders Frances out of the car and searches its interior. In Frances’ pocketbook, Lt. Gail finds a vial of cocaine. Frances is arrested and in the course of her interrogation, she states her sons had gone to the Mall earlier that evening in that automobile. Lt. Gail then proceeds to the family home and knocks on the front door. Although no one responds, Lt. Gail can hear movement behind the door. She enters through an unlocked door, sees both Amory and Charles, and arrests them.
You are a clerk at the county prosecutor’s office. Your supervisor has asked you to prepare a memorandum on all possible charges that can be brought concerning the above incident as well as any defenses that can be asserted by any defendant.
Prepare the Memorandum
Sample Answer #1 – Criminal
MEMORANDUM
TO: Supervisor
FROM: Clerk
RE: Possible Charges
As per your request, I have prepared a memorandum outlining the possible charges and defenses regarding the present incident. My findings are as follows.
(1) Frances may be charged with possession of cocaine, and should not be convicted.
Possession of cocaine requires that the individual be in possession of cocaine without a valid excuse.
Here, the officer found possession in Frances’ purse that was in a car she was driving. As Such, there is little doubt that the cocaine was in her control at the time, and she has met the requirements for a conviction for possession of cocaine.
The primary defense Frances may raise is that the cocaine evidence is not admissible. Such a defense is likely to fail, however. The exclusionary rule prevents the admission of evidence obtained by a government officer in violation of the warrant requirement without an exception the rule. Here, the officer pulled Frances over. To pull a vehicle over, an officer must have reasonable suspicion that a crime has occurred. As the officer had been informed over the radio that a crime had occurred involving this vehicle, and the information was obtained from the victim of the crime, probable cause likely exists. Frances may argue that the description was only a partial one and that she was a female old enough to have a 21 year old child -- not two young boys – and thus that she did not sufficiently meet the description the officer had obtained. The standard here is merely a reasonable suspicion, however, and thus the description from the victim should be sufficient for stopping the car. The goal of limiting the risk of the suspects escaping or causing more harm adds further credibility to the stop.
Once the vehicle has been validly stopped, the officer was permitted to look inside the vehicle under the plain view doctrine, and any evidence viewed by the officer would be admissible. Here, the officer saw the key chain on the passenger seat in plain view, confirming that this was the vehicle used in the earliest incident. This confirmation would give the officer probably cause to arrest the drive (who was currently in possession of the keychain as the drive and sole occupant of the vehicle). Here, however an arrest did not occur and there was no valid reason for the officer to search the interior of the car. The item in question (the keychain) was already located, and the alleged assailants could not have been hiding in the purse. As such, the officer would have had probable cause to arrest Frances, but did not do so, and thus no exception applies permitting him to search the passenger compartment of the vehicle.
Frances in unlikely to be convicted of possession of cocaine.
(2) Amory and Barbara may be charged with larceny of the key chain, and this charge may succeed.
Larceny is the unauthorized taking and carrying away of the property of another with the intent to permanently deprive the rightful owner of possession.
Here, Amory and Barbara found the keys with the remote door opener in the mall. They then picked up the opener, walked around with the opener for 30 minutes, and then called for a ride home. Their actions of not turning the key chain in to mall security for 30 minutes and then calling for a ride home shows that they intended to keep the key chain and take it home with them. As such, they have committed larceny.
Although the two may allege that they are minors and thus cannot be charged with larceny, as ninth graders they would likely be old enough to be charged with this crime despite their under-18 status unless there were some unusual factors regarding their intelligence. IF the two are over 18, such an argument would have no merit.
(2) Charles and Amory may be charged with attempted larceny of the vehicle, but this charge is likely to fail.
Larceny is the unauthorized taking and carrying away the property of another with the intent to permanently deprive the rightful owner of possession. An attempted larceny requires that the individual in question act with the specific intent to commit the crime.
