Crim Law and Pro Flashcards
Do police checkpoints to obtain information about a recent crime violate the Fourth Amendment?
A police checkpoint set up to obtain information from motorists about a recent crime does not violate the Fourth Amendment because the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicle.
Shop owner froze and didn’t help a shopper on an escalator. The shopper got injured. Will the shopper win the lawsuit?
Yes.
Although in general individuals do not have a duty to rescue those in need, an individual may have such a duty when there exists a special relationship with the potential victim. Such a relationship exists when the victim is a business invitee on the premises. In such a case, the business and its agents have a duty to intervene and use reasonable care to aid and assist the invitee. When the owner failed to intervene to aid the shopper, he breached his duty to her.
Is a person who supplies material to others knowing that they intend to commit a crime is criminally responsible for that crime?
As to conspiracy, the cases have generally held that mere knowledge of the criminal purpose of the others is not enough; the supplier must share in the criminal intent in some manner. The intent cannot be established by mere knowledge of the criminal scheme; something more is needed, like supplying goods or services that have no legitimate use or charging inflated prices for the goods or services.
i.e. Since the retailer charged the two men 50% above the retail value of the equipment, his intent that the crime be committed can be inferred.
As to accomplice liability, as an accessory before the fact, the same kind of “mere knowledge versus intent” problem exists. Most decisions have held that a defendant who assists others who engage in a crime must do more than merely act with knowledge of the criminal purpose, the defendant must associate himself somehow with the venture in a way that demonstrates he wishes it to succeed.
i.e. Again, the retailer’s intent that the criminal scheme succeed can be inferred by his charging a premium for the equipment.
Common law arson…
…is the burning of the dwelling house of another with malice.
Willful and wanton misconduct (defined as creating a plain and strong likelihood that a protected structure will be burned) is a form of malice, and slight burning, such as charring, is sufficient to constitute arson.
Depraved-heart murder…
…is an unintentional killing resulting from conduct involving a wanton indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury, absent any defense negating defendant’s awareness of the risk.
Unlike involuntary manslaughter, depraved-heart murder involves extremely negligent conduct (or recklessness) that is of a higher degree than gross or criminal negligence (which provides the standard for involuntary manslaughter).
i.e.
The defendant’s act of blindly shooting toward a car he knew to be filled with passengers exhibits extreme negligence or recklessness of a higher degree than gross or criminal negligence, making depraved-heart murder the most appropriate response.
Felony murder is…
…an unintentional killing proximately caused during the commission or attempted commission of a “serious or inherently dangerous” felony (“BARRK”–burglary, arson, robbery, rape, kidnapping).
In order for a person to be guilty of felony murder, the underlying felony must be malum in se–that is, an inherently dangerous felony.
Involuntary manslaughter is …
…an unintentional killing resulting without malice aforethought caused either by criminal negligence or
during the commission or attempted commission of an unlawful act.
“Criminal negligence” requires that a defendant’s conduct create a high degree of risk of death or serious injury beyond the standard of ordinary tortious negligence.
Intent-to-inflict-serious-bodily-injury murder is…
…an unintentional killing proximately resulting from an act intended to cause serious bodily injury.
Absent justification, excuse or mitigation, the intent to cause great bodily injury satisfies the malice element for general-intent murder.
Suitcase known to contain cocaine (police had search warrant) took by the suspect from the airport, put in the trunk. Suspect’s car stopped, suspect arrested, put in the police vehicle.
Can police search the car?
In this situation, the police had probable cause to search the suitcase, not the car. While they could seize the suitcase pursuant to the search warrant, arrest the occupants, and search them incident to a lawful arrest, they cannot conduct a search of the car beyond the wingspan of the occupants. This is a safety issue; therefore, once the occupants are safely secured in the officer’s car, little argument can be made that officer safety is in issue. While a weapon (or fruits of the crime) could be in the glovebox, the papers found were not weapons (and not immediately recognizable as fruits), and therefore, they were not subject to confiscation.
Transactional immunity
Transactional immunity prevents a witness from being prosecuted for any crime referred to in the testimony.
At common law and under modern
theft statutes, the crime of receiving stolen property requires…
(i) receiving possession and control
(ii) of “stolen” personal property
(iii) known to have been obtained in a manner constituting a
criminal offense
(iv) by another person,
(v) with the intent to permanently deprive the owner of
his interest in the property.
In a “sting” operation, an attendant circumstance of the offense is that the property must still be “stolen” at the time it is received by the defendant. Once stolen property is recovered by the owner or by the police on the owner’s behalf, it loses its “stolen” status. Even if the owner consents to the property’s use for the purpose of trapping a suspected recipient of stolen goods, the property cannot be the basis of a receipt of stolen property charge because it is no longer “stolen.”
Mental state for CRIMINAL battery
Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.
The mental state necessary for criminal battery is _general intent, which is satisfied by intentional, reckless, or
criminally negligent conduct._
It is not a defense to obtaining money by false pretenses…
that the victim unreasonably relied on the defendant’s misrepresentation. The test for reliance is a subjective one.
***
false pretenses requires reliance by the victim to be actionable i.e. D would be absolved of the crime of FP if V was an undercover officer who didn’t believe D
A homeowner was trimming his sidewalkbordering
hedge when a wasp began attacking
him. The homeowner attempted to hit the wasp.
During one of his swats, the homeowner struck
a jogger in the face. The jogger, reacting to the
unexpected blow to his head, reached into his
pocket and pulled out a knife. The homeowner
tried to shield himself by raising his arms in
front of his body, but the jogger was able to stab
the homeowner, seriously injuring him.
If the jogger is prosecuted for aggravated
battery, is it likely that he will be found guilty?
(A) No, because he believed the homeowner
was attacking him.
(B) No, because he was adequately provoked by
the homeowner.
(C) Yes, because he used a deadly weapon.
(C) The jogger will likely be found guilty of aggravated battery. The jogger’s act constituted an unlawful application of force to the person of another and is, thus, a battery. Use of a deadly
weapon in the commission of a battery elevates the crime to aggravated battery.
(A) is wrong because a person must reasonably believe that he is faced with imminent death or great bodily harm in order to use deadly force. The accidental blow struck by the homeowner would not rise to that level. (B) is incorrect. Although adequate provocation (e.g., being subjected to a serious battery or a threat of deadly force) is enough to reduce a killing to voluntary manslaughter, there is no rule justifying a battery based on adequate provocation. The fact that the jogger was unexpectedly struck by the homeowner does not justify his battery of the homeowner.
A gunman came up behind a pedestrian,
stuck a gun in his back, and said, “Your money
or your life!” The pedestrian turned around,
saw the gun, and fainted. The gunman lifted
the pedestrian’s wallet and stuck it in the back
pocket of his pants. The gunman took off at
a trot, but after he had traveled about 10 feet
from the pedestrian, the wallet slipped out of
the gunman’s pocket and fell to the ground. The
gunman did not realize this until he arrived
home and found the wallet missing. When the
pedestrian revived, he found the wallet with all
its contents intact. He reported the crime to the
police and identified a mugshot of the gunman,
who was subsequently arrested.
Of which crime should the gunman be
convicted?
The gunman should be convicted of robbery but cannot also be convicted of larceny because larceny is a lesser included offense of robbery.
Robbery consists of a taking of the personal
property of another from the other’s person or presence, by force or intimidation, with the intent to permanently deprive him of it.
The gunman took the pedestrian’s personal property (his wallet) from his person at gunpoint, intending to permanently deprive him of his property. Although the pedestrian fainted, this taking was accomplished by force, because the gunman’s threat of shooting the pedestrian precipitated his fainting. Thus, the gunman can be convicted of robbery.
Larceny consists of a taking and carrying away of the tangible personal property of another by trespass, with intent to permanently deprive the person of his interest in the property.
Although the gunman carried the pedestrian’s wallet only 10 feet before it slipped out of his pocket, this is a sufficient carrying away for purposes of larceny. Thus, the gunman could be convicted of larceny.
However, one may not be convicted of both a greater offense and a lesser included offense.
A lesser included offense is one that consists entirely of some, but not all, elements of the greater crime. Larceny is a lesser included offense of robbery because larceny consists of all the elements of robbery except for force or intimidation. Indeed, robbery can be considered an aggravated form
of larceny, in which the taking is accomplished by force or threat of force. Thus, the gunman
cannot be convicted of both larceny and robbery.
The defendant rented a room for two nights
at a motel. The room was equipped with a large
television set. The defendant decided to steal the
set, pawn it, and keep the proceeds. To conceal
his identity as the thief, he contrived to make
his room look as if it had been burglarized.
However, he was traced through the pawnbroker
and arrested.
On these facts, the defendant is guilty of what
crime?
(A) Embezzlement.
(B) False pretenses.
(C) Larceny.
(D) Larceny by trick.
(C) The defendant is guilty of larceny because, while having mere custody of the television set, he carried it away from the motel intending to permanently deprive the motel owner of his interest in the set.
Larceny consists of the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Property must be taken from someone who has a possessory interest superior to that of the defendant. If the defendant has custody of the property, rather than possession, his misappropriation of the property is larceny. Possession involves a much greater scope of
authority to deal with the property than does custody. Here, the defendant only had the authority to use the television set for viewing purposes while he was staying at the motel. Thus, the defendant had only enough authority to deal with the set as to indicate that he had custody of it rather than possession. Consequently, the motel owner had a possessory interest in the set superior to that of the defendant. The defendant took the set by trespass (without the consent of the owner)
and carried it away with the intent to permanently deprive the owner of his interest in the set. Thus, the defendant is guilty of larceny.
