Mixed Questions - Set 20 Flashcards
An employee sued her employer in federal court for sexual harassment. The jury returned a verdict in favor of the employer. Three months after the verdict, the employee’s attorney received an anonymous letter stating that a key document presented at trial by the employer had been altered. The employee moved for relief from judgment, alleging that a document presented by her employer at trial had been altered.
Assuming that the employee can show that the alteration was intentional, how should the court rule?
A Deny the employee’s motion, because, while fraud and misconduct of an adverse party are proper grounds for relief, such motions must be brought within 28 days of the final judgment.
B Deny the employee’s motion, because her claim fails to state a proper ground for relief from judgment.
C Grant the employee’s motion, because fraud and misconduct of an adverse party are proper grounds for relief, and she filed within the appropriate time frame.
D Grant the employee’s motion, because fraud and misconduct of an adverse party are proper grounds for relief, and there is no time limit on such actions.
C
The court should grant the employee’s motion. A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year. Here, the employee filed her motion based on the adverse party altering a document, which amounts to fraudulent misconduct by the adverse party, and she properly filed her motion within a year. Therefore, the court should grant her motion. (A) is wrong because it states the wrong time frame by which a motion for relief from judgment based on fraud or misconduct of the adverse party must be filed. The 28-day time period applies to a motion to reconsider a prior order or renew a prior motion, which is inapplicable to these facts. (B) is wrong because, as stated above, fraud or other misconduct of an adverse party is a proper ground for granting relief from judgment. (D) is wrong because there is a one-year time limit to file a motion for relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party. There is no time limit for such a motion if it is based on a clerical mistake, but that is not the ground that applies to this question.
A plaintiff corporation filed an antitrust action against two defendant corporations in federal district court. The action seeks damages based on the defendants’ allegedly conspiring to fix prices in violation of federal antitrust statutes. The plaintiff has in its possession three internal memoranda written by key officers of the defendants that indicate that the defendants in fact were conspiring to fix prices.
Absent an applicable discovery request from the defendants, must the plaintiff disclose to the defendants the plaintiff’s knowledge and possession of the memoranda?
A Yes, because the plaintiff must produce without any request all documents in its possession that it may use as evidence to support its claim.
B Yes, because any party must produce without request all documents in its possession that are relevant to a claim or defense in the action.
C No, because parties must produce documents only in response to appropriate requests for production of documents.
D No, because they were written by the defendants and the defendants should thus be aware of their existence.
A
The plaintiff must disclose its knowledge and possession of the memoranda without a discovery request. Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses. (B) is incorrect because a party must only produce documents relevant to its own claims or defenses. (C) is incorrect because, as stated above, disclosure is required even without a discovery request. (D) is incorrect because it does not matter that the memoranda were written by the defendants; the plaintiff must disclose that it possesses them.
A landowner owns 15 acres of undeveloped property. He plans to build a stadium complex on the property to house a football team two years from now, but would like to open the 15 acres to public use for picnicking and similar activities until then.
Which of the following would best accomplish the landowner’s goal?
A Dedicate the 15 acres for use as a public park.
B Lease the 15 acres to the city for two years.
C Grant the city an easement for public recreational uses for two years.
D Covenant that the city may use the 15 acres for recreation for two years.
C
The best way for the landowner to accomplish his goals is to grant the city an easement for recreational use for two years. An easement would allow the city to use the land only for the purposes provided for in the easement, and the landowner could limit the purposes to recreational uses. Thus, (C) is the best answer. (A) would not be a good choice because if the landowner dedicated the land to public use, he would be giving title to the land to the government, so he would not be able to reclaim the land and build his stadium in the future. (B) would not be a good choice because a lease would give the city more control over the land than an easement, and would be more complicated to create. A lease grants the lessee the exclusive right to possess the premises, and broad rights to use them in any manner, unless specifically restricted. Thus, if the landowner leases the land to the city, he would not have access to the land, and if he wanted it used only for recreational purposes, he would have to specifically restrict any undesired uses. Any restriction not included in the lease will be unenforceable. An easement, on the other hand, grants only a limited interest in the land—to use it for only those purposes stated in the easement; thus, it would be better than a lease. (D) is not a good choice because covenants usually are made in conjunction with a lease, deed, or other instrument; they promise some act or forbearance with respect to property and are generally not used to grant rights for access to property.