Here, Charles and Amory have driven around the parking lot in an attempt to
have the remote signal which vehicle it operates. Although we can argue that his
driving by a security vehicle without turning the remote over (or asking what
the appropriate action is) implies an intent to keep the remote, Charles
remained in the parking lot until he found the correct vehicle and approached
the vehicle despite the fact that there was a man standing right next to it (who
ultimately turned out to be the owner). Therefore, the facts would suggest that
Charles actually intended to return the remote to its rightful owner, drove
around until he found the car, and then approached the owner who was next to the
vehicle to turn over the keys. His immediately stopping and stepping out of his
vehicle
(without parking it ) further suggests that his actions were being taken in the
open and that he intended to return to his car shortly (and thus not take the
car away). Being that attempt of a crime requires proving that the defendant
actually intended to carry out the crime, we are unlikely to succeed with this
charge. As such, there is sufficient evidence to charge Charles with attempted
larceny, but such charges are unlikely to result in a conviction.
Insofar as Amory is concerned, his youth will provide one defense, and his following Charles’ actions in finding the owner and returning the keychain will provide him with a similar defense to Charles on this suit.
In the event that charges are brought against Charles and Amory, their warrantless arrest at the home will likely be found to be permissible and will not serve as a defense. Although arrests in a suspect’s home normally require a warrant, the police may avoid this requirement may be waived when the police know the location of a suspect and knock and announce their presence before entering. Here, Frances has told the police the location of Charles and Amory, and that they are in their home. We will be able to argue that the police’s actions were appropriate, as they immediately went to the home to arrest these two suspects of a violent crime (assault). They knocked and announced their presence as required, and only entered when they heard noise in the home. As such, the arrest was appropriate with the knowledge of the suspect’s presence, the knock and announce, and the hearing of activity. Therefore, the arrest will not serve as a defense to any charges and will not serve to preclude any evidence for any charges.
(3) Assault may be charged against Charles and Amory, but it is likely to fail.
Assault is an intentional act causing reasonable apprehension of immediate harm in a victim.
Here, Amory and Charles approached the mercedes owned by Edward and Edward (who was next to the vehicle). Seeing the two approaching, Edward screamed and attempted to run away, at which point he fell. Amory is a ninth grader, and Charles is 21.
Clearly, Amory and Charles have engaged in an intentional act (walking towards the mercedes) which resulted in Edward being placed in fear (exhibited by his screaming and running). The key is whether Edward was reasonably in fear of Amory and Charles. There is no evidence that Amory and Charles engaged in any threatening action other than walking towards Edward; neither was armed. The prior circumstances also do not imply that Edward thought they were armed and attempting to steal his car; the facts state that the keys were found, not forcibly taken off of Edward. Although Edward may argue that there were two individuals approaching him (and he was alone), this would cause fear in a reasonable person, the credibility of this argument is limited by the fact that Amory is only a 9th grader and Edward was in a public place (with a security guard nearby).
As such, the conduct by Amory and Charles was not sufficient to place a reasonable person in fear of an immediate battery, and thus assault is unlikely to succeed against them.
(4) Conspiracy to commit larceny charge against Barbara. A conspiracy charge is likely to fail.
Conspiracy requires that two parties agree to commit a crime, and that the charged party actually intend to commit the crime. Some jurisdictions also require that the party also take an actual step toward completion of the crime.
Here, Barbara was in the car with Amory and Charles while Charles was driving and Amory was attempting to identify which car the keys belonged to. Barbara’s mere presence in the car, without more, will not suffice to be considered an agreement to commit the crime. Even if this was the case, Barbara would be innocent in jurisdictions requiring an action to complete conspiracy, because Barbara committed no actions in furtherance of the conspiracy once it was formed. Such a view is supported by Barbara’s exiting he vehicle shortly after seeing authorities and realizing that Charles failed to stop the vehicle to inform the authorities of his finding of the keys, and thus his true intentions.
As such Barbara is unlikely to be convicted of conspiracy.
Sample Answer #2 – Criminal
MEMORANDUM
TO: Supervisor
FROM: Clerk
Re: Charges
Amory & Charles
The possible charges/defenses with respect to Amory & Charles are very similar and will be discussed together. First, although there is a rebuttable presumption of no criminal liability when a suspect is under 14, Amory is taken to be 14 or 15, and Charles is 21, so neither could be construed as a child for liability purposes.