(D) is incorrect because larceny by trick occurs when the
victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation. Here, the motel owner never consented to give the defendant possession of the television set, through misrepresentation or otherwise. Instead, the defendant
simply took the set without the consent of the owner. Therefore, this is not larceny by trick.
(B)
is incorrect for a similar reason. The offense of false pretenses consists of obtaining title to the property of another by an intentional or knowing false statement of past or existing fact, with intent to defraud the other. The defendant made no misrepresentations to the motel owner, nor did the owner convey title to the television set to the defendant. Thus, the defendant is not guilty of false pretenses.
(A) is incorrect because embezzlement requires the fraudulent conversion of property of another by a person in lawful possession of that property. The defendant never had
lawful possession of the television set. The taking of the set without the consent of the motel owner was trespassory. Thus, the defendant has not committed embezzlement.
A husband’s and wife’s Social Security retirement
benefits came in a single check payable to
both each month, two-thirds of which was the
husband’s retirement payment and one-third
of which was the wife’s spousal benefit. Each
month when the check arrived in the mail, the
wife would take it to their bank and cash it,
receiving the entire proceeds in cash, which
she would use for her and her husband’s living
expenses. After the husband died, the Social
Security check continued to come in the same
amount and made payable to both the husband
and wife. The wife knew that she was no longer
entitled to her husband’s benefit, but that her
own spousal benefit would increase greatly
as a widow’s benefit. She also knew that she
would receive a one-time “death benefit.” She
concluded that the continued receipt of the
combined check reflected these increases, so
for several months after her husband’s death she
continued to cash the combined check, signing
both her and her husband’s names when she
negotiated it. When the federal government
eventually processed the notification of the
husband’s death provided by the funeral home,
it discovered that the wife had negotiated checks
containing $2,000 in benefits to which she was
not entitled.
Is she guilty of obtaining the payments by
false pretenses?
The wife is not guilty because she lacked the intent to defraud the government.
The crime of false pretenses consists of obtaining title to the property of another by an intentional false statement of past or existing fact, with intent to defraud the other. This is a crime requiring specific intent, i.e., intent to defraud.
The wife believed that she was entitled to the total amount of the combined check, because she thought that the amount of the check equaled what she would have received
as a death benefit and an increased spousal benefit. Because the wife believed that she was simply receiving money to which she was entitled, rather than money actually belonging to the government, she lacked the intent to defraud the government. Absent the requisite specific intent, the
wife is not guilty of obtaining money by false pretenses.
During the nighttime, a woman broke into the
house of the victim with the intention of stealing
his diamond ring. When she could not find the
diamond ring, she became angry, lit a match to
a newspaper and threw it on the victim’s bed,
setting the mattress on fire. The flames destroyed
the bed and a portion of the floor under the bed.
In a common law jurisdiction, of which crime
or crimes is the woman guilty?
The woman is guilty of arson and burglary.
She is guilty of arson because she deliberately set a
fire that, in addition to burning the mattress, also burned part of the dwelling house of another, namely the floor.
She is also guilty of burglary because she broke and entered into the dwelling house of another during the nighttime to commit a felony.
The fact that she was not successful in
committing the crime she intended or that she in fact committed another felony is irrelevant to her guilt for burglary; it is the intent to commit a felony at the time of the breaking and entering which is critical.
An intoxicated airline passenger collecting
his bags after passing through security grabbed
a garment bag from its owner because he
mistakenly thought it was his own. The owner
of the garment bag tried to take it back from
the passenger. During the tug of war over the
garment bag, the passenger knocked the owner
to the floor, took the garment bag, and ran to
his gate. The passenger was later arrested and
charged with robbery.
Should the passenger be found guilty?
The passenger should be acquitted.
Robbery is larceny from a person by violence or intimidation.
Larceny requires a specific intent to take personal property from the possession of another with intent to permanently deprive the other of his possessory interest. Because the passenger thought that the property belonged to him, his _mistake of fact is a valid defense to the crimes of larceny
and robbery._This is because the mistake negates the existence of a mental state (specific intent
to steal) essential to the charged crime.
Robbery is larceny by either violence or intimidation. Knocking the owner to the floor constitutes the necessary violence, whether or not the passenger used intimidation. Even though voluntary intoxication may be a defense to a specific intent crime (in those circumstances where the intoxication negates the specific intent), the better answer is (D), because the passenger’s mistake of fact is a defense to the specific intent
crime charged since he did not have the specific intent to steal.
A conviction will not necessarily be overturned merely because improperly obtained evidence was admitted at trial.
Rather, the harmless error test applies, so a conviction can be upheld if the conviction would have resulted despite the admission of improperly obtained evidence. On appeal, the government bears the burden of showing beyond
a reasonable doubt that the admission was harmless.
i.e.
In the case, there was plenty of other evidence—a security camera recording, eyewitnesses, and physical evidence recovered from the crime scene—that ties the defendant to the crime. Hence, the burden of proving harmless error
beyond a reasonable doubt would be met under these facts.
The defendant was charged with murder
and tried in state court. At trial, he introduced
evidence regarding his state of mind at the time
of the homicide, including testimony from a
psychiatrist. At the conclusion of the case, the
court instructed the jury as follows:
There are two kinds of homicide in our
state: murder and manslaughter. The common
elements of both are that the homicide be
unlawful—i.e., neither justifiable nor excusable—
and that it be intentional. Malice aforethought
is an indispensable element of the
crime of murder. However, if the prosecution
can establish that the killing was both intentional
and unlawful, malice aforethought may
be presumed unless the defendant proves by
a preponderance of the evidence that he acted
under extreme emotional disturbance for which
there was reasonable explanation or excuse, in
which case he shall be liable only for voluntary
manslaughter, because extreme emotional
disturbance is inconsistent with, and negates the
existence of, malice aforethought.
The judge further instructed the jury that it
could return an acquittal by reason of insanity
“if the defendant established by clear and
convincing evidence that he was unable to
control his actions or conform his conduct to
the law.” The jury found the defendant guilty of
murder. The defendant appealed, claiming that
his constitutional rights were violated by the
court’s instructions as to homicide and by the
requirement that he prove insanity by clear and
convincing evidence.
Were the defendant’s rights violated?
The defendant’s rights were violated by the homicide instructions.
The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution must bear the burden of proving all of the elements of the crime charged. Thus, the Supreme Court has held that if “malice aforethought” is an element of murder, the state may not require the defendant to prove that he committed the homicide in the heat of passion, because heat of passion negates malice and in effect requires the defendant to disprove the element of malice aforethought. [Mullaney v. Wilbur (1975)]
Here, the judge’s instructions create the same result with “extreme emotional disturbance.” By instructing the jury that it may presume the existence of malice aforethought from proof of an unlawful killing, and that the defendant bears the burden of showing that he did not act with malice, the judge improperly imposed on this particular defendant the burden to disprove an element of murder. Thus, (B) and (D) are incorrect.
Insanity is an affirmative defense for which it is constitutional to impose the burden of proof on the defendant.
Although many jurisdictions require a defendant to prove his insanity by a preponderance of the evidence, federal courts require proof by clear and convincing evidence, and one Supreme Court case upheld requiring a defendant to prove insanity beyond a reasonable doubt. [See Leland v. Oregon (1952)]
The Due Process Clause has been interpreted as requiring the prosecution to prove each element of the crime charged beyond a reasonable doubt. The “malice aforethought” element of murder has traditionally been defined as ….
…encompassing the absence of provocation engendering a passion. Putting the burden of persuasion as to the existence of provocation
and passion on the defendant relieves the prosecution of its burden as to their absence.
The defendant was arrested and charged with
possession of illegal narcotics and placed on trial
in a municipal court. The defendant demanded
a jury trial, which was duly granted. After the
jury had been sworn, selected, and impaneled,
the defendant’s attorney filed a motion with the
presiding judge praying for a dismissal based on
a technical error in the bill of information drawn
up by the city prosecutor. No witnesses had yet
been sworn at the time the attorney filed the
motion. The judge ordered an immediate recess
while he considered the motion. Two days later
he ruled in favor of the defendant and dismissed
the charges against him.
A week later a state grand jury indicted the
defendant for possession of illegal narcotics with
intention to distribute same. The charges arose
out of the same incident and arrest described
above. The defendant was ordered to appear
in the superior court of the state to answer the
charges. The defendant’s attorney immediately
filed a motion on the defendant’s behalf asserting
that it would be unconstitutional to retry the
defendant in the state court.
The best argument against granting the
motion is which of the following?
(A) The city and the state are separate sovereigns.
(B) The state charge requires the proving of a
fact not required by the municipal charge.
(C) The defendant’s trial in municipal court had
not yet reached the stage where jeopardy
attaches.
(D) The dismissal of the case in municipal
court was based on a technicality that did
not go to the merits of the case.
(D) The state’s best argument is that the defendant procured dismissal of the original trial on a technicality.
The Fifth Amendment right to be free of double jeopardy for the same offense generally requires that, once jeopardy attaches in the first prosecution, the defendant may not be retried for the same offense.
