Mixed Questions - Set 27 Flashcards
A State A citizen and a State B citizen were in a car accident in State A. The State A citizen filed a negligence action in a State A state court seeking $200,000 in damages. The State B citizen filed an answer and four months later filed a notice of removal, removing the action to federal court. Two months after the State B citizen filed and served the notice of removal, the State A citizen filed in the federal court a motion to remand the case back to state court.
Should the federal court remand the action to state court?
A No, because the State B citizen was not a citizen of the forum state.
B No, because the motion to remand the action to state court was untimely.
C Yes, because the notice of removal was untimely.
D Yes, because federal courts do not have subject matter jurisdiction over state law negligence actions.
B
The federal court should not remand the action to state court. A defendant may remove an action that could have originally been brought in the federal courts. Generally, a defendant must file a notice of removal within 30 days after receipt by or service on the defendant of the initial pleading or summons (when he learns the case is removable). A defendant may not remove a case based solely on diversity if he is a citizen of the forum state; however, that restriction is not jurisdictional but rather procedural. Once removed, a case must be remanded back to state court if the federal court lacks subject matter jurisdiction. A motion to remand based on procedural defects in removal must be filed within 30 days of removal. Here, the federal court has diversity of citizenship jurisdiction over the action. The plaintiff is from State A and the defendant is from State B (and thus not a citizen of the forum state), and the amount in controversy is $200,000. Although the notice of removal was untimely, the motion to remand was also untimely. A motion to remand on grounds other than a lack of subject matter jurisdiction (e.g., the notice of removal was untimely filed) must be filed within 30 days of removal. The failure to timely remand the case on procedural defects is fatal. Thus, (B) is correct. (A) is incorrect. Although a defendant may not remove a case based solely on diversity when he is a citizen of the forum state, that fact does not address whether the motion to remove or remand was timely. Had the State A citizen timely filed a motion to remand, the motion to remand would have been granted. (C) is incorrect. Although it is true that the notice of removal was not timely, the plaintiff must object to any defects in removal by filing a motion to remand with the federal court within 30 days. Here, the State A citizen failed to do so. (D) is incorrect because state law claims may be heard in federal court under the federal court’s diversity of citizenship jurisdiction.
A plaintiff filed an action against a defendant in federal district court, seeking compensatory damages for negligence after a car accident. The defendant has a policy of automobile liability insurance under which its insurance company will pay for the defendant’s defense and all or part of the defendant’s liability in the action.
Is the defendant’s insurance policy subject to discovery by the plaintiff?
A Yes, because it is relevant to the claims and defenses asserted by the parties.
B Yes, because insurance policies generally are part of the defendant’s required disclosures.
C No, because the insurance policy is not relevant to the claim or defense of any party.
D No, because the insurance policy is protected by privilege.
B
The defendant’s insurance policy is subject to discovery by the plaintiff. As part of its initial disclosures, a party must provide to other parties copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered. (A) and (C) are incorrect because whether the policy is relevant to the claims and defenses of the parties is not the applicable rule to consider here. Insurance policies must be disclosed if the insurer may be liable for the judgment. (D) is incorrect because insurance policies are not protected by privilege.
An owner of a parcel of land instructed his lawyer to draw up an instrument deeding the land to his friend’s “nieces.” The owner acknowledged the deed before a notary and signed it. As directed by the owner, the lawyer recorded the deed and then returned it to the owner. The owner put the deed in the drawer of his desk, intending to present it to the friend’s nieces when they came to visit him next month.
The following week, however, the owner died, leaving his daughter as his sole heir at law. The daughter discovered the deed to the land in the owner’s desk. She filed an appropriate action to quiet title in the land, naming the friend’s only two nieces as defendants. The only evidence presented at the trial was the deed itself, the evidence of recordation, and the lawyer’s testimony regarding the owner’s intent.
Who should the court rule owns the land?
A The nieces, because recordation of a notarized deed is prima facie evidence of delivery.