First, Amory found the keys in the mall and put them in his pocket. Larceny is a specific intent crime which requires a taking that is wrongful from another of the other’s property with intent to deprive the owner of possession at the time of taking. There is no evidence that Amory did not intend to return the keys to the “lost and found” or to Edward, the owner. Further, during the search for the Mercedes, there is no evidence to prove that Amory ever had the intent to steal the car. He may have assumed finding the car would find the owner. Therefore, there is no evidence of intent to deprive Edward of the keys, or more importantly, the car. Amory can thus not be guilty of larceny. Likewise, that Amory fled after Edward fell is not evidence of guilt, but only that he may have been scared. Because there is no intent for larceny, there is also no intent to find Amory guilty of attempted larceny. Attempt requires the taking of a substantial step in furtherance of a crime. Since there is no evidence to find guilt of larceny, there is likewise no evidence to find guilt of attempted larceny.
All of the above is also applicable to Charles, since there is no evidence that purports to show that Charles had any intent to attempt larceny or commit larceny. Therefore, Charles may not be charged with either crime.
Charles’ statement “Let’s see which car this opens” is further not evidence
of conspiracy. As discussed above, there is no evidence that either Charles or
Amory had the intent to agree to commit an unlawful act.
Conspiracy requires intent to agree, agreement, and intention to commit an
unlawful acts and in a majority of jurisdictions, an overt act. Again, neither
Charles nor
Amory has been shown to possess the intent to commit larceny. Therefore, neither
can be convicted of found guilty of conspiracy.
When Lt. Gail arrives at the house of Charles and Amory, she arrested both illegally. Both Charles and Amory had a 4th Amendment right against illegal search and seizure. Such a right is guaranteed when a person is subject to government action and has a reasonable expectation of privacy. Certainly Charles and Amory had an expectation of privacy in their own home. Therefore, any arrest, especially of a person in his home, requires a warrant, unless an exception applies. Here, there is no exception and therefore the arrest of Charles and Amory was illegal.
Although the government may assert that it had consent to search the house from Frances, the presumed owner, who was presumably arrested and in Gail’s car, there is no evidence of any such consent.
Barbara
Barbara is likewise presumed to be 14 or 15 and so no defense applies with regard to her stating that she is not an adult.
Much of the analysis with respect to Amory applies to Barbara, of course only to the conduct with which Barbara was concerned.
There is no evidence of any intent to deprive Edward of the keys or his car on the part of Barbara. Therefore she is not guilty of larceny or attempted larceny. Further, any potential conspiracy with respect to Charles’s statement occurred after Barbara had been “picked up”. Although there is not guilt of conspiracy to Charles or Amory (which means Barbara is not guilty either), Barbara committed no overt act. Further, she at least attempted to withdraw from any potential situation by getting out of the care and leaving. Therefore, there is no criminal liability on Barbara for anything.
Edward
Edward may try to assert that he was assaulted by Charles and Amory, which requires threat of an immediate battery. Although Edward fell and hurt himself, there is no evidence of a specific intent of Charles or Amory to commit a battery, which is a harmful or offensive touching and contact with the person. Therefore, Edward would not prevail on an assault charge.
Frances
Frances’s car was stopped legally because there was a reasonable suspicion that it had been involved in a crime. However, if Gail heard a “description of the incident”, she also heard Edward’s description of the “occupants” of the vehicle as well. This may serve to clear Frances of any reasonable suspicion since she was clearly not her 2 sons.
However, when Gail saw the keys in plain view, she was lawfully allowed to take Frances into custody.
The search of Frances’ pocket book, which was incident to a lawful arrest, was lawful because Gail was allowed to search the wingspan of Gail which presumably included her pocket book. Frances would try to assert that because the keys were confiscated, that Gail had no right to look in her pocketbook because there was no evidence for Gail to search for. However, Frances will likely lose because Gail may conduct a search incident to a legal arrest for weapons. The cocaine is thus admissible in Court.
Because Frances was in custody and being interrogated, she was lawfully due Miranda warnings. Because she was not given them, her statement that her sons went to the mall is likely inadmissible. However, because the fruit of the Poisonous Tree doctrine does not apply to Miranda violations, any potential illegality of Gail’s driving to the house and finding Frances’s sons will not hinge on the lack of Miranda. I refer any potential violations of the apprehension of the sons to that separate discussion above.