Mixed Questions - Set 32 Flashcards
A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer’s account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered.
On which grounds may the court set aside the entry of default?
A For the same limited grounds for which any court judgment may be set aside.
B Only if the court finds that the consumer could not have filed and served a timely answer despite using reasonable diligence.
C If the consumer demonstrates that there was good cause for his failure to file and serve a timely answer and that he has a viable defense.
D On any grounds that the court, in its discretion, finds just.
C
An entry of default may be set aside for “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense. (A) is incorrect because the grounds are not limited to the grounds required for setting aside regular court judgments. (B) is incorrect because that answer is also too limiting on the concept of “good cause shown.” For example, a default might result from an honest mistake of the attorney, but the entry of default may nonetheless be set aside if the attorney acts promptly to correct the mistake. (D) is incorrect because a majority of courts will also require a showing of a meritorious defense.
A college student from State A hit another car driven by a resident from State B when the college student was traveling through State B. The State B driver brought an action in State B state court against the State A college student, who has limited financial resources. The college student filed a motion to dismiss, claiming the State B court lacks personal jurisdiction.
What is the best argument to support the college student’s motion to dismiss?
A The college student did not take actions to purposely avail herself of State B simply by driving through State B.
B It is unfair, inconvenient, and highly unreasonable to require a college student with limited financial resources to defend the action in State B for financial reasons.
C The interstate judicial system’s interest in obtaining the most efficient resolution of the controversy is violated by requiring the college student to defend the action in the forum state.
D State B is not the proper venue to file this claim.
B
The best argument the college student has to defend a motion to dismiss for lack of personal jurisdiction is to argue that the fairness prong of the constitutional minimum contacts test is not met. In addition to sufficient minimum contacts with the forum state, personal jurisdiction must not offend “traditional notions of fair play and substantial justice.” The Supreme Court in International Shoe listed several factors relevant to assess the fairness factor, including the burden on the defendant in terms of convenience in defending the action. Here, the best argument out of the four choices listed is that it would be unfair, inconvenient, and highly unreasonable for a college student from State A with limited financial resources to defend the action in State B. Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent.” However, this is still the best argument to support the motion to dismiss for lack of personal jurisdiction. (A) is wrong because, to establish the contacts prong of the minimum contacts test, the defendant’s contact with the forum state must result in purposeful availment of the state, meaning the defendant took actions that were purposely directed toward the forum state and from which the defendant derived the benefits and protections of the state’s laws, such as using the roads in the state. Here, driving through State B was sufficient because it was a purposeful activity and she was protected by State B’s police and traffic laws while doing so. (C) is wrong because, although considering the interest in obtaining the most efficient resolution of the controversy is one of the factors the Supreme Court listed in assessing the fairness prong, it is inapplicable to the facts. Here, litigation in either State B or State A would likely be equally efficient. (D) is wrong because State B clearly is a proper venue, as it is the judicial district where the claim arose. Moreover, the question stated that the motion to dismiss was based on lack of personal jurisdiction, not lack of venue.
A developer owned a large urban property, which she subdivided into 10 lots. The developer conveyed Lot 1 to an architect by a deed that contained a restriction banning commercial use of the property. The developer subsequently conveyed Lots 2 through 7 to six separate purchasers. Each of the deeds to these purchasers also contained the restriction on commercial use. The architect left Lot 1 undeveloped, but the purchasers of Lots 2 through 7 all used their lots for commercial purposes. The developer subsequently conveyed Lot 8 to a florist. The florist’s deed contained the restriction banning commercial use of the lot, but he decided that he wished to use Lot 8 commercially. The developer retains ownership of Lots 9 and 10. The florist wants to bring suit to establish his rights to use Lot 8 for commercial purposes.
Which of the following best describes the parties the florist should join in his lawsuit?
A The developer only.
B The developer and the architect only.
C The other commercial users only.
D All landowners in the subdivision.