An owner of land gave his friend a deed for a specified parcel of property. After the owner’s death, the friend discovered that the owner had sold part of the property. The purchaser had been given an easement to cross over the owner’s property to get to the property she had purchased, although there is no evidence that the purchaser had ever used the “right of way.”
If the purchaser does have the right of way over the property the owner gave to his friend, the owner’s estate would be liable for breach of which covenant?
A Against encumbrances.
B Of quiet enjoyment, if such a right of way exists whether or not the purchaser is using it.
C Of right to convey, because the owner, by not mentioning the right of way in the friend’s deed, implied that there were no easements.
D Of right to convey, because the existence of the right of way by the purchaser is inconsistent with the owner’s alleged title.
A
The existence of the easement breaches the covenant against encumbrances, and the owner’s estate is in breach of this covenant. (B), (C), and (D) are incorrect because the existence of an easement burdening the land does not breach the covenant of quiet enjoyment or right to convey, respectively. The covenant of quiet enjoyment is breached when the grantee is evicted by a third party with paramount title, i.e., title or ownership of the estate conveyed that is superior to the grantor’s title. The covenant of right to convey is breached if the grantor lacks title, i.e., ownership of the estate conveyed, at the time of the grant.
A plaintiff was injured in an automobile accident caused by the defendant. The plaintiff sued the defendant for his injuries. In preparation for trial, the plaintiff’s attorney hired a doctor to examine the plaintiff. At trial, the defense attorney attempts to call the doctor as a witness to testify about statements the plaintiff made in confidence to the doctor about his injuries, which the doctor then communicated to the plaintiff’s attorney. The state recognizes only the common law privileges.
Should this testimony be admitted?
A Yes, because the plaintiff’s statements are the statements of a party-opponent.
B Yes, because the plaintiff waived the physician-patient privilege by placing his physical condition in issue.
C No, because the plaintiff’s statements are protected by the attorney-client privilege.
D No, because the plaintiff’s statements are protected by the physician-patient privilege.
C
The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney’s client is necessary to help the client convey his condition to the attorney. (A) is incorrect because admissions by party-opponents, while not hearsay under the Federal Rules, are still subject to potential privilege assertions. (B) is a true statement; the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff’s suit, so (D) is incorrect. However, (B) is incorrect because when a client is examined by a doctor at the attorney’s request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).
At trial, questions have been raised as to whether the proposed testimony of the witness is relevant and whether it falls within the present sense impression exception to the hearsay rule.
How should a preliminary determination of the admissibility of the witness’s testimony be made?
A A judge should determine whether the proposed testimony falls within the exception before it is heard by the jury, and in making that determination she is limited by the rules of evidence.
B A judge should decide whether the testimony falls within the present sense impression exception, but in making that determination she is not limited by the rules of evidence other than privilege.
C The jury, after being instructed on the rules of evidence by a judge, should determine whether the testimony falls within the scope of the present sense impression exception.
D The jury should determine whether the testimony falls within the scope of the exception and the judge should then instruct the jury on the appropriate uses for that evidence.
B
The judge determines whether the testimony falls within an exception to the hearsay rule, and is generally not limited by the rules of evidence in making that determination. The Federal Rules of Evidence distinguish between preliminary facts to be decided by the jury, which involve whether the proffered evidence is relevant, and preliminary facts decided by the judge, which involve whether the evidence is competent, i.e., not barred by an exclusionary rule. All preliminary fact questions that determine the applicability of an exception to the hearsay rule must be determined by the judge, because the competency of the evidence will depend on that preliminary fact determination. In making this preliminary fact determination, the trial court may consider any nonprivileged relevant evidence, even though it would not otherwise be admissible under the rules of evidence. [Fed. R. Evid. 104(a)] In this case, then, the judge should decide whether the testimony falls within the present sense impression exception, and she is not limited in making this determination by the rules of evidence other than privilege. (A) is incorrect because the judge’s preliminary fact determination does not need to be based on the rules of evidence (other than privilege rules). (C) and (D) are incorrect because, as discussed above, determining whether the testimony falls within the scope of the hearsay exception is a determination of whether the evidence is competent, and this determination is made by the judge rather than the jury.