B The nieces, because a deed is prima facie valid absent evidence to the contrary.
C The daughter, because the evidence is insufficient to support a valid delivery.
D The daughter, because the grantees in the deed are too indefinite.
A
The nieces own the land because recordation is prima facie evidence of delivery. To be valid, a deed must be “delivered,” which means that the grantor must have taken some action (not necessarily a manual handing over of the deed) with the intent that it operate to pass title immediately. Recording a deed that has been acknowledged before a notary is such an action and is presumed to carry with it the requisite intent. Even without the knowledge of the grantee, delivery to the recorder’s office will satisfy the delivery requirement. If the grantor intends the recording of the document to be the final act in vesting title in the grantee, then such recording constitutes delivery. (B) is wrong because a deed alone is not prima facie valid absent delivery. There must be evidence of delivery. (C) is wrong because recordation can constitute valid delivery, and there is sufficient evidence that the deed was recorded. Note that a rebuttable presumption of no delivery may arise from the grantor’s retention of the deed. However, this presumption is rebutted by the recording of the deed. (D) is wrong because a description of the grantees in a deed is sufficient if it describes the grantees with sufficient particularity that it can be determined who is to take the property. The grantee need not actually be named. Because the friend has a finite number of nieces and they are easy to locate and identify, the deed from the owner satisfies this requirement.
An entrepreneur opened a specialized business on her land. After using up most of her capital to purchase inventory, however, the entrepreneur needed more funds and asked her friend for a $30,000 loan, to be secured by the business’s inventory. The friend declined the loan. A desperate entrepreneur then told the friend she would convey the land, which had a fair market value of $100,000, to him if he would give her the loan at the current market rate of interest. The friend agreed, and the entrepreneur conveyed the land to the friend the next day. At that time, the friend gave the entrepreneur $30,000 in cash, and the parties orally agreed that the entrepreneur would pay the friend back at the rate of $1,000 per month, and that after the loan was paid in full, the friend would reconvey the land to the entrepreneur. The friend immediately recorded his deed to the land.
The entrepreneur made three $1,000 payments to the friend and then paid no more. She continued to live on the land but, being very much in debt, could not repay the loan. The friend, meanwhile, had received an offer to buy the land for $100,000.
Which of the following most accurately states the friend’s right to sell the property?
A The friend may sell the land and keep the entire proceeds.
B The friend may sell the land, but he must give $73,000 of the proceeds to the entrepreneur.
C The friend may sell the land only after formally foreclosing on the property.
D The friend may not sell the land.
C
The friend may sell the land, but only after formally foreclosing on the property. If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an “equitable” mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage. In determining whether an absolute deed is really a mortgage, the court considers the following factors: (i) the existence of a debt or promise of payment by the deed’s grantor; (ii) the grantee’s promise to return the land if the debt is paid; (iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property; (iv) the degree of the grantor’s financial distress; and (v) the parties’ prior negotiations. Here, the entrepreneur owed the friend a debt; the friend promised to return the property if the debt was paid; the amount advanced ($30,000) was much lower than the value of the property ($100,000); the entrepreneur was in great financial distress; and the parties’ negotiations reveal that this transaction was intended as security for the loan. Thus, the friend must bring a judicial foreclosure proceeding before he can sell the land. (A) is wrong because a foreclosure is required. Furthermore, even in a foreclosure sale, the friend is not entitled to all of the proceeds. The proceeds are used to first pay the expenses of the sale, attorneys’ fees, and court costs; then to pay the principal and accrued interest on the loan that was foreclosed; then to pay off junior interests. Any remaining proceeds are returned to the mortgagor. The friend is entitled only to his expenses and the amount still owing on the $30,000 loan, including accrued interest. Because the friend has a buyer willing to pay $100,000, the entrepreneur should get some money back. (B) is wrong for two reasons: (i) as explained above, the friend cannot sell the property without a judicial foreclosure; and (ii) the entrepreneur would not be entitled to $73,000. The friend is entitled to his expenses of sale and the principal amount owing, plus accrued interest. (D) is wrong because the friend can sell the land, provided he undertakes formal foreclosure proceedings.