Under certain circumstances, however, a defendant can be retried even if jeopardy has attached. One such circumstance is that a trial may be discontinued and the defendant reprosecuted for the same offense when the termination occurs at the behest of the defendant on any grounds not constituting an acquittal on the merits.
Double jeopardy does not bar two trials, but only a retrial after a determination on the merits.
Here, the municipal charge against
the defendant was dismissed, and the trial terminated, at the request of the defendant on the basis of a technical error in the information. This was not an acquittal on the merits. Thus, there is no violation of the prohibition of double jeopardy presented by the current state prosecution of the defendant.
Regarding (A), it is true that the constitutional prohibition against double jeopardy does
not apply to trials by separate sovereigns. A person may be tried for the same conduct by both a state and the federal government, or by two states. However, a state and its municipalities are not deemed to be separate sovereigns. Thus, the defendant may not be tried for the same conduct by the city and the state. (B) is incorrect. The fact that the state charge requires proof of a fact not required by the municipal charge does not satisfy the test for determining that the “same offense” is not involved for purposes of double jeopardy. At best, it indicates only that the municipal charge is a lesser included offense of the state charge. A lesser included offense is one that consists entirely of some, but not all, elements of a greater crime. Attachment of jeopardy for a lesser included offense usually bars retrial for the greater offense. Here, the municipal charge consists entirely of all the elements of the state charge, except for the element of intent to distribute the illegal narcotics. Therefore, the municipal charge is a lesser included offense of the state charge.
This fact would, if anything, provide an argument in support of the position that the trial in state
court constitutes double jeopardy. Thus, (B) does not present an argument against granting the
motion filed on behalf of the defendant.
(C) is incorrect because it misstates the point at which jeopardy attaches. Jeopardy attaches in a jury trial at the impaneling and swearing of the jury, and in a bench trial when the first witness is sworn. This question deals with a jury trial, and we are told that the jury has been sworn, selected, and impaneled. Thus, jeopardy has attached, despite the fact that no witness has been sworn.
In accordance with the contractual view of plea bargains, a defendant who agrees to a plea bargain has the right to have that bargain kept.
If the prosecution
does not keep the bargain,…
….the court will decide whether the circumstances require specific performance of the plea agreement or whether the defendant should be granted an opportunity to withdraw his guilty plea.
***
Defendant’s claim of innocence does not prevent the court from accepting his guilty plea. Before accepting a guilty plea, the court must find that the plea was voluntary and intelligent. However, admission of guilt is not a constitutional requisite to imposition of a criminal penalty. When a defendant pleads guilty despite protesting his innocence, the plea may still be seen as an intelligent choice by the defendant, and withdrawal of the plea will not be permitted when there is other strong evidence of guilt in the record.
A defendant who was indigent was charged
with a crime. At a hearing, the defendant told the judge that he wanted to plead not guilty and that he wished to represent himself. The defendant
told the judge that paying for an attorney
would be difficult, and that he still wished to
defend himself. The judge believed that the
defendant was competent to defend himself, but
nevertheless appointed an attorney with criminal
defense experience to defend him. The defendant fully cooperated with the attorney, who did a highly competent job, but the evidence heavily favored the state. The defendant was convicted. Two weeks later, the defendant received a bill for $500 for legal services. Result of appeal?
The appellate court would likely reverse both the conviction and the imposition of fees. Although
a waiver of the right to counsel will be carefully scrutinized to ensure that the defendant has
a rational and factual understanding of the proceeding against him, a defendant has a right to waive counsel and represent himself as long as the waiver is knowing and voluntary and he is competent to proceed pro se. Where the state provides counsel in cases of indigence, it may then seek reimbursement from a convicted defendant who subsequently becomes able to pay.
Here, the judge thought that the defendant was competent to represent himself. Therefore, his waiver of counsel should have been honored. Violation of the defendant’s right to represent himself will result in a reversal of his conviction. Although, as stated above, the state may recoup costs of appointed counsel from indigents who become able to pay, the state cannot recover from the defendant because the attorney was appointed against the defendant’s will and in violation of his right to represent himself. Had effect been given to the defendant’s right to represent himself, there would have been no attorneys’ fees to be assessed against him.
A guilty plea may be attacked after sentencing in certain circumstances;
e.g.,
if there was ineffective assistance of counsel. Ineffective assistance of counsel undercuts the
assumption of an intelligent choice among the defendant’s alternatives on the advice of counsel.
***
Any admissions made during plea negotiations are inadmissible at trial. The fact that the defendant was not Mirandized before
such statements would not be a basis for overturning the plea agreement.
CL Rape is…
… the unlawful carnal knowledge of a woman by a man not her husband, without her effective consent
A woman called the police to report that
she had been assaulted. She gave the police a
detailed description of her attacker, and they
picked up a man who matched the description
who was found near the site of the alleged
attack. The police took the man to the police
station and read him his Miranda warnings. The
man asked for a public defender to be appointed.
Before the public defender arrived, the woman
came to the police station and was told there
would be a lineup as soon as the suspect’s lawyer
arrived. On the way to the viewing room, the
woman passed a holding cell where the man was
being held. She pointed at him and said loudly,
“That’s the man who attacked me!” The man did
not respond in any way. The woman later picked
the man out of a lineup.
At the trial, if the prosecutor wishes to introduce
evidence that the man said nothing when
the woman confronted him, would such evidence
be admissible?
(B) Yes, because the man had been read his
Miranda warnings and knew that any
behavior could be used against him.
(C) No, because the man’s right against selfincrimination
would be violated if he were
required to speak.
(C) Introduction of the proffered evidence would in effect penalize the man for exercising his right
to be free from compulsory self-incrimination.
Miranda warnings are given to safeguard the
Fifth Amendment right to be free from compelled self-incrimination. Prior to interrogation, a
person in custody must be clearly informed that he has the right to remain silent and anything he
says can be used against him in court. These warnings implicitly assure that silence will carry
no penalty. Thus, a prosecutor may not comment on a defendant’s silence after the defendant is
arrested and has received the Miranda warnings. To allow the prosecutor to introduce evidence
of the man’s silence in the face of the woman’s accusation would run counter to the very purpose of the Miranda warnings, which is to allow the defendant to remain silent without fear of being prejudiced by such silence. The man was no more required to respond to the woman’s accusation than he would have been to an accusation or question coming from the police. The man’s privilege against compelled self-incrimination would be meaningless if he were required to either respond to the woman or have his failure to respond introduced against him.
(B) is wrong because it turns the Miranda warnings on their head. The warnings are to apprise the suspect that he has a right
to remain silent, and that if he chooses to say something, this statement can be used against him. The warnings do not, as (B) suggests, apprise the suspect that he must respond to questions or accusations, and that a failure to respond can be used against him. As has been explained above, the crux of the Miranda warnings is the right to remain silent, and to be free of coercion to speak at all.
Conviction of conspiracy does (not) require that all parties be tried and convicted.
does not
BUT
Acquittal of all persons with whom a person is alleged to have conspired precludes conviction of the remaining defendant.
Also, note that a state’s decision to discontinue prosecution would not be deemed to be an acquittal, and thus most likely a state’s inability to prosecute because of a co-conspirator’s
death would not be an acquittal.
Conspiracy requires:
(i) an agreement between two or more persons;
(ii) the intent to enter into an
agreement; and
(iii) the intent to achieve the objective of the agreement.
The two intent elements
indicate that conspiracy is a specific intent crime. (LACK OF INTENT = NO CRIME).
Same with attempt or solicitation.
i.e.
Because the man planned to contact the
police before his cousin could commit the crime, he never intended to achieve the criminal objective of robbing the bank.
11 Specific Intent Crimes
Students Can Always Fake A Laugh Even For Ridiculous Bar Facts
S- Solicitation
C- Conspiracy
A- Attempt
F- False Pretenses
A- Assault
L- Larceny
E- Embezzlement
F- Forgery
R- Robbery
B- Burglary
F- First Degree Premeditated Murder
Unprotected Items under the 4th Amendment
Patty Achieved A Glorious Victory Over Her Opponents
P- Paint Scrapings on the Outside of your car
A- Account records held by a bank
A- Air space: anything that can be seen below while driving in public airspace
G- Garbage left on the curb
V- Voice (the sound of your voice)
O- Odors ( most importantly from your luggage or car)
H- Handwriting (style)
O- Open Fields: anything that can be seen in or across open fields
** All have knowing to third party exposure
FELONY MURDER CRIMES
BARRK:
BURGLARY, ARSON, ROBBERY, RAPE OR KIDNAPPING
8 Exceptions to Warrant Requirement
ESCAPIST
E- Exigent Circumstances
S- Search Incident to Arrest
C- Consent
A- Automobile
P- Plain View
I- Inventory
S- Special Needs
T- Terry “Stop and Frisk”
After reading an article in a hunting magazine
detailing a state’s expanded season for the
hunting of grizzly bears, a hunter called his
nephew to see if he wanted to take a trip to the
state to hunt grizzly bears. His nephew agreed.
Unknown to the hunter and his nephew, the
article in the magazine listed an incorrect ending
date for the expanded grizzly bear hunting
season; the hunting season had expired the day
before. While still in their pickup truck driving
to a campsite in the state, the hunter and his
nephew were pulled over by a state trooper. They
volunteered that they were on their way to hunt
grizzly bears and were promptly arrested. A
state statute made hunting bears out of season a
strict liability offense.