A state law required all automobile drivers to carry liability insurance; however, because of the high number of auto accidents in the state, the cost of insurance became prohibitive. A study sponsored by the state legislature showed that males under the age of 21 were four times more likely to get into automobile accidents than any other group, including females in the same age group. The study predicted that prohibiting males under the age of 21 from driving would result in a 15% reduction in all other persons’ automobile insurance rates. Ultimately, the legislature raised the minimum age for obtaining a driver’s license to age 21 for males. Females were still allowed to obtain licenses at age 16. An 18-year-old male living in the state when the limit was raised, and who worked as a pizza delivery driver, was fired from his job and replaced by a 17-year-old female.
If the young man sues to have the law set aside and prevails, what is the most likely reason?
A The state could not prove that the law was the least restrictive means of achieving a compelling government purpose.
B The state could not prove that the law was rationally related to a legitimate government purpose.
C The state could not prove that the law was substantially related to an important government interest.
D The state could not prove that the law was necessary to achieve a compelling government purpose.
C
The young man will prevail if the state cannot establish that the restriction is substantially related to an important government interest. Classifications based on gender usually are tested against an intermediate standard of review; i.e., the Supreme Court will strike down the classification unless the government offers an exceedingly persuasive justification that the classification is substantially related to an important government interest. Classifications intentionally discriminating against men generally are invalid, and (C) states the proper standard for review. (A) and (D) are substantially the same and incorrect because they state the standard to be applied to classifications involving a suspect class or fundamental right. However, a gender-based distinction is characterized as a quasi-suspect classification. (B) is incorrect because it states the standard to be applied when no fundamental right or suspect or quasi-suspect class is involved.
Congress passed a law imposing a 50% excise tax on each pack of cigarettes manufactured for sale in the United States. An amendment was successfully added to the original bill requiring that all proceeds from the tax be used for antismoking advertisements. The amendment included severability language (indicating that if the amendment were stricken for some reason, the remainder of the law should stand). The various tobacco companies were required to pay the tax directly to the federal government. A tobacco company filed suit in the appropriate federal court, contending that the tax should be struck down as a violation of the freedom of speech protected by the First Amendment.
Is the court likely to find the tax constitutional?
A No, because it does not provide equal time for the tobacco companies to present their side of the smoking controversy.
B No, because it abridges the First Amendment rights of tobacco manufacturers by forcing them to pay for messages with which they may not agree.
C Yes, because the amendment is severable from the tax bill.
D Yes, because the tax does not force the tobacco companies to speak.
D
The tax is constitutional because it represents a proper exercise of the power of Congress to tax and spend for the general welfare. Pursuant to the Constitution, Congress may tax and spend to provide for the general welfare. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers. The tax at issue here bears a reasonable relationship to revenue production. Also, the purchase and sale of cigarettes in the United States is subject to congressional regulation, as an activity having a substantial economic effect on interstate commerce. Thus, the tax itself is valid. The amendment to the original tax bill is also valid, as a reflection of a congressional determination to use the proceeds of the tax for the promotion and implementation of an antismoking program, presumably in furtherance of public health. This is a public purpose for which Congress can spend pursuant to the General Welfare Clause. Although people (and corporations) cannot generally be forced to convey a message with which they disagree, they can be forced to pay taxes that fund messages with which they disagree. Therefore, (D) is correct. (C) is incorrect because it implies that the amendment is not constitutional. The amendment does not violate the First Amendment because it does not compel speech. It only compels paying taxes, which are then used to fund government speech. Therefore, the constitutionality of the tax does not hinge on the severability of the amendment. (A) is incorrect because there is no “fairness doctrine” under the Constitution; that is, when Congress determines a course of action pursuant to its power to tax and spend for the general welfare, it need not provide equal time for opponents of the action to express their views. (B) is incorrect because the tax in no way abridges the First Amendment rights of the manufacturers. As explained above, while the freedom of speech is very broad and includes the freedom to not speak and to refrain from endorsing views with which one does not agree, it does not invalidate the tax here because the tax does not force the tobacco companies to endorse the stop-smoking clinics or the government’s antismoking stance. Neither does the tax forbid or control the tobacco manufacturers from endorsing a pro-smoking message. The manufacturers’ First Amendment rights are simply not burdened here.