D
The florist should join all of the landowners in the subdivision in a suit to terminate the servitude on the grounds of abandonment. If a covenant in a subdivision deed is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan is found to have existed at the time she purchased her lot. In addition, a prior purchaser can enforce a restriction in a subsequent deed from a common grantor under either a third-party beneficiary theory or an implied reciprocal servitude theory. Under the implied reciprocal servitude theory, an implied reciprocal servitude attaches to the grantor’s retained land at the moment she deeds a lot with the restriction. Thus, all of the other landowners in the subdivision could potentially enforce the covenant as an equitable servitude against the florist. All parties would probably fail in an attempt to enforce the servitude, but the florist should join them now to avoid multiple litigation. (Note that had the other landowners tried to enforce the equitable servitude against the florist, they would all have been subject to the equitable defense of acquiescence, which provides that if a benefited party acquiesces in a violation of the servitude by one burdened party, he may be deemed to have abandoned the servitude as to other burdened parties. In addition, the other commercial users are subject to the defense of unclean hands. It is important to remember that these are defenses and do not terminate the servitude; therefore, it would be best for the florist to join all possible complainants in a suit to have the servitude declared extinguished.) (A) is wrong because, as explained, the other landowners also could try to enforce the covenant. (B) is wrong for the same reason. Although the architect has not violated the covenant and thus is not subject to the defenses possible against the other landowners, he and the developer are not the only possible plaintiffs (remember the question in effect asks who can bring suit, not who can win it). (C) is wrong because the developer and the architect can also bring suit. (Note that the above discussion applies only to sparing the florist from the enforcement of the restriction as an equitable servitude. The developer may try to enforce the restriction as a real covenant. She will, however, be limited to recovering damages, which might be very difficult to prove under the circumstances.)
A seller entered into a written contract to sell a tract of land to a buyer. The buyer was to pay $1,500 per month for five years, at which time the seller would deliver a warranty deed. The contract was silent as to the quality of title to be conveyed. After making 12 payments, the buyer discovered that a neighbor had an easement of way over the land, which was not discussed at the time the seller and buyer entered into the contract. The neighbor had not used the easement over the previous year because she had been out of the country. On the basis of the easement, the buyer wishes to cancel the contract.
Which party is more likely to prevail?
A The seller, because the neighbor’s easement has been extinguished.
B The seller, because the buyer has no basis on which to rescind the contract.
C The buyer, because the obligation to convey marketable title is implied.
D The buyer, because the seller has breached the covenant against encumbrances.
B
The seller is more likely to prevail because the buyer has no basis on which to rescind the contract. Absent a provision to the contrary, a contract for the sale of land contains an implied promise by the seller that she will deliver to the buyer a marketable title at the time of closing. This promise imposes on the seller an obligation to deliver a title that is free from reasonable doubt; i.e., free from questions that might present an unreasonable risk of litigation. Title is marketable if a reasonably prudent buyer would accept it in the exercise of ordinary prudence. An easement that reduces the value of the property (e.g., an easement of way for the benefit of a neighbor) generally renders title unmarketable. If the buyer determines, prior to closing, that the seller’s title is unmarketable, he must notify the seller and allow a reasonable time to cure the defect. If the seller is unable to acquire title before closing, so that title remains unmarketable, the buyer can rescind, sue for damages caused by the breach, or obtain specific performance with an abatement of the purchase price. However, the buyer cannot rescind prior to closing on grounds that the seller’s title is unmarketable. Where an installment land contract is used, the seller’s obligation is to furnish marketable title when delivery is to occur, e.g., when the buyer has made his final payment. Thus, a buyer cannot withhold payments or seek other remedies on grounds that the seller’s title is unmarketable prior to the date of promised delivery. Here, there is a valid easement on the property (see below), but the seller has four years in which to cure this defect. Thus, the buyer cannot yet rescind on grounds that title is unmarketable. (A) is incorrect because the neighbor’s easement has not been extinguished. An easement can be extinguished where the owner of the privilege demonstrates by physical action an intention to permanently abandon the easement. Mere nonuse is not sufficient to terminate an easement, unless the nonuse is combined with other evidence of intent to abandon it. Here, the fact that the neighbor did not use the easement for a year because she was out of the country does not establish her intent to abandon the easement. (C) is incorrect because, although the law implies in every land sale contract a covenant that title will be marketable, the seller has until the time of delivery to cure the defect. (D) is incorrect because the deed has not yet been delivered. The covenant against encumbrances is a covenant contained in a general warranty deed which assures that there are neither visible encumbrances (e.g., easements) nor invisible encumbrances (e.g., mortgages) against the title or interest conveyed. This covenant is breached, if at all, at the time of conveyance. Here, the deed has not yet been delivered, and thus this covenant has not yet been breached.