A merchant sued a company for breach of contract, alleging that the products she purchased failed to conform to contract specifications. Shortly before the trial was to begin, the merchant suffered a stroke that left her paralyzed and virtually unable to communicate. Her guardian was properly substituted as the plaintiff in the lawsuit. At trial, following presentation of the plaintiff’s case, the company calls as a witness a priest to question him about a conversation he had with the merchant at a church fundraiser. In this conversation, the merchant told the priest in confidence that the products she received were actually quite functional, but that she had become aware of a lower price being offered by another vendor, and thus wanted to get out of her contract with the company. The plaintiff’s attorney immediately objects on the basis of clergy-penitent privilege.
How should the court rule on the objection?
A Sustained, because the merchant’s statement was made to the priest in confidence.
B Sustained, because this is not a criminal case.
C Overruled, because the privilege can be invoked only by the person who made the confidential statement.
D Overruled, because the circumstances under which the merchant made the statement take it outside the scope of the privilege.
D
The plaintiff’s objection on the basis of the clergy-penitent privilege should be overruled. Pursuant to the clergy-penitent privilege, a person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication by that person to a member of the clergy in the clergy member’s capacity as a spiritual adviser. The operation of this privilege is very similar to that of the attorney-client privilege. Here, the merchant made the statement to the priest during a conversation at a social occasion. There is no indication that this was a communication made to the priest in his capacity as a spiritual adviser, as would be the case, for instance, with a statement made in the confessional or during a counseling session. Thus, the matters stated to the priest by the merchant do not come within the clergy-penitent privilege, and the priest cannot be prevented from disclosing the contents of the conversation on the basis of this privilege. (A) is incorrect because, although the merchant undoubtedly made the statement in confidence (i.e., intending and expecting that it would not be disclosed to third persons), as explained above, it was not made to the priest in his capacity as a spiritual adviser. Therefore, the clergy-penitent privilege is inapplicable. (B) is incorrect because it implies that the clergy-penitent privilege does not apply to civil cases. Actually, this privilege applies to both civil and criminal cases. (C) is incorrect because, where the privilege exists, it can be claimed by the person who made the confidential communication, her guardian or conservator, or her personal representative if she is deceased. Thus, if the privilege were applicable, the merchant’s guardian (through her attorney) would be able to invoke the protection of the privilege to prevent the priest from disclosing the contents of the conversation with the merchant.
At a products liability trial, a critical issue is whether the temperature was below freezing on January 16. A local man who works for a civil engineering firm is also an avid amateur meteorologist. One of the man’s weather detection instruments in his backyard records temperature by markings from a stylus on a round barograph. The man’s record of the day in question indicates that it was unseasonably warm and that the temperature never fell lower than 48 degrees Fahrenheit, 16 degrees above the freezing mark. The plaintiff offers into evidence the man’s barograph record of the temperature on January 16.
Is the barograph record admissible?
A Yes, as past recollection recorded.
B Yes, as a record of regularly conducted activity.
C No, unless foundation testimony is given as to the accuracy and good working order of the man’s instrument on the day in question.
D No, because it is hearsay not within any recognized exception to the hearsay rule.
C
The barograph record is admissible only if it was properly authenticated. Before a writing or any secondary evidence of its content may be received in evidence, the writing must be authenticated by proof showing that the writing is what the proponent says it is. In general, a writing may be authenticated by any evidence that serves to establish its authenticity. One means of authentication under Federal Rule 901(b) is by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Hence, for the man’s barograph record to be admissible, evidence must have been offered that the instrument is accurate and that it was in good working order when the record was produced. (A) is incorrect because past recollection recorded is inapplicable here. Past recollection recorded is an exception to the hearsay rule that applies when a witness testifying about an event has insufficient recollection of it, even after consulting a record of the event. The record itself may be read into evidence if a proper foundation has been laid for its admissibility. Here, no witness is testifying—the barograph record is being offered independent of any testimony. (B) is incorrect because the hearsay exception for records of regularly conducted activity applies only to records for which the entrant was under a duty to record; it does not include what the man does for a hobby in his backyard. Hence, that hearsay exception is inapplicable. (D) is incorrect because the barograph record is not hearsay. Under the Federal Rules, hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A “statement” under the Federal Rules is an oral or written assertion or nonverbal conduct by a person intended as an assertion. A machine such as the barograph is not making or intending to make an assertion when it creates a record of an event; hence, the record is not a “statement” for purposes of the hearsay rule.