A man purchased a large flat screen television and decided to mount it on the ceiling over his bed. The manual that came with the product included detailed instructions and illustrations on how to mount the television on different types of walls, along with all the required hardware, but contained neither instructions nor warnings regarding mounting on the ceiling. The man carefully followed the wall-mounting instructions and was satisfied that it would hold. In fact, however, the mounting was not appropriate for ceilings. The next night, a woman who was the man’s overnight guest was seriously injured when the television came loose and fell on the bed.
Will the woman prevail in a suit against the company that manufactured the television?
A Yes, because the manufacturer had a duty to include warnings for all potential placements of its product.
B Yes, if the manufacturer knew that its television was sometimes mounted on ceilings rather than walls.
C No, if the manufacturer’s manual had all of the customary warnings for this type of product.
D No, because the man was negligent in mounting the television on the ceiling.
B
Knowledge on the part of the manufacturer that its television was being mounted on the ceiling would give rise to a duty to include in the manual warnings against the practice or detailed instructions on how to safely mount it. The television hardware and instructions were appropriate for its intended mounting on the wall. However, courts in a strict liability case require a commercial supplier to anticipate reasonably foreseeable uses even if they are misuses of the product. If the manufacturer knew that members of the public were sometimes mounting the television on the ceiling, marketing the product without including either warnings against the practice or appropriate hardware and instructions on how to safely do so made the product so defective as to be unreasonably dangerous if it were improperly mounted. Under a strict liability theory, the manufacturer is liable for supplying a defective product. As a guest of a purchaser of the product, the woman is a foreseeable plaintiff; thus, the manufacturer may be liable to her. The defective product actually and proximately caused the woman to suffer serious injuries. Therefore, the manufacturer is liable to the woman in a strict products liability action. (A) is incorrect because the facts do not establish that the manufacturer was under a duty to include the warnings in its manual. Such a duty would exist if the manufacturer knew (as (B) states) or should have known that the television was being mounted on ceilings. (C) is incorrect because industry custom does not conclusively establish the applicable standard of care in a given case (although such customs are admissible as evidence of the standard to be applied). Here, including only the customary warnings in an instruction manual may be violative of the appropriate standard of care (i.e., manufacturers of these televisions may be under a duty to add additional warnings in the manual). Thus, the statement set forth in (C) will not by itself mean that the manufacturer will prevail. (D) is incorrect because, even if the man should have known that the television should not have been mounted on the ceiling, such negligence would not be a superseding cause of the injury because it would be ordinary foreseeable negligence. Consequently, the manufacturer would not be relieved of liability for the results of its own wrongful conduct, but would be held liable along with the man.
An article in a newspaper reported that the city’s professional basketball franchise announced that financial difficulties have forced them to sell the franchise to a group of investors who will probably move the team to another state. The article stated that, according to inside sources, the main reason for the financial difficulties is that the general manager of the team has been siphoning off proceeds from ticket sales to support his gambling habits. The general manager, who is well-known in the community, brought an action against the newspaper for defamation.
If the newspaper stipulates at trial that the statement regarding the general manager is false, what additional facts does he have to prove to recover?
A That the newspaper was at least negligent in verifying the story.
B That the general manager suffered pecuniary damages from publication of the story.
C That the newspaper acted with actual malice in publishing the story.
D That the general manager suffered actual injury as a result of the story.
C
The general manager will have to prove that the newspaper acted with actual malice because he is a public figure. The facts indicate that all of the elements are present to establish a prima facie case of defamation at common law: a defamatory statement of or concerning the general manager was published to others by the newspaper. Because it is libel, damage to reputation, the final common law element, is presumed. However, the general manager is a public figure: he is the general manager of a professional basketball franchise and is well-known in the community. Thus, he has to prove two additional elements: falsity of the defamatory language and fault amounting to “actual malice” on the part of the newspaper. Given that the parties will stipulate that the statement regarding the general manager is false, the only fact not established is that the newspaper acted with actual malice. (A) is incorrect because negligence is the fault standard that private figures have to establish when suing on a matter of public concern. The general manager, as a public figure, has to prove a higher level of fault. (B) is incorrect because pecuniary or special damages do not need to be established in a libel case; the common law presumes damages. (D) is incorrect because proof of actual injury is required by the Constitution only when a fault standard of negligence is applicable. If actual malice is established, the common law rules regarding presumed damages apply.