If the hunter and his nephew are charged with
conspiracy to hunt grizzly bears out of season,
will they be acquitted?
(C) No, because hunting grizzly bears out of
season is a strict liability offense.
(D) No, because they agreed to hunt grizzly
bears on a date that was out of season.
(D) The hunter and his nephew will be convicted because they agreed to hunt grizzly bears on a
date that was out of hunting season. Conspiracy requires (i) an agreement between two or more
persons; (ii) an intent to enter into an agreement; and (iii) an intent to achieve the unlawful
objective of the agreement.
Here, the hunter and his nephew, with the intent to do so, agreed to hunt grizzly bears on a particular date when hunting was illegal. While they did not know that hunting was illegal on that date, their ignorance of the state law on that point does not negate their intent to commit the act and is not a defense. The majority rule is that the parties to a conspiracy
need not have been aware that their plan was an illegal one.While a few courts hold that the
conspirators must have known that their objective was criminal unless the crime was malum in se (“corrupt motive” doctrine), most courts reject this exception. Hence, the hunter and his nephew can be convicted of conspiracy.
(C) is incorrect because when a defendant is charged with conspiracy, even conspiracy to commit a strict liability offense, an intent to achieve the objective of the agreement must be shown.
The general rule is that a defendant
cannot avoid liability for attempt on the basis that it would have been impossible to commit
the completed crime.
It applies to cases where the defendant’s mistaken belief about the facts (i.e., factual impossibility) or about the legal relationships or circumstances prevents him from completing the crime that he intended to commit.
i.e.
The defendant’s mistake about the legal status of the goods he fenced does not constitute a defense to attempt. The legal status of the
goods, unlike the existence or nonexistence of a law proscribing the conduct, is one of the attendant circumstances; this is treated like factual impossibility by most courts. By accepting the goods he believes to be stolen, the defendant has purposely engaged in conduct that would constitute receipt of stolen goods if the circumstances were as he believed them to be; hence, he is liable for attempted receipt of stolen goods.
As a wife was organizing files on the family
computer, she discovered emails and photos
showing that her husband was having an affair
with his secretary. The wife was incensed,
so she went to a drawer where she knew her
husband kept his handgun and, assuming it
was loaded because he always told her that it
was, headed off to her husband’s office with the
intent to do away with his secretary. When the
wife arrived, she burst into the office, pulled
the gun out of her purse, and pointed it at the
secretary. However, when the wife pulled the
trigger, nothing happened, because the handgun
contained no ammunition.
The jurisdiction’s criminal code defines
assault as “(1) an attempt to commit a battery; or
(2) the intentional creation of a reasonable apprehension
in the mind of the victim of imminent
bodily harm.” The code uses the common law
definitions of homicide crimes.
Of which of the following crimes could the
wife be convicted?
(A) Assault and attempted manslaughter, but
not attempted murder.
(B) Attempted murder only.
(C) Assault and either attempted murder or
attempted manslaughter.
(D) Attempted murder or attempted
manslaughter, but not assault.
(C) The wife could be convicted of assault and either attempted murder or attempted manslaughter.
To be liable for either attempted murder or attempted manslaughter, the defendant must have acted with the intent to kill and have committed an act beyond mere preparation for the offense.
The fact that it is not possible to complete the intended offense (factual impossibility) is not a
defense to liability for attempt.
Here, the wife clearly intended to kill the secretary and did everything in her power to carry out the killing. The fact that the gun was not loaded is no defense.
(B) and (D) are wrong because the wife could also be convicted of assault. Assault is either:
(i) an attempt to commit a battery; or (ii) the intentional creation (other than by mere words) of a reasonable apprehension in the mind of the victim of imminent bodily harm.
Here, the wife has committed both types of assault: She attempted to commit a battery against the secretary and intentionally placed her in fear of imminent bodily harm. Although she could not be convicted of the first type of assault if she were also convicted of attempted murder or attempted manslaughter (because that type of assault is a lesser-included offense that merges into the greater offense), she could be convicted of the second type of assault (it does not merge because it contains elements
not encompassed by attempted murder or attempted manslaughter).
(A) is wrong because the wife could be convicted of attempted murder instead of attempted manslaughter if she cannot establish adequate provocation. An intentional killing can be reduced from murder to voluntary manslaughter if (i) there exists a provocation that would arouse sudden and intense passion in the mind of an ordinary person so as to cause her to lose self-control; (ii) the defendant in fact was provoked; (iii) there was insufficient time for the passions of a reasonable person to cool; and (iv) the defendant in fact did not cool off between the provocation and the killing. Many common law courts recognized the existence of provocation in only two instances: exposure to a threat of deadly force and discovery of one’s spouse in bed with another person. Furthermore, some provocations, such as “mere words,” were defined as inadequate provocation as a matter of law. Modern courts tend to be more reluctant to take such cases from juries and are more likely to submit to the jury the question of whether “mere words” or similar matters constitute adequate provocation. These principles apply in this case even though the wife’s liability is only for attempted murder or manslaughter rather than the completed offense. Here, the wife’s discovery of the emails and photographs might be sufficient to make it a jury question as to whether adequate provocation existed. However, the jury might still conclude that the provocation was not sufficient and find the wife liable for attempted murder rather than attempted manslaughter.
Whether impossibility of success constitutes a defense to a charge of criminal attempt depends on the type of impossibility at issue.
It is no defense to a charge of criminal attempt that it would have been impossible for the defendant to do all of those things that he intended to do, had the attendant circumstances
been as the defendant believed them to be. This is known as factual impossibility.
i.e.
A student approached a reputed drug dealer
at a pool hall to purchase marijuana, although
he knew that it was a crime to possess or smoke
marijuana. The student bought a “marijuana
cigarette,” which was in fact only an ordinary
tobacco cigarette, from the drug dealer. Had the attendant circumstances been as he
believed them to be, i.e., that the cigarette contained marijuana, he would be guilty of the substantive offense. Thus, impossibility is not a defense in this case.
A 17-year-old high school student decided
it would be great fun to scare his teacher by
playing some sort of prank on her. He told his
16-year-old friend about his desire, and the
friend, knowing the student’s propensity for
doing such stunts, encouraged him to go through
with his plan, giving him a toy rubber snake to
put in the teacher’s desk drawer. After opening
her desk drawer and having the rubber snake pop
out, the teacher jumped back and fell, injuring
her hip.
A state statute provides that “anyone who
recklessly causes bodily injury to the person of
another is guilty of battery in the third degree.”
What is the best theory for charging the friend
with a battery in the third degree?
(A) The friend is an accomplice because he
encouraged and provided assistance to the
student so that he could commit the crime.
(C) The friend is a principal and committed
acts of recklessness of his own that constituted
the crime.
(C) The best theory for charging the friend is that his own recklessness caused the bodily injury to
the person of another. It may be that the friend is not guilty of any crime, given that his actions,
and the actions of the student, may not have risen to the level of recklessness. Nonetheless, if he is charged, it will be for his own conduct in bringing about the battery, as explained below.
(A) is incorrect. An accomplice is one who (i) with the intent to assist the principal and the intent that the principal commit the crime (ii) actually aids, counsels, or encourages the principal before or during the commission of the crime. When the substantive offense has recklessness as its mens rea, most jurisdictions hold that the intent element is satisfied if (i) the accomplice intended to facilitate the commission of the crime, and (ii) acted with recklessness. The accomplice is responsible for the crimes he did or counseled and for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes are probable or foreseeable.
Here,
it is clear that the friend is an accomplice of the student for the “crime” of playing a prank on the
teacher. However, the friend lacked the intent to facilitate the commission of the crime of battery
on the teacher, and thus he probably would not be liable as an accomplice for the crime of battery.
Even if playing the prank would be a crime in the jurisdiction, to be liable as accomplice to the
subsequent battery, it would have to be shown that it was probable or foreseeable that the teacher would be battered as a result. It is doubtful whether such probability or foreseeability exists under these facts.
The defendant is charged with the burglary of
a home. Evidence presented at the defendant’s
trial indicates that he talked another person into
assisting him. The jury is instructed on burglary,
solicitation, conspiracy, and attempt.
If the defendant is found by the jury to be
guilty of burglary, which of the following is
true?
(A) He also may be found guilty of conspiracy,
but not of solicitation or attempt.
(B) He also may be found guilty of conspiracy
and solicitation, but not of attempt.
(C) He also may be found guilty of conspiracy
or solicitation but not both, and he may not
be found guilty of attempt.
(D) He also may be found guilty of solicitation
or attempt but not both, and he may not be
found guilty of conspiracy.
(A) The defendant may also be found guilty of conspiracy if he is found guilty of burglary.
One who solicits another to commit a crime cannot be convicted of both the solicitation and the completed crime.
Likewise, one who completes a crime after attempting it may not be convicted of both the attempt and the completed crime.
However, if conspirators are successful, they can be convicted of both criminal conspiracy and the crime they committed pursuant to the conspiracy (i.e., conspiracy does not merge with the completed offense).
Thus, if the defendant is found guilty
of burglary, he cannot also be convicted of either attempt or solicitation. The defendant can be
convicted of conspiracy in addition to burglary (with conspiracy liability being based on the
apparent agreement between the defendant and the other person to bring about the burglary of
the home).