The President of the United States and the leader of a bordering foreign nation agreed that each should appoint three members to a special joint commission to deal with a wildlife problem. The President of the United States, acting in concert with the foreign leader, named the joint commission as a permanent enforcement agency for the regulations that were adopted by both nations. Although the President received prior congressional authorization to enter into this agreement, the Senate did not ratify the agreement by a two-thirds vote. The President then entered into an executive agreement with the foreign leader whereby the joint commission was granted adjudicative as well as enforcement powers with respect to a particular issue.
Is the executive agreement by the President valid?
A Yes, because the President has unlimited powers in entering into executive agreements.
B Yes, because the agreement is within the President’s powers in the area of foreign affairs.
C No, because the Senate did not ratify the executive agreement by a two-thirds vote.
D No, because wildlife is not an area left solely to presidential discretion.
B
The agreement is valid because it is within the President’s powers in foreign affairs. The Supreme Court has long accepted that the President has broad power to enter into executive agreements with foreign states, and this would be true especially where Congress has authorized the agreement, according to Justice Jackson’s opinion in Youngstown Sheet & Tube v. Sawyer (1952), which was adopted by the Court in Medellin v. Texas (2008). (A) is wrong because there are some limits on the President’s powers to enter into executive agreements. (C) is wrong because a two-thirds vote is not required for an executive agreement. (D) is a correct statement, because Congress has authority to act to preserve wildlife. That authority does not, however, deprive the President of the power to enter agreements of this sort.
A mother and father instructed their son who just turned age 14 to report to a community woodworking shop instead of school. A state law requires all children to attend school until the age of 16, and the woodshop does not qualify as a school under state law. Because the parents did not report their son’s absence, a truant officer visited the family and warned them that parents who willfully refuse to comply with the mandatory attendance law are subject to a $500 fine and up to 30 days in jail for each day of noncompliance. The parents listened, but informed the officer that they could not comply with the state law because of their religious views, under which woodworking is an essential spiritual pursuit. The following day, the 14-year-old again went to work in the community woodshop instead of to school. His parents were then arrested and charged with violating the state mandatory school attendance law.
At the parents’ criminal trial, which of the following may the court constitutionally consider in determining whether First Amendment protection applies to the parents’ views?
A Whether the parents’ belief system is related to an organized group that gathers regularly to express or celebrate the belief system.
B Whether the parents’ beliefs are derived from a traditional religion.
C Whether the parents’ belief system includes recognition of a supreme being.
D Whether the parents’ belief system occupies a place in their lives similar to that occupied by orthodox religious beliefs.
A mother and father instructed their son who just turned age 14 to report to a community woodworking shop instead of school. A state law requires all children to attend school until the age of 16, and the woodshop does not qualify as a school under state law. Because the parents did not report their son’s absence, a truant officer visited the family and warned them that parents who willfully refuse to comply with the mandatory attendance law are subject to a $500 fine and up to 30 days in jail for each day of noncompliance. The parents listened, but informed the officer that they could not comply with the state law because of their religious views, under which woodworking is an essential spiritual pursuit. The following day, the 14-year-old again went to work in the community woodshop instead of to school. His parents were then arrested and charged with violating the state mandatory school attendance law.
At the parents’ criminal trial, which of the following may the court constitutionally consider in determining whether First Amendment protection applies to the parents’ views?