A plaintiff sues her employer for sexual harassment. During the trial, the plaintiff attempts to introduce into evidence company records that include written complaints from other employees alleging that they too were sexually harassed by the employer. The defense objects to the admission of the records on the basis of hearsay.
Should the objection be sustained?
A Yes, because the records are hearsay not within any recognized exception.
B No, because the records qualify under the business records exception.
C No, because the records qualify as a statement against interest.
D No, because the records are not hearsay.
A
The court should sustain the objection because the records are hearsay not within any recognized exception. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. Here, the records are being offered to prove that the employer sexually harassed other employees, to support the plaintiff’s contention that the employer sexually harassed her. Because the statements are offered to prove the truth of the matter asserted, they are hearsay, and because there is no recognized exception that would allow the records to be admitted, they must be excluded. Therefore, (D) is incorrect. (B) is incorrect. The business records exception applies to records or writings made in the course of a regularly conducted business activity by one who was under a duty to do so. Here, because the employees were not under a business duty to file their claims, the business records exception does not apply to their statements. (C) does not agree with the facts. A statement against interest is a hearsay exception allowed when a declarant is unavailable. Here, there is no showing of unavailability, and also the employees said nothing against their interests.
A state court is LEAST likely to take judicial notice of which of the following?
A The blood type that occurs with greatest frequency in the population is O-positive.
B Main Street, upon which the courthouse is situated, runs north and south.
C The sun rose at 6:52 a.m. on Friday, December 12, of last year.
D In Australian law, there is no private action for environmental issues.
D
The state court is least likely to take judicial notice of the Australian law. Most state courts will not take judicial notice of the law of a foreign country. Note that foreign law is a legislative fact and thus would not be covered by Federal Rule 201, which covers only adjudicative facts, even if the case were in federal court. (A) and (B) are incorrect because they are notorious facts (i.e., facts of common knowledge in the community), and (C) is incorrect because it is a manifest fact (i.e., a fact capable of certain verification by resort to easily accessible sources of unquestionable accuracy). Both manifest and notorious facts are appropriate for judicial notice, and under the Federal Rules, notice must be taken of these facts if so requested by a party.
The President of the United States entered into a bilateral agreement with another country regarding the probate of estates. One part of the agreement provided that, should a citizen of that country die owning property in the United States, the executor or administrator appointed in that country should have the power to deal with such property and a separate American administrator or executor need not be appointed. A citizen of that country died, owning property in the United States. His will appointed his brother, a citizen and resident of the country, as executor. A law in the state where his property was located requires that all property left by will within the state be probated by an executor or administrator who is a resident of the state. The brother desires to act as executor of the estate and properly distribute the property in accordance with the decedent’s will,
Should the brother be allowed to act as executor, notwithstanding the state statute?
A No, because the probate of real property within the state is within the exclusive purview of the state.
B No, because an executive agreement is not a treaty, and state law takes precedence over executive agreements.
C Yes, because executive agreements supersede state laws.
D Yes, because executive agreements are entitled to full faith and credit.