A statute in the jurisdiction makes it a crime
to sell ammunition to a person under the age of
18. The courts have interpreted this statute as
creating a strict liability offense that does not
require knowledge of the age of the purchaser
and as creating vicarious liability. A 16-year-old
boy, who looked four or five years older, entered
a store and asked a clerk for a box of .22-caliber
shells. The store owner had instructed her
employees not to sell ammunition to anyone
under the age of 18 and to always ask for identification.
The clerk asked the boy his age. The
boy said he was 20. The clerk then placed a box
of shells on the counter and asked, “Anything
else?” The boy said that was all he wanted but
then discovered he did not have enough money
to pay for the shells, so the clerk put the box
back onto the shelf.
If the owner of the store is charged with
attempting to violate the statute, what would be
her best argument?
(A) It was impossible for the sale to have occurred.
(B) She had strictly instructed her employees
not to sell ammunition to minors.
(C) The boy lied about his age.
(D) The clerk did not have the mental state
needed for the crime charged.
(D) The store owner will not be convicted of an attempt to violate the statute if her employee did not have the requisite intent. Although the statute has been interpreted to create a strict liability crime, which does not require proof of criminal intent, an attempt of a strict liability crime requires proof that the defendant acted with the intent to bring about the proscribed result.
Therefore, for the store owner to be charged vicariously with attempt, her employee must have acted with the requisite intent; he must have intended to sell the ammunition to a minor. If he did not so intend, the store owner will not be convicted of attempt.
(A) is incorrect because this is a case of factual
impossibility, which is not a defense to attempt. (B) is incorrect because careful instructions will
not, in and of themselves, absolve an employer from vicarious liability. (C) is incorrect because
the strict liability elements of the underlying offense make it clear that knowledge of the age of the
purchaser is not an element of the underlying offense. Thus, the clerk (and the store owner) can
be liable for selling ammunition to a minor no matter how old the purchaser looked or how old he
claimed to be. The boy’s lie may have bearing on the clerk’s lack of intent, but this is not as direct
an answer as (D).
Larceny’s intent to permanently deprive may be found when …
… the defendant intends to use the property in such a manner as to create a substantial risk of loss
An employee of a garden supply store recently moved from an apartment to a house with a large yard, and he needed a mower. He could not afford the one he wanted, even with his employee discount, so one day at work he
took the mower from the mower department and hid it behind some crates on the loading dock. He planned to take the mower home with him that night. At the end of the day, however, the employee became afraid that he would be caught, so he returned the mower to the mower
department and went home as usual. What crime has the employee most likely committed?
(A) Larceny.
(B) Attempted larceny.
(C) Embezzlement.
(D) No crime
(A) Larceny is the taking and asportation of the personal property of another by trespass and with the intent to permanently deprive the person of his interest in the property. Here, the moving of
the mower to the loading dock constituted the taking and carrying away. Because the employee
did not have express or implied permission to move merchandise in this way, it was trespassory.
Clearly, he intended to permanently deprive the store of its interest in the mower. Thus, the larceny was complete when the employee moved the mower to the loading dock, and (B) and (D) are therefore incorrect. (C) is incorrect because to be guilty of embezzlement, the employee would have had to have been in possession of the mower when he converted it. Because the employee did not have especially broad power over the mower and it was not given to him by a third party, he merely had custody, not possession, of the mower.
A mistake of fact that negates the state of mind
requirement for specific intent crimes need not be reasonable.
Any mistake of fact, reasonable or
unreasonable, that negates specific intent would be a defense.
The mens rea required for arson is …
…malice, which is broader than the intent required for specific intent crimes.
All that malice requires is that the defendant have acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn.
***
The “burning” required for arson does not require significant damage to the building; a charring of the combustible material is sufficient.
An artist was adept at copying the paintings
of famous artists. In need of money, he made a
copy of a painting by a recently deceased artist, complete with her signature. The artist then
contacted an art collector and asked whether he would be interested in purchasing this “recovered” painting. The art collector examined the painting and, still believing it to be an original, offered the artist $1 million for it, which the artist eagerly accepted. The art collector gave the artist a check and left with the painting. The artist promptly deposited the check, which cleared several days later. At common law, the artist is guilty of:
(A) Forgery.
(B) False pretenses.
(C) Larceny by trick.
(B) The artist is guilty of false pretenses.
The offense of false pretenses consists of obtaining title to the property of another by an intentional false statement of past or existing fact, with the intent to defraud the other.
Here, with intent to defraud the art collector, the artist knowingly and falsely represented to her that the painting in question was by a recently deceased artist. The art collector, deceived by this misrepresentation and relying thereon, paid money for the painting. Thus, the artist has committed the offense of false pretenses.
(A) is incorrect because a writing that derives its value from the mere fact of its existence (historical or artistic value) cannot be the subject of forgery.
(C) is incorrect because larceny by trick involves
obtaining possession, not title, by means of a false representation.
A college student was the sole lifetime beneficiary under a large trust administered by a
banker. The student received a large monthly
distribution from the trust, and whenever he
ran short, he simply called the banker for extra
funds, because the trust provided that the student was to receive whatever he needed from income or principal. The student’s roommate found out about the trust arrangement and decided to see if he could make it pay off for him. The roommate sent an email to the banker, which appeared to be from the student, and which asked for several thousand dollars to cover medical expenses. The email further stated that, since he was in the hospital, the student would send his roommate to pick up the cash. The next day, the roommate showed up at the banker’s office and obtained the money on the promise that he would take it to the student. The roommate absconded with the funds. When the roommate obtained the cash from the banker, what crime did the roommate commit?
(A) False pretenses.
(B) Embezzlement.
(C) Larceny by trick.
(D) Larceny.
(C) The roommate committed larceny by trick because the banker’s consent to the roommate’s taking the money was induced by the misrepresentation that the roommate would take the money to the student/beneficiary.
Larceny consists of a taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. If the person in possession of property has not consented to the
taking of it by the defendant, the taking is trespassory. However, if the victim consents to the defendant’s taking possession of the property, but such consent has been induced by a misrepresentation, the consent is not valid. Under such circumstances, the larceny is called larceny by trick.
Here, the roommate obtained the money from the banker on the promise that he would take it to the student/beneficiary. This misrepresentation induced the banker to give possession of the money to the roommate. The roommate then proceeded to take the money and carry it away,
intending all the while to permanently deprive one who had a possessory interest superior to the roommate’s of his interest in the money. Thus, all the elements of larceny are present. Because
the original wrongful taking resulted from consent induced by misrepresentation, the specific larceny committed by the roommate is more precisely characterized as larceny by trick. Consequently, although the roommate has in fact committed larceny, (C) is a better answer than (D).
Regarding (A), false pretenses consists of obtaining title to the property of another by an intentional (or knowing) false statement of past or existing fact, with intent to defraud the other. If a
victim intends to convey only possession of the property to the defendant, the offense is larceny
by trick. However, if the victim intends to convey title, the offense is false pretenses.Here, the
banker intended to convey possession of the money to the roommate so that he could give the money to the student/beneficiary.The banker did not intend to convey title to the roommate. Because the roommate did not obtain title by means of his misrepresentation but simply obtained possession, the offense of false pretenses was not committed.
(B) is incorrect because embezzlement is the fraudulent conversion of property of another by a person in lawful possession of that property. In embezzlement, the misappropriation of the property occurs while the defendant has
lawful possession of it. In larceny, the misappropriation occurs generally at the time the defendant obtains wrongful possession of the property. The roommate did not have lawful possession of the money because his possession of the money resulted from his misrepresentation to the banker. Thus, the roommate’s taking of the money was wrongful from the outset. Because the roommate had wrongful, rather than lawful, possession of the money, there was no embezzlement.
The defendant rented a room for two nights
at a hotel. The room was equipped with a large
color television set. The defendant decided to
steal the set, pawn it, and keep the proceeds. To
conceal his identity as the thief, he contrived to
make his room look as if it had been burglarized.
However, he was traced through the
pawnbroker and arrested.
Of which crime is the defendant guilty?
(C) Larceny.
(D) Larceny by trick.
(C) The defendant is guilty of larceny because, while having mere custody of the television set, he carried it away from the hotel intending to permanently deprive the hotel owner of his interest in the set. Larceny consists of the taking and carrying away of tangible personal property of another by trespass, with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. Property must be taken from someone who has a possessory interest superior to that of the defendant. If the defendant has custody of the property, rather than possession, his misappropriation of the property is larceny. Possession involves a much greater scope of authority to deal with the property than does custody. Here, the defendant only had the authority to use the television set for viewing purposes while he was staying at the hotel. Thus, the defendant had only enough authority to deal with the set as to indicate that he had custody of it rather than possession. Consequently, the hotel owner had a possessory interest in the set superior to that of the defendant. The defendant took the set by trespass (without the consent of the owner) and
carried it away with the intent to permanently deprive the owner of his interest in the set. Thus,
the defendant is guilty of larceny.
(D) is incorrect because larceny by trick occurs when the victim consents to the defendant’s taking possession of the property but such consent has been induced by a misrepresentation. Here, the hotel owner never consented to give the defendant possession of
the television set, through misrepresentation or otherwise. Instead, the defendant simply took the
set without the consent of the owner. Therefore, this is not larceny by trick.