A state statute provided for criminal penalties for “knowingly selling alcoholic beverages in violation of the regulations of the State Liquor Commission to any person under the age of 18.” One of the State Liquor Commission regulations provided that “before an alcoholic beverage is sold to any person between the ages of 17 and 24, the seller must demand some form of photo identification to determine the buyer’s age.”
A minor who looked much older than his age of 17 walked into a tavern located in the state and asked the bartender for a beer. The bartender never asked the minor for any form of identification, as he thought that he was at least 25 years old. Had the bartender asked for identification, the minor would have shown him a fake identification card showing that he was 21 years old. The bartender served the beer to the minor, who consumed it on the premises. The bartender was subsequently charged under the state statute for selling the beer to the minor.
Is the bartender guilty?
A No, because he reasonably believed that the minor was older than 25 years.
B No, because the minor had fake identification with which he could have obtained the beer.
C Yes, because he sold an alcoholic beverage to a minor, a strict liability crime.
D Yes, because he failed to ask for identification, and the regulation does not provide for a mens rea requirement.
A
The bartender’s reasonable belief that the minor is 25 years old is a mistake of fact that negates the state of mind required by the statute. Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime. In addition, the mistake must be reasonable unless the offense is a specific intent crime. Here, the statute requires that the defendant have acted “knowingly” with respect to each of the material elements of the offense. A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. At least one of the material elements of the offense here is that the sale be to a person under the age of 18. If the bartender believed that the minor was 25 years old, the bartender has not acted knowingly with respect to the fact that the purchaser was under 18, and he cannot be convicted of violating the statute. (B) is not a good answer. Given that the bartender never asked for any identification, the minor’s possession of the driver’s license had no effect on the bartender’s state of mind. (C) is incorrect. Although some states may make selling liquor to minors a strict liability crime, the state here has added a “knowingly” requirement that must be satisfied beyond a reasonable doubt for a conviction. (D) is not as good an answer as (A). Although the regulation apparently does not have a state of mind requirement, it is not entirely clear that criminal liability can result from the violation of the regulation. There would have to be a separate statute providing for criminal penalties for failing to check for identification. Furthermore, the criminal statute in question clearly has a state of mind requirement that must be satisfied, as explained above.
A smoothie retailer and a fruit processor entered into an oral agreement that provided that the processor would deliver to the retailer 100 barrels of fruit each month at a price of $10 per barrel, with delivery on the first of the month and payment of the $1,000 to a creditor of the fruit processor on the 15th of each month. However, when the agreement was reduced to a writing, the fruit processor’s manager inadvertently wrote $20 per barrel, and neither party noticed before signing. The creditor first learned of the agreement between the parties when he received a copy of it the day after it was signed, showing that he was to receive $2,000 per month. One day later, the retailer discovered the mistake and alerted the food processor. The parties prepared a revised writing reflecting the correct contract price of $10 per barrel, and also agreed in writing that the retailer would receive a $2 per barrel discount the first month because it discovered the mistake by the fruit processor. The first delivery under the contract was made two days late, on the third of the month. On the 15th of the month, the creditor demanded payment of $2,000 from the retailer according to the terms of the original writing.
If the retailer contends that it is not liable to pay the full $2,000, which of the following would NOT be relevant to its defense?
A The parties had modified the contract to provide for a $2 per barrel discount the first month.
B The parties had originally agreed that the price per barrel would be $10, and neither party noticed before signing that the manager of the fruit processor had inadvertently written $20 in the contract.
C The fruit processor owed its creditor only $1,600.
D The fruit processor was late with its first delivery.