A Whether the parents’ belief system is related to an organized group that gathers regularly to express or celebrate the belief system.
B Whether the parents’ beliefs are derived from a traditional religion.
C Whether the parents’ belief system includes recognition of a supreme being.
D Whether the parents’ belief system occupies a place in their lives similar to that occupied by orthodox religious beliefs.
While at a party, a wife came up behind a younger woman, grabbed her by her arm, and accused her of having an affair with the wife’s husband. The wife knew that her accusation was not true.
Of the following facts, which would be most helpful to the younger woman in a suit against the wife for intentional infliction of emotional distress?
A The wife knew that the younger woman is very religious, and her religious beliefs strongly condemn adultery.
B When the wife grabbed her arm, it caused the younger woman great pain and she has suffered an upset stomach from the trauma of it.
C Other people at the party overheard the wife’s accusation.
D The younger woman’s employer heard of the accusation and did not give her a promotion.
A
The wife’s knowledge of the younger woman’s religious beliefs would be most helpful in the woman’s suit. The tort of intentional infliction of emotional distress requires: (i) an act by defendant amounting to extreme and outrageous conduct; (ii) intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress, or a reckless disregard that the conduct would cause emotional distress; (iii) causation; and (iv) damages—severe emotional distress. The statement in (A) is most helpful to establish reckless disregard because it shows that the defendant knew of plaintiff’s peculiar susceptibility to such an accusation. Given her strong religious beliefs, the woman may have suffered severe distress (even though the accusation was not true) because the wife gave her every reason to think that she believed it to be true. (B) is incorrect because, while one of the damages in an action for battery may be for emotional suffering caused by the battery, the younger woman is suing for intentional infliction of emotional distress, which requires severe emotional distress from the outrageous nature of the conduct. (C) is not the best answer, because while evidence that it happened in front of other people may show the “outrageousness” of the conduct, an act is not outrageous just because it occurs in the presence of others. Furthermore, nothing in choice (C) establishes the wife’s intent. (D) is incorrect because this tort does not require proof of economic damages.
The owner of a semi-pro baseball team offered a former player a position as the team’s manager. During negotiations, the owner agreed to pay the manager $1,000 per week, but insisted that if the manager quit during the season, he would have to pay a “penalty” of $500 per week for each week that he did not manage the team, because it would cost the owner several thousand dollars to replace the manager during the season. The parties agreed in writing to those terms. The manager managed the team for 14 weeks with only mixed success. Nevertheless, with 10 weeks left in the season, he was offered and accepted a job as manager of a professional minor league baseball team. Fortunately for the owner of the semi-pro team, the manager’s replacement had great success with the team, causing attendance to skyrocket.
If the owner of the semi-pro team brings suit against the manager to recover $5,000, the amount due under the “penalty” provision, is the owner likely to prevail?
A No, because “penalty” clauses in contracts are not enforceable.
B No, because the owner of the semi-pro team was not harmed by his breach.
C Yes, because the manager can be penalized for a willful breach.
D Yes, because the “penalty” provision is enforceable.
D
The owner of the semi-pro team is likely to prevail. Although the $500 per week damages was denominated a “penalty” by the parties, in fact it operates as a reasonable liquidated damages clause. The parties to a contract may stipulate what damages are to be paid in the event of a breach if (i) damages are difficult to ascertain at the time the contract is formed, and (ii) the amount agreed on is a reasonable forecast of compensatory damages in the case of a breach. These conditions have been met here. The owner stated that if he had to replace the manager in the middle of the season, it would cost several thousand dollars, which seems to be a reasonable forecast of the compensatory damages. (A) is wrong because, while it is true that penalties will not be enforced, a court would not construe the provision here as a penalty since it meets the requirements above. (B) is irrelevant. In the case of a liquidated damages clause, actual damages suffered are not taken into account. Most courts hold that if a liquidated damages clause is valid, the plaintiff will receive the liquidated damages amount even if no actual money or pecuniary damages have been suffered. (C) is a misstatement of the law. The fact that the breach was willful does not affect the enforceability of the liquidated damages clause.