C
Executive agreements with other governments fall within the President’s broad power over foreign relations and will supersede conflicting state laws. Although executive agreements are not expressly provided for in the Constitution, they have become institutionalized in practice. Because they are not ratified by the Senate as treaties are, they cannot override a valid federal statute, but they are supreme over conflicting state laws to the same extent as a treaty. (A) is incorrect even though the probate of property generally is within a state’s exclusive power as far as regulation is concerned. Where this activity also falls within the federal government’s exclusive power over international affairs, any conflicting state regulations are superseded. (B) is incorrect because, as against state law, an executive agreement has the same effect as a treaty. Unless in violation of federal constitutional provisions, an executive agreement takes precedence over state law. (D) is incorrect because the Full Faith and Credit Clause of Article IV, Section 1 requires only that each state recognize the laws and judicial proceedings of every other state. It has no application to executive agreements made by the President.
To provide jobs for its citizens, stimulate future tourism, and help the environment, a state legislature enacted a statute authorizing the state’s department of parks and recreation to hire up to 5,000 persons to plant trees on land in the state that has been denuded of trees by overlogging. Among other things, the statute provides that resident aliens may be employed only if no United States citizens are available to fill the necessary positions.
In a challenge to the constitutionality of that provision by a plaintiff with standing to raise the claim, which of the following constitutional provisions would be most helpful to the plaintiff?
A The Privileges or Immunities Clause of the Fourteenth Amendment.
B The reserved powers of the state under the Tenth Amendment.
C The Equal Protection Clause of the Fourteenth Amendment.
D The Fourteenth Amendment Due Process Clause.
C
The Equal Protection Clause of the Fourteenth Amendment is the most helpful provision. State classifications based on alienage that do not involve alien participation in the self-government process are suspect under the Equal Protection Clause and are subject to strict judicial scrutiny. They will be upheld only if the government can show that the classification is necessary to achieve a compelling state interest. While the state’s interests here in providing jobs, stimulating future tourism, and helping the environment may be compelling, it cannot be said that these goals can be achieved only by discriminating against resident aliens. Thus, the legislation would be found unconstitutional under the Equal Protection Clause. (A) is wrong because the Privileges or Immunities Clause of the Fourteenth Amendment protects the privileges and immunities of United States citizens, not aliens. (B) is wrong because, even if applicable, the Tenth Amendment could only help the state (by reserving to the state powers that are not delegated to the federal government); it does not carry any prohibitions. (D) might provide a viable argument, as a statute that affects a fundamental right can be struck down under the Due Process Clause under the same strict scrutiny test as set out above under the Equal Protection Clause. However, it is a less direct argument than (C) because strict scrutiny applies under the Due Process Clause only if the challenger can show that a fundamental right is involved.
A wholesaler persuaded a retailer to order a line of dolls for the Christmas season, even though the retailer was skeptical of the dolls’ marketability. The contract provided that the retailer would pay $1,500 for its order of 100 dolls if they sold during the Christmas season. Some dolls did sell, but on February 12, the retailer had 80 of them in inventory. He sent the wholesaler notice that he would be returning the 80 dolls. The wholesaler replied that it did not want the dolls back, that the retailer should continue to try to sell them. Despite this reply, the retailer sent the wholesaler a check for $300 and shipped the dolls to the wholesaler, who refused to accept them but did accept the check. Thereafter, the retailer held the dolls at his warehouse. The wholesaler brought an action to recover the $1,200 balance.
Will the wholesaler likely recover?
A Yes, because the retailer still has the dolls in his possession.
B Yes, because it was not a condition precedent that the dolls be sold during the Christmas season, but merely a convenient time for payment.
C No, because sale during the Christmas season was a condition precedent to payment.
D No, because accepting the $300 constituted a waiver of any rights that the wholesaler may have had to enforce the contract.