The defendant approached a clerk at a local
gas station/mini-mart and offered to exchange
a pair of sunglasses for some gas. The clerk
refused, saying he could only accept cash. The
defendant then pulled a knife out of his pocket
and told the clerk he wanted a fill up. The clerk,
who was quite a bit older than the defendant,
gave him some “fatherly advice” that crime does
not pay. In response to the advice, the defendant
put the knife away. Feeling sorry for the defendant, the clerk then agreed to give him some gas for the sunglasses. The defendant got the gas and then left. The clerk then discovered that the defendant had taken the sunglasses from a display case in the store and clipped the tag off before offering them to the clerk. The defendant was apprehended shortly thereafter.
Which of the following statements is correct
regarding the defendant’s conduct?
(A) The defendant can be convicted of larceny
by trick and attempted robbery.
(B) The defendant can be convicted of false
pretenses and attempted robbery.
(B) The defendant can be convicted of false pretenses and attempted robbery.
False pretenses consists of obtaining title to the property of another by an intentional or knowing false statement of past or existing fact with intent to defraud another. With regard to the false representation, all that is required is that the defendant create a false impression as to a matter of fact, which is what happened here. In this case, the defendant obtained title to the gasoline by creating a false impression that he owned the sunglasses that he was offering in exchange, and he had the requisite intent to be convicted of false pretenses.
He can also be convicted of attempted robbery because he attempted a taking of the property of another in the presence of the victim by force and with the intent to permanently deprive the victim of it. The fact that he was persuaded not to carry out the robbery does not affect his liability for attempt; that crime was completed as soon as he pulled out a knife and demanded the gas.
(A) is incorrect because larceny by trick occurs
when possession of the property is obtained by the defendant’s misrepresentations, whereas false pretenses is the appropriate offense when the misrepresentations have prompted the victim to convey title to the property to the defendant. Here, the clerk intended to convey title to the gas
to the defendant in exchange for the sunglasses.
With the owner’s permission, a defendant took
the owner’s car with the intention of driving it three miles to a grocery store and back. While on his way to the store, the defendant decided
to keep the car. Two days later, he changed his mind and returned the car. The defendant is
charged with larceny of the car. Should the defendant be found guilty of larceny?
(B) Yes, because he had the requisite intent.
(D) No, because he lacked the requisite intent.
(D) The defendant is not guilty of larceny because he lacked the intent to deprive the owner permanently of his car at the time of the taking. Larceny consists of: (i) a taking (ii) and carrying away (iii) of tangible personal property (iv) of another (v) by trespass (vi) with intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. The intent to deprive must exist at the time the property is taken.
Here, the defendant is not guilty of larceny because, at the time of the taking, he intended to return the car within a reasonable time and had a substantial ability to do so.
Robbery is defined as …
(i) a taking (ii) of personal property of another
(iii) from the other’s person or presence (iv) by force or intimidation, (v) with the intent to permanently
deprive the other of the property.
The “presence” element is satisfied if the victim is in the vicinity when the property is taken.
i.e.
The thief used the threat of force against the victim to obtain the property, and obtained it while the victim was locked in the bathroom of the hotel room, and therefore in the vicinity.
The owner of a furnished cottage leased it
to another for one year. While this lease was
in effect, the cottage owner found herself in
immediate need of cash, and decided to burn
down the cottage to collect the insurance on it.
She waited until one evening when the tenant
was away. The cottage owner then used her
own key to gain access to it. To make it appear
that the fire was caused accidentally by the
tenant, she soaked one end of the mattress on
the bed in the bedroom with gasoline and then
left a lighted cigarette burning at the other end
of the mattress. She planned that the cigarette
would ignite the mattress and that when the
fire smoldered to the area soaked in gasoline,
the entire bed would burst into flames, and the
resulting fire would destroy the house. However,
the tenant returned home earlier than expected
and discovered the fire just as the mattress burst
into flames. He immediately put it out with a fire
extinguisher. A police investigation revealed the
cottage owner’s activities.
What crime(s), if any, has the cottage owner
committed?
(A) Burglary as to the house and arson as to the
mattress.
(C) Burglary and attempted arson.
(C) The cottage owner is guilty of burglary because the right of occupancy belonged to the tenant. However, the fact that there was no burning of the structure means that the cottage owner is guilty of attempted arson rather than arson.
Burglary at common law is a breaking and entering of the dwelling of another at nighttime, with the intent of committing a felony therein. A breaking requires some use of force to gain entry, but minimal force is sufficient. In determining whether the dwelling is that of another, occupancy rather than ownership is material. Thus, an owner can commit burglary of her own structure if it is rented and used as a dwelling by someone else.
Here, although the cottage owner owned the cottage, the tenant had the right to occupy it
pursuant to a lease. Thus, for purposes of the crime of burglary, the cottage owner is deemed to have entered the dwelling of another. Although the cottage owner used her own key to gain access to the cottage, this was still an unconsented use of force to effectuate entry, thereby constituting a breaking. This breaking and entering of the tenant’s dwelling occurred in the evening. At the time of the entry, the cottage owner intended to commit the felony of arson. Consequently, all the elements of burglary are in place, making her guilty of this crime.
Arson consists of the malicious burning of the dwelling of another. There is a requirement of
some damage to the fiber of the wood or other combustible material.A_s with burglary, ownership of the structure is not material for determining whether the dwelling is that of another; rather, the right to occupancy is material._ The cottage owner left a lighted cigarette on the mattress, intending to burn down the entire cottage. However, the tenant extinguished the fire before any damage was done to the structure of the cottage, even mere charring. Absent such damage, arson cannot have been committed. The cottage owner did commit attempted arson.
A criminal attempt is an act which, although done with the intention of committing a crime, falls short of completing the crime. The defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Also, the defendant must have committed an act beyond mere preparation
for the offense.
The cottage owner intended to perform an act that would have culminated in the crime of arson. By soaking the mattress with gasoline and leaving a lighted cigarette on it, the cottage owner committed an act that came dangerously close to successfully burning the cottage. This act, in combination with the intent to commit arson, means that the cottage owner is guilty of attempted arson.
(A) is incorrect because there can be no arson as to the mattress. Arson requires a burning of a dwelling. Because the cottage was not burned, the cottage owner is not guilty of arson.
Can withdrawal be a defense to conspiracy charge? What about subsequent crimes committed by the co-conspirators in furtherance of the conspiracy?
Some jurisdictions recognize withdrawal as a defense to a conspiracy charge, but even those jurisdictions require that the co-conspirator somehow act to thwart the conspiracy.
Withdrawal, however, does act as a defense to the subsequent crimes committed by the co-conspirators in furtherance of the conspiracy.
A homeowner decided to burn down his own home for the insurance proceeds, which constituted the crime of arson in the jurisdiction.
The homeowner hired an arsonist to commit
the crime so that he could establish an alibi
elsewhere. On the night of the planned crime, a
neighbor alerted police after seeing the arsonist
pour gasoline all over the defendant’s front porch, and the police apprehended the arsonist
before he could start the fire. The arsonist
implicated the homeowner and agreed to testify
against him in exchange for the charges of conspiracy to commit arson and attempted arson
being dropped against the arsonist. Which of the following best states the crimes for which the homeowner may be convicted?
(A) Solicitation, attempted arson, and conspiracy
to commit arson.
(B) Attempted arson and conspiracy to commit
arson.
(C) Solicitation and attempted arson.
(D) Attempted arson only.
(B) The homeowner may be convicted of attempted arson and conspiracy to commit arson.
The homeowner is liable for attempted arson under the principles of accomplice liability because he solicited the arsonist to commit arson with the intent that his house be burned. If the person solicited proceeds far enough to be liable for attempt, the solicitor will be a party to that attempt.
Here, the arsonist has proceeded far enough to constitute an attempt—the pouring of the gasoline is an overt act that has proceeded beyond mere planning. Therefore, the homeowner can be found criminally liable for attempted arson based on an accomplice theory. The homeowner also can be convicted of conspiracy, which is an agreement between two or more persons to commit an unlawful act, because he agreed with the arsonist to commit the crime of arson. Further, the arsonist’s
conduct satisfies the overt act requirement for conspiracy. _Note that under the majority rule,
conspirators may be convicted of both the criminal conspiracy and the substantive offense; i.e., there is no merger._
(A) and (C) are incorrect because, unlike conspiracy, solicitation merges into the
completed crime. (An attempt will be considered a completed crime for purposes of merger.) Thus, the homeowner cannot be convicted of both solicitation and attempted arson, as those choices state.
(D) is incorrect because, as discussed above, conspiracy does not merge into the completed crime. Additionally, the fact that the charge of conspiracy was dropped against the arsonist does not preclude the homeowner’s conviction for conspiracy. Although an acquittal of the other party to a conspiracy, as a general rule, precludes the conviction of the remaining party, this rule does not apply if the other party is charged with a lesser offense or is no longer being prosecuted.
An attempt has two elements:
(i) a specific intent to commit the target crime, and (ii) an overt act in furtherance of the crime.
***
For conspiracy, although an overt act was not required at common law, the majority rule today is that an overt act committed in furtherance of the conspiracy is required, but “mere preparation” usually suffices as an overt act.