A new college graduate entered into an oral agreement with a freshman to lease the freshman her mini-refrigerator for a term of four years. The freshman was to pay the graduate $20 a month, of which $10 of the monthly charge was to be paid directly to the graduate’s parents, in satisfaction of a debt the graduate owed her parents. While the graduate was putting the agreement into writing she accidentally failed to include the agreement to pay her parents directly. The freshman also failed to notice that the direct payment provision was missing before she signed the contract, which the graduate signed.
If the parents bring an action against the freshman, which of the following will have the greatest effect on the outcome?
A Whether the parents were a party to the agreement between the graduate and the student.
B Whether the agreement between the graduate and the freshman was completely integrated.
C Whether the graduate was negligent in not discovering that the agreement omitted mention of the payment of money directly to her parents.
D Whether the freshman was negligent in not discovering that the agreement omitted mention of the payment of money directly to the parents.
B
The most critical factor will be whether the agreement was completely integrated. The effect of a completely integrated agreement, meaning that the writing embodies the entire agreement of the parties, is that evidence could not be introduced to show a prior or collateral oral agreement. (A) is incorrect because the parents need not be a party to the contract; they have rights as third-party beneficiaries. (C) and (D) are incorrect because the negligence of either of the parties has no bearing on whether the collateral oral agreement can be proved or enforced.
A professional painter and his apprentice, in business as a partnership, were hired to paint a store. Midway through the job they ran out of paint, so the painter lent his truck to the apprentice to pick up more. On his way to pick up the paint, the apprentice stopped at a post office along the way to mail a personal letter. On pulling out of the post office parking lot, he negligently ran into a parked car, causing extensive damage.
If the car owner brings a negligence action against the painter, will she prevail?
A No, because the apprentice is an independent contractor.
B No, because a bailor is not vicariously liable for the torts of his bailee.
C Yes, because the apprentice’s stop at the post office was not a frolic.
D Yes, because the apprentice was using the painter’s truck.
C
The car owner can recover because the apprentice was acting within the scope of the partnership business when he drove negligently. Vicarious liability for the conduct of another can arise in partnership and joint venture situations. Each member of the partnership is vicariously liable for the tortious conduct of another partner committed in the scope of the partnership’s affairs. As with respondeat superior situations, if the tortfeasor has gone off on a frolic of his own, he is no longer acting within the scope of the partnership and the other partners will not be liable. On the other hand, a minor deviation from the partnership activity will not take it outside of the scope of the partnership’s affairs. Here, the painter and the apprentice are partners in their painting business. The apprentice’s detour to a post office along the way simply to mail a letter did not take his activity outside the scope of the partnership’s affairs; hence the painter is vicariously liable simply because of his status as a partner. (A) is incorrect because the apprentice’s status as an independent contractor is irrelevant to this question. While the apprentice is, with respect to the person who hired him, an independent contractor, the apprentice is a partner rather than an independent contractor as to the painter. Because this question concerns the car owner and the painter, the apprentice’s status as to the person who hired him is irrelevant and would not save the painter from liability. (B) is a true statement (a bailor is not vicariously liable for the torts of his bailee). However, (B) is incorrect because it does not take into account the status of the apprentice and the painter as partners. It is because of their partnership status rather than their bailor-bailee status that the car owner might be able to recover. (D) is incorrect because the painter’s ownership of the truck is not enough to make him liable for the apprentice’s torts. Absent a statute to the contrary, a vehicle owner is not vicariously liable for the tortious conduct of another driving his vehicle.
A minor entered a liquor store and asked the cashier to let him purchase a case of beer for a party even though he was underage. The cashier agreed as long as he paid double the retail price for the beer as compensation for the risks of the sale. As the cashier started to ring up the transaction, an undercover officer who overheard them intervened and arrested them. The state criminal code provides that it is a felony to knowingly provide alcohol to any person under the age of 21.