C
The wholesaler will not recover the $1,200 because sale during the Christmas season was a condition precedent. A condition precedent is one that must occur before an absolute duty of immediate performance arises in the other party. Based on the facts here, the intent of the parties was that the retailer would have to pay for the dolls only if they sold during the Christmas season. Sale during that time was a condition precedent to payment. Thus, the retailer had no obligation to pay for the 80 dolls that had not sold by February 12 (well after the Christmas season). Thus, (C) is correct, and (B) is wrong. (A) is wrong because the wholesaler refused the retailer’s tender of the dolls, and the retailer is just holding them awaiting the wholesaler’s instructions. (D) is wrong because accepting the check did not result in a waiver of any rights the wholesaler may have had. If a monetary claim is uncertain or subject to a bona fide dispute, an accord and satisfaction can 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 is no indication that the retailer stated that the check was payment in full.
On January 2, a retiree borrowed $1,000 from a friend, agreeing in writing to repay the loan within a year. In September, it became clear to the retiree that he would have difficulty meeting the deadline, and so he approached an acquaintance who owned a print shop with the following proposition: He would perform 200 hours of work for the print shop owner within six months at the special rate of $5 per hour, if the print shop owner would agree to pay $1,000 for the entire 200 hours to the retiree’s friend on January 1. The print shop owner agreed. By January 1, the retiree had worked only five hours for the print shop owner, and the print shop owner refused to pay the retiree’s friend because the retiree had not worked the agreed-upon number of hours. The retiree told the print shop owner that it was “no problem,” and to just hold on to the money until he worked the full 200 hours, and then pay his friend. The print shop owner agreed.
Subsequently, the retiree’s friend learned of the arrangements between the retiree and the print shop owner and sued the print shop owner for $1,000.
What is the probable result of this action?
A Judgment for the friend, because he was a third-party beneficiary to the original contract between the retiree and the print shop owner and there was no consideration for the modification of the contract.
B Judgment for the friend, because he was a third-party beneficiary to the original agreement between the retiree and the print shop owner and he did not agree to the modification.
C Judgment for the print shop owner, because his contract was with the retiree and therefore he cannot be liable to the friend.
D Judgment for the print shop owner, because the original agreement had been modified before the friend knew of the original agreement.
D
A court will find for the print shop owner because the modification occurred before the friend learned of the agreement. The friend is a third-party beneficiary to the contract between the retiree and the print shop owner. A third-party beneficiary can enforce a contract only after his rights have vested. Rights vest when the beneficiary: (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise. An agreement affecting a third-party beneficiary may be modified without the third party’s consent if his rights have not yet vested. Since the friend did not know of the agreement between the retiree and the print shop owner when they agreed to the change, his rights had not yet vested. Thus he has no right to enforce the original version of the agreement between the retiree and the print shop owner. In any case, the print shop owner is under no obligation to pay at this point because the retiree has not yet worked the full 200 hours. (A) is wrong. It is true that the friend was a third-party beneficiary, but the retiree and the print shop owner were free to modify the agreement because the friend’s rights had not yet vested. The fact that there may be no consideration for the modification may be an issue as between the two parties to the contract if one of them tries to enforce the modification, but it does not give the friend any right to challenge the modification because he is not a party to the contract. (B) is wrong because, as stated above, although a third-party beneficiary must agree to any modification if his rights have vested at the time of the modification, the friend’s rights had not vested when this agreement was modified. (C) is wrong because it is too broad a statement; under some circumstances, there can be liability to the third party.
A small cruise ship struck a whale swimming underwater, causing the ship to suddenly lurch sideways. A passenger on the ship who was walking down a corridor lost his balance and bumped his head on the edge of a doorway. Because of a previously existing medical condition that made him susceptible to bleeding on the brain, he suffered a cerebral hemorrhage and permanent mental impairment, despite prompt medical attention on the ship.
The passenger brought suit against the cruise ship owner for his damages. At trial, the passenger presented evidence of how he was injured as he walked down the hallway, his previous medical condition, and his medical expenses and other damages. The cruise ship owner presented evidence that the cruise ship was following its approved route and that the whale could not have been detected before impact, and that the bump would not have injured someone in ordinary health. At the close of the evidence, the cruise ship owner moved for a directed verdict.