The transferred intent doctrine does not apply to …
…attempt crimes
The defendant pointed a loaded gun and shot at the victim. The bullet, however, missed the intended victim, but struck a bystander in the stomach. The bystander fully recovered. In a subsequent prosecution for attempted murder of
both the victim and the bystander, the defendant testified that he had wanted only to scare the
victim. Assuming that the jury believes this testimony, the defendant may be convicted of
attempted murder as to whom?
(C) Both the victim and the bystander.
(D) Neither the victim nor the bystander.
(D) The defendant may not be convicted of attempted murder of the victim or bystander because he lacked the necessary intent.
A criminal attempt consists of: (i) conduct that brings the defendant in close proximity to the completed offense; and (ii) the intent to commit the completed crime. In other words, the defendant must have the intent to perform an act and obtain a result that would constitute the crime charged if achieved. Regardless of the intent required for the completed offense, an attempt always required specific intent. Thus, _attempted murder required the specific
intent to kill another person_, even though the mens rea for murder itself does not require specific intent—had the bystander died, the defendant could have been convicted of murder, given that malice could have been established by the defendant being aware of an unjustifiably high risk to human life (i.e., an “abandoned and malignant” heart) by pointing a loaded gun and shooting at an individual. However, the defendant did not have the intent to kill either victim, so he lacked the intent necessary for attempt.
The defendant discovered that his friend had hit and killed a pedestrian while driving that afternoon, and that he had fled from the scene of
the crime before the police arrived. To keep his
friend out of trouble, the defendant fixed all the
dents in the car caused by the collision and had
the vehicle painted a different color. The friend, distraught about hitting and killing someone,
eventually turned himself in and told the police what he had done and what the defendant had
done for him. The defendant was charged as an
accomplice to vehicular manslaughter in a state that follows the modern trend regarding accomplice liability. How should the defendant be found?
(A) Not guilty, because he only helped his
friend after the crime was already committed.
(C) Guilty, because he aided his friend in the
crime.
(A) The defendant should be found not guilty as an accomplice.
Under modern statutes, parties to a crime are divided into three different categories.
Principals are those who, with the requisite mental state, actually engage in the act or omission that causes the criminal result.
An accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the offense. Under modern statutes, accomplices are generally treated as principals.
An accessory after the fact is one who receives, relieves, comforts, or assists another knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. Unlike an accomplice, an accessory after the fact has committed a separate crime with a punishment unrelated to the felony committed.
In the instant case, it is clear that the defendant aided his friend in avoiding capture, that he provided no aid to the substantive offense, and that he did not intend the substantive offense to occur. Thus, he is an accessory after the fact and not an accomplice, making (A) the correct answer.
(C) is incorrect. The defendant did not aid his friend in the commission of the crime; his help came afterward. Thus, the aid provided makes him an accessory after the fact, as explained above, and not an accomplice.
A person may use deadly force in self-defense if:
(i) he is without fault;
(ii) he is confronted with unlawful force; and
(iii) he reasonably believes that he is threatened with imminent death or great bodily harm if he does not respond with deadly force.
After an altercation on the practice field
between a freshman and a senior on a college
football team, the senior came up behind the
freshman in the locker room and shoved him in
the back. When the freshman turned around,
the senior punched him in the face. Before the
freshman could retaliate, the two were quickly
separated by other players. The senior taunted
him, “The next time I see you I won’t go so easy
on you.” That night the freshman was at a bar
frequented by the football players and became
enraged when some of them teased him about
the altercation. He then saw the senior enter the
room but kept his back to him. Suddenly he felt
someone shove him in the back. Pulling out his
pocketknife, he whirled and stabbed the person
behind him, believing it to be the senior. In fact,
it was an intoxicated patron who had stumbled
and fallen into the freshman. The knife severed
a major artery, and the patron died on the way to
the hospital.
The freshman is charged with murder for the
patron’s death. At trial, the freshman testified
that he honestly believed that the senior was
going to kill him the next time he saw him. On
cross-examination, he admitted that such a belief
was unreasonable. The freshman’s attorney
requests the judge to instruct the jury on voluntary manslaughter, both on an “imperfect selfdefense” theory and on a “heat of passion” basis. How should the judge respond?
(A) The judge should give both an “imperfect
self-defense” instruction and the “heat of passion” instruction.
(B) The judge should give the “imperfect selfdefense” instruction, but not the “heat of
passion” instruction.
(A) The judge should give both manslaughter instructions and allow the jury to consider both theories of manslaughter in determining whether the intentional killing should be reduced to voluntary manslaughter.
In a “heat of passion” killing, provocation will reduce a killing to voluntary manslaughter if four requirements are met:
(i) the provocation was a type that would arouse sudden and intense passion that would cause a reasonable person to lose self-control,
(ii) the defendant in fact was provoked,
(iii) there was not sufficient time between the provocation and the killing for the passion of a reasonable person to cool, and
(iv) the defendant in fact did not cool off between the provocation and the killing.
Although some provocations were defined as inadequate as a matter of law at common law, modern courts are more likely to submit to the jury the question of what constituted adequate provocation. Similarly, whether there has been a sufficient time for a reasonable person to cool off is a factual question that depends on the nature of the provocation and the attendant circumstances.
Here, the freshman’s belief that he was being shoved again by the senior and set up for a more severe beating may have rekindled his rage at the earlier punch and taunting by the senior. The jury should be allowed to consider all of the circumstances, including the earlier altercation, to decide whether there was a sufficient provocation or a sufficient time for a reasonable
person to cool off. Hence, the judge should agree to give the “heat of passion” manslaughter
instruction.
Some states recognize, as this state apparently does, an “imperfect self-defense” doctrine under which a murder may be reduced to manslaughter even though the defendant unreasonably
but honestly believed in the necessity of responding with deadly force. Such a defense
appears to also have been raised by the facts.
While the defendant was committing a robbery, he shot and killed the victim. The defendant is charged with first degree murder in a state that defines first degree murder as murders committed with premeditation or deliberation or during the commission of burglary, arson, rape, or robbery, and defines second degree murder as all other murders. The state also defines voluntary manslaughter as the unlawful killing of a human being with malice upon a sudden quarrel or heat of passion, and it defines involuntary manslaughter as the unlawful
killing of a human being without malice in the
commission of an unlawful act, not amounting
to an enumerated felony, or in the commission
of a lawful act that might produce death in an
unlawful manner or without due caution and
circumspection.
Assuming evidence to support, what explanation
for the shooting would best help the defendant in avoiding conviction for first degree murder?
(A) In an act of resistance, the victim suddenly
attacked the defendant and knocked him
down, so the defendant pulled the trigger
because he was afraid the victim was going
to hit him again.
(B) The defendant had the gun for many years,
it was old and rusty, and he did not think it
would fire.
(C) The defendant had taken “angel dust”
before the incident and does not remember
getting a gun or holding up the victim.
(D) When the defendant tried to hold up the
victim, the victim said, “Get out of here,
you dirty bum, or I’ll kill you,” and the
defendant became so upset that he did not
know what he was doing.
(C) Because the defendant was charged with first degree murder, the theory of the case is most likely felony murder, and (C) is the only choice that sets out a theory to avoid a felony murder conviction.
If the defendant was so intoxicated that he could not form the intent to steal, then he is not
guilty of robbery, and there would be no “felony” from which the felony murder rule is to arise.
(A) and (B) are incorrect because even though the defendant could argue that no premeditation or
deliberation was present, he would still be guilty of first degree murder under the felony murder
rule because the felony was robbery.
(D) is wrong because insulting someone is not adequate provocation that would mitigate a homicide to voluntary manslaughter; neither would this “threat” suffice, in all likelihood. At most, the circumstances might produce the sort of unreasonable anger that would negate premeditation and deliberation. However, because the defendant clearly caused
the homicide while committing the felony of robbery, his crime remains first degree murder.
A state statute defines all murders as second
degree murders unless deliberation and premeditation can be shown, in which case the crime is elevated to first degree murder. Manslaughter is defined as at common law.
The defendant, just having been served with
divorce papers, decided to drown his sorrows
at the local pub. After drinking heavily and
becoming very intoxicated, the defendant
became enraged when another patron spilled
a drink on him. He took a nearby ashtray and
smashed it over the patron’s head, killing him
instantly. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the defendant could be convicted?
(B) Murder in the second degree.
(C) Voluntary manslaughter.
(D) Involuntary manslaughter.
(B)
The state defines murder in the second degree just like common law murder. At common law, murder required malice; i.e., (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human
life, or (iv) the intent to commit a felony.
Here, the reckless indifference element arguably could be satisfied. By smashing a heavy ashtray over the other patron’s head, the defendant unjustifiably disregarded that the blow could be a killing blow. Neither would intoxication be a defense, as there would be no specific intent-to-kill requirement under this type of analysis.
(D) is incorrect.
Involuntary manslaughter is a killing committed with criminal negligence or during the perpetration of some unlawful act not encompassing a felony for felony murder. Certainly, striking another with a heavy object would constitute criminal negligence sufficient for conviction. However, involuntary manslaughter is a lesser crime than murder in the second degree, and the call of the question asks for the most serious crime of which the defendant could be convicted, making (B) a better choice than (D).
(C) is also incorrect.
Voluntary manslaughter is a killing committed under the duress of an adequate provocation, and it requires (i) a provocation sufficient to arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose selfcontrol; (ii) the defendant to be in fact provoked; (iii) an insufficient time to cool off; and (iv) the defendant did not in fact cool off. It is unlikely that having a drink spilled on him would cause an ordinary person to commit murder. As a result, such a provocation is not adequate to reduce the killing to voluntary manslaughter.