If the state follows the unilateral theory of conspiracy, of what crimes can the minor and cashier be convicted?
A The minor can be convicted of solicitation and the cashier can be convicted of conspiracy to violate the statute.
B Both the minor and the cashier can be convicted of conspiracy to violate the statute.
C The minor cannot be convicted of either solicitation or conspiracy, but the cashier can be convicted of conspiracy to violate the statute.
D The minor cannot be convicted of either solicitation or conspiracy, and the cashier cannot be convicted of conspiracy.
C
The cashier can be convicted of conspiracy in a unilateral jurisdiction even though the minor can be convicted of neither solicitation nor conspiracy. Under the unilateral approach adopted by the Model Penal Code, the crime of conspiracy requires that only one party have genuine criminal intent, and may be shown by proof that the defendant agreed with another to commit a crime, even if the other person does not share the commitment. Thus, the fact that no other party to the conspiracy could be found guilty does not prevent the defendant from being convicted of conspiracy. Here, the fact that the minor is a member of the class that the statute was designed to protect prevents him from being found guilty of conspiracy. (B) is therefore incorrect. However, this fact has no bearing on the cashier’s liability for conspiracy under the unilateral approach. Thus, (C) is correct and (D) is incorrect. (A) is incorrect because the crime of solicitation is treated the same as conspiracy. If the solicitor could not be guilty of the completed crime because of legislative intent to exempt him, he cannot be guilty of solicitation of the crime. Because the minor is a member of the class intended to be protected by the statute, he cannot be found guilty of soliciting the cashier to complete it.
While executing a search warrant at the home of a suspected arsonist, the police heard a knock on the door. A plain clothes officer answered the door and found a young woman standing outside with a backpack in her hand. The woman asked for the owner of the home by name and was told that the owner was not available at the moment. The woman replied, “Give him this, and tell him thanks for the $8,000,” and she gave the officer the backpack. The officer opened the backpack and found eight hi-tech delay timers. The officer then identified himself as a police officer and placed the woman under arrest. He performed a quick patdown of the woman’s outer clothing. In her jacket pocket, the officer found a package that appeared to be (and later proved to be) heroin. In addition to arson-related charges, the woman was charged with possession of heroin. At trial, the woman’s attorney moved to have the heroin excluded from evidence.
How should the court rule?
A For the woman, because the warrant only entitled the police to search the premises.
B For the woman, because the heroin was seized during an unlawful arrest.
C For the state, because the heroin was seized during a lawful arrest.
D For the state, because searching the backpack was within the scope of the warrant.
C
The heroin was discovered during a search incident to a lawful arrest and is admissible. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. However, if the police have probable cause to arrest a person discovered on the premises, they may search him incident to the arrest. This search may be of the person and areas into which he might reach to obtain weapons or destroy evidence (his “wingspan”). The arrest of the woman was lawful because the presence of the timers she brought to the house gave the police probable cause to believe that she was involved in the arsons being investigated. Because the arrest of the woman was lawful, the police were entitled to conduct a search incident to that arrest. Such a search was permissible even though the police did not actually fear for their safety. Consequently, the heroin discovered as a result of this search is admissible, and the motion to suppress will be denied. (A) is incorrect because, although the warrant only authorized a search of the premises, this does not preclude the police from also searching persons found on the premises as to whom there exists probable cause to arrest. Once the woman was lawfully arrested, the police were fully entitled to search her incident to the arrest. (B) is incorrect because, as explained above, the arrest of the woman was lawful. Thus, the heroin cannot be suppressed as the product of an unlawful arrest. (D) is not as good a choice as (C) because whether the backpack was covered by the warrant to search the house is irrelevant to the woman’s charge. Once the woman relinquished possession of the backpack by giving it to the officer, she did not have a legitimate expectation of privacy in the object, nor did she have an expectation of privacy in the home (as it was not her home and she was not an overnight guest); hence, she did not have standing to object to the backpack being searched, even if it was not covered by the warrant to search the home.