C
Any defense that the fruit processor might have with respect to the money it owed to the creditor would not provide the retailer with a defense. If the promisor has made an absolute promise to pay the third-party beneficiary (and not simply a promise to pay whatever the promisee owed him), the promisor cannot assert the promisee’s defenses. Hence, the fact that the processor owed only $1,600, even if it could be asserted as a defense by the processor against the creditor, cannot be asserted as a defense by the retailer. (A) is incorrect because the promisee and promisor in a third-party beneficiary contract are free to modify their contract until the third party’s rights have vested. While the creditor learned of the agreement before the processor and the retailer modified it, he did not (i) manifest assent, (ii) bring suit, or (iii) materially rely on the agreement before it was modified; thus, his rights did not vest. Assuming the processor has performed and the retailer’s duty to perform is now absolute, the retailer would be liable to the creditor for only $800 under the contract as modified. Therefore, (A) is a partial defense. (B) is also a partial defense. When a third-party beneficiary sues the promisor on the contract, the promisor may raise any defense he would have had against the promisee. Under the doctrine of reformation, either of the parties to the contract may ask a court in equity to modify the terms of the contract where the writing, through mistake or misrepresentation, does not incorporate the terms orally agreed upon. Here, the parties’ mistake in memorializing the contract permits the retailer to have the contract reformed to show the parties’ original agreement. This provides a partial defense that the retailer can use against the creditor to show that it is not liable for the full $2,000. (D) is incorrect for a similar reason. The processor’s failure to perform according to the terms of the contract may be asserted as a defense by the retailer. The retailer’s liability to the creditor would be offset by whatever lost sales the retailer incurred as a result of the fruit processor’s late delivery.
A homeowner contracted with a local heating company to install two baseboard heaters in an addition to his home for a total cost of $3,500. This figure included the heaters and labor costs for installation. Upon completion of the installation, the heating company sent an invoice to the homeowner for the $3,500. The homeowner did not immediately pay the bill because the heaters were too noisy. The heating company sent a repair worker to the home to service the heaters, but after several attempts to fix the problem, the heaters were still too loud.
The homeowner contacted a qualified repairman to find out how to fix the problem and was told it would cost an additional $300 for new blowers and $150 in labor costs to replace the faulty blowers. The homeowner mailed the heating company a copy of the repair estimate and a check for $3,050—the contract price less the cost of new blowers and labor to install them—and wrote prominently on the check “Payment in full for installation of two baseboard heaters.” The heating company cashed the check upon receipt. The heating company then sued the homeowner for $450, the difference between the agreed contract price and the amount paid.
Is the heating company likely to prevail in its suit seeking the $450 from the homeowner?
A No, because the heating company failed to fix the problem after several attempts.
B No, because the heating company cashed the check.
C Yes, because the check did not represent payment in full (i.e., the contract price) for the work done.
D Yes, because the heating company should have been given more time to cure the defect.
B
The heating company is not likely to prevail in its suit seeking to recoup the $450 from the homeowner. An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that she is supposed to receive from the other party to the existing contract, some other, different performance. Satisfaction is the performance of the accord agreement. Satisfaction discharges not only the original contract but also the accord contract. If a monetary claim is uncertain or is subject to a bona fide dispute, an accord and satisfaction may be accomplished by a good faith tender and acceptance of a check when that check (or an accompanying document) conspicuously states that the check is tendered in full satisfaction of the debt. Here, there was a good faith dispute as to the amount owed. The check the homeowner tendered had a prominent notation that it was payment in full for the two baseboard heaters. By cashing the check, the heating company accepted it, and the accord and satisfaction was complete. The homeowner is discharged from any further performance under the contract. (A) and (D) are wrong because it was the existence of an accord and satisfaction, and not the heating company’s failure to adequately fix the problem, which foreclosed its options to recoup further monies. (C) is wrong because the check represented an accord and thus did not have to be for the contract price.
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.
C Grant the motion, because the officer had no valid reason to be following the automobile.
D Grant the motion, because the officer had not arrested the driver for suspicion of robbing the store or committing the homicide.
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. (C) is wrong because, for whatever reason the officer first followed the car, the fact remains that she had a valid reason for stopping it—violation of the traffic law. And this is so even if the officer’s ulterior motive was to investigate whether some other law was being violated. (D) is wrong because it is irrelevant. As with (A), it is focusing on the wrong party. Moreover, even if the proper arrest of the driver were relevant, the search incident to a constitutional arrest need not have been based on suspicion that the three had committed the crimes for which they have been charged (robbery and homicide); the only requirement is a constitutionally valid arrest. The arrest here was valid because the driver had five outstanding traffic tickets.