The Redline view (the majority position)
holds that …
… the killing of a felon by a police officer or resisting victim cannot be the basis for felony
murder.
A police officer stopped a boyfriend and
girlfriend on a college campus under suspicion
that they were selling illegal drugs out of their
backpacks. The officer asked the two some
questions and then asked if he could look in
their backpacks. They consented to the search,
but the officer found nothing suspicious in either
backpack. The officer then patted them both
down and found a package of drugs taped to
the boyfriend’s chest. The boyfriend and the
girlfriend were charged with possession. The
boyfriend pleaded guilty to possession. Prior to
trial, the girlfriend’s attorney moved to suppress
the introduction of the drugs at her trial. At the
suppression hearing, the attorney stipulated that
the girlfriend owned the drugs.
How should the court rule on the motion?
(B) In favor, because both the boyfriend and the
girlfriend had a reasonable expectation of
privacy when the officer elected to search
them.
(C) Against, because the girlfriend has stipulated
that she owns the cocaine.
(D) Against, because the search of the
boyfriend’s body did not violate the
girlfriend’s reasonable expectation of
privacy.
(D) Because the girlfriend’s Fourth Amendment rights were not violated by the unlawful search
of the boyfriend, the drugs may be introduced against the girlfriend at trial.
Under Rakas (1978), Fourth Amendment rights may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. Ownership of the property seized does not automatically establish violation of one’s reasonable expectation of privacy; it is just one factor in the totality of the circumstances that the court will consider.
Here, the drugs were seized from the boyfriend as a result of a search that may have violated his Fourth Amendment rights. However, nothing in the question indicates that the girlfriend had a reasonable expectation of privacy in the boyfriend’s body (such as the right to exclude others from searching the boyfriend if the boyfriend had consented). Under the circumstances in this case, the girlfriend’s ownership of the drugs does not establish a reasonable expectation of privacy with regard to the search of the boyfriend.
(B) is incorrect even though it is a true statement. The officer’s search of the girlfriend may have violated the girlfriend’s reasonable expectation of privacy, but no evidence was obtained by an illegal search of the girlfriend. The officer’s search of the boyfriend may have violated the boyfriend’s reasonable expectation of privacy but not the girlfriend’s expectation of privacy (as discussed above). Because the girlfriend’s Fourth Amendment rights were not violated by the search of the boyfriend, she cannot use the exclusionary rule to suppress introduction of the drugs.
(C) is incorrect because the defendant has the right to testify and stipulate to facts at a suppression hearing without her testimony or stipulation being admitted against her at trial on the issue of guilt.
This rule allows a defendant to assert a possessory or ownership interest in illegally seized evidence just for purposes of invoking the exclusionary rule; if she fails to have the evidence excluded, she may still deny possession or ownership at trial.
The police obtained a valid arrest warrant
for a drug dealer. A reliable informant told the
police that the drug dealer was staying at a
friend’s house until “the heat was off.” Without
having obtained a search warrant, the police
went to the friend’s house, knocked on the door,
and asked the friend if the drug dealer was there.
The friend replied that the drug dealer had been
staying at the house for a few days but had left a
few hours ago. The police pushed open the door
and began searching for the drug dealer. They
found him hiding in a closet along with two fivepound
bricks of marijuana. They arrested both
the drug dealer and the friend. Before his trial
for possession of marijuana, the friend moved to
suppress the marijuana found in the closet.
Should the court grant the motion to suppress?
(A) Yes, because a search warrant was required.
(B) Yes, because the police may not execute an
arrest warrant at the third party’s home.
(C) No, because the police had probable cause
to believe that the drug dealer was staying
at the friend’s home.
(D) No, because the police had a valid arrest
warrant and the marijuana was found
incident to the arrest.
(A) The court should grant the motion to suppress because a search warrant was required.
Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home.
If the police do execute an arrest warrant at the home of a third party without obtaining a
search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.
Thus, (A) is correct and (D) is incorrect.
(B) is incorrect because it is too broad.
A person can be arrested at the home of a third party, but the police generally cannot enter the third party’s home without consent unless they have a search warrant for the home.
(C) is incorrect because, as discussed above, a search warrant is required absent exigent circumstances, which are not present in this case. Here, the probable cause established by the informant’s disclosure would have enabled the police to obtain a search warrant.
A police officer saw a car containing three
teenagers driving slowly down the street at 1
a.m. She waited for it to go by her and, after
it was far enough ahead, started to follow it.
Several blocks later, the car rolled through a
stop sign. The officer immediately pulled the
car over and requested the driver’s license. A
license check showed that the driver had five
outstanding parking tickets. A statute in the
jurisdiction permits an arrest to be made if a
driver has four or more outstanding parking or
traffic violations. The officer decided to take
the driver in on the tickets. She informed the
driver that he was under arrest and asked him to
step out of the car. When the driver got out, the
officer patted him down and found a gun in his
waistband. Calling for backup, she decided to
haul all three teenagers to jail.
Subsequent testing showed that the gun had
been used in a recent homicide during a store
robbery by three young men. One of the passengers
made a motion to prevent the introduction
of the gun at his trial for murder and robbery.
How should the judge rule?
(A) Deny the motion, because the gun was
found after the driver had been arrested.
(B) Deny the motion, because the officer
lawfully stopped the car.
(B) The judge should deny the motion.
Evidence will be suppressed if it was obtained in violation of the defendant’s constitutional rights. Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed.
Here, the officer had a valid reason to stop the car. An officer may stop a car for violating a traffic law, and here the driver of the car failed to stop at
a stop sign.
(A) is incorrect because it is irrelevant. A person may seek suppression of evidence that has been seized only if the seizure is in violation of the person’s own constitutional rights.
While it is true that the gun was properly seized from the driver because the arrest appears to
have been valid, the gun would be admissible against the passenger even if it had been unlawfully seized from the driver. The driver, of course, would have standing to complain of the unlawful seizure, but not the passenger.
A police officer was given a tip about a
blonde male living in a nearby trailer park who
was selling narcotics. The officer immediately
drove to the trailer park and obtained from the
manager the names of six blonde males who had
trailers or mobile homes in the trailer park. At
the first lot, the officer knocked on the defendant’s door, announced that he was a police officer, and asked to talk to the defendant. The defendant’s girlfriend, who did not live there
but had been visiting, told the officer that the
defendant would not be back for some time. The
officer, believing that the girlfriend lived there,
_told her that he suspected that the defendant
was dealing drugs_and asked her if he could
look around a little. The girlfriend said, “Sure,
why not?” and let the officer in. After seeing
nothing in the main living area, he went into
the small back bedroom and opened several
small storage compartments. In the corner of
one of the compartments, he found an opaque
bag. On opening it, he observed that it contained
what appeared to be marijuana and confiscated
the bag. Shortly thereafter, the defendant
was arrested and charged with possession of
narcotics with intent to distribute, a felony.
On a motion by the defendant’s attorney to
suppress the introduction of the marijuana into
evidence, how is the court likely to rule?
(B) For the defendant, because the search
exceeded the scope of the consent.
(C) Against the defendant, because mobile
homes fall within the automobile exception
to the warrant requirement.
(D) Against the defendant, because the officer
reasonably believed that the defendant’s
girlfriend lived in the trailer.
(D) The court should deny the defendant’s motion because the officer reasonably believed that the
defendant’s girlfriend lived in the trailer, making the search valid.
Under the exclusionary rule,
evidence obtained from an unconstitutional search must be excluded from trial.
To be valid, searches must be reasonable. The Supreme Court has held that most searches are unreasonable unless the police obtain a warrant before searching. However, there are six categories of searches that the Court has held to be reasonable without a warrant. One such category is searches conducted pursuant to consent. To fall within this exception to the warrant requirement, consent must be given by one who appears to have an apparent right to use or occupy the premises and the search cannot go beyond the scope of the consent given. The consent is valid as long as the police reasonably believed that the person who gave the consent had the authority to do so, and the scope of the consent is limited only to areas to which a reasonable person under the circumstances would believe it extends.
Here, the girlfriend’s consent was valid because the officer believed that she lived there. His belief appears to be reasonable because she answered
the door, knew of the defendant’s whereabouts, and readily consented to the search. Therefore,
the search was valid under the consent exception and the evidence should not be excluded.
(B) is incorrect because the scope of consent extends to any area where a reasonable person under the circumstances would assume it extends. Because the officer told the girlfriend that he suspected the defendant of dealing drugs, it was reasonable to assume that he was looking for drugs and so would probably look in even small containers.
(C) is incorrect because it appears that the defendant’s trailer would not fall within the automobile exception.
Certain searches of automobiles are excluded from the requirement of a warrant because the
Supreme Court has held that people have a lesser expectation of privacy in an automobile than in other areas and automobiles are likely to disappear before a warrant can be acquired. The automobile exception extends not only to cars, but also to other vehicles that are readily mobile and as to which there is a lesser expectation of privacy. However, nothing in the facts here indicates that the defendant’s mobile home may readily be moved, and because it appears to be the defendant’s regular home rather than a vehicle, it is doubtful that the Court would find the requisite lesser expectation of privacy. Therefore, the trailer would not fall within the automobile exception to the warrant requirement.