How should the court rule?
A Grant the motion, because there is no evidence that the crew operated the ship negligently.
B Grant the motion, because the cruise ship owner introduced uncontroverted evidence that a person in normal health would not have been injured by the bump.
C Deny the motion, because the jury could find that the cruise ship owner, as a common carrier and innkeeper, breached its high duty of care to the passenger.
D Deny the motion, because the fact that the severity of the passenger’s injuries was not foreseeable does not cut off the cruise ship owner’s liability.
A
The court should grant the cruise ship owner’s motion because the passenger has not established a prima facie case of negligence against the cruise ship. To establish a prima facie case for negligence, a plaintiff must show (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. As a common carrier and/or an innkeeper, the cruise ship owed its passengers a high duty of care, and therefore would be liable for slight negligence. However, the passenger has offered no evidence to establish that the cruise ship employees breached that duty, and res ipsa loquitur is not applicable here because the collision with the whale swimming underwater is not the type of event that would occur only as a result of negligence. Because the passenger failed to establish breach of duty, the court should grant the cruise ship owner a directed verdict. (B) is incorrect because the cruise ship owner does not need that evidence to prevail. While evidence that a person in normal health would not have been injured by the bump supports the cruise ship’s other evidence that it exercised due care, it is not necessary because the passenger has failed to offer evidence that the cruise ship owner breached its duty. On the other hand, if the cruise ship owner had breached its duty of care to its passengers, the fact that a person in normal health would not have been injured by the bump on the head would not be a defense to liability. If a defendant’s negligence causes an aggravation of a plaintiff’s existing physical illness, the defendant is liable for the damages caused by the aggravation. (C) is incorrect because, as discussed above, the passenger has failed to present evidence that the cruise ship owner breached the high duty of care that it owed to its guests. (D) is incorrect even though it is a true statement of law, as discussed above. The reason the cruise ship owner prevails is because the passenger has failed to establish a prima facie case.
A bookstore owner entered into an agreement with a building contractor to have a facade attached to the front of his bookstore. The contractor constructed the facade and attached it to the storefront, using plans prepared by himself and his own employees. After completing the work, the contractor was paid the contract price by the bookstore owner. A week later, a woman was walking past the front of the bookstore when the facade and a portion of the original building collapsed, striking and injuring her.
The woman sued both the contractor and the bookstore owner for damages arising from her injuries. The parties stipulated that the attachment of the facade to the storefront caused the building to collapse and that the bookstore owner was not negligent in selecting or supervising the contractor.
If the woman recovers against the bookstore owner, does the latter have any right of action against the contractor?
A Yes, because the bookstore owner’s conduct was not a cause in fact of the injuries to the woman.
B Yes, because the woman recovered from the bookstore owner on the basis of vicarious liability.
C No, because the bookstore owner selected the contractor to perform the work.
D No, because payment for the work without reservation was acceptance by the bookstore owner.
B
The bookstore owner has an action against the contractor for indemnification because the woman’s recovery against the bookstore owner was based on vicarious liability. While the general rule is that a principal is not vicariously liable for the torts of an independent contractor, a broad exception applies when the duty of care is nondelegable on public policy grounds, such as a landowner’s duty to make his premises safe. Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. Where one is vicariously liable for the torts of another, the former has a right of indemnity against the latter. Here, the bookstore owner was not directly liable to the woman in his capacity as owner of the property because he exercised due care in selecting the contractor, so the judgment against him was on the basis of vicarious liability for any negligence by the contractor, because the bookstore owner’s duty to keep his building safe to passersby was nondelegable. Thus, answers (C) and (D) reach a wrong result, and do not address the basis on which the bookstore owner was liable. (A) is incorrect because the bookstore owner, by hiring the contractor, was a cause of fact of the woman’s injuries (i.e., but for the bookstore owner’s hiring of the contractor, the woman would not have been injured). However, that does not address the theory on which the woman recovered against the bookstore owner.
Two people agreed to steal a valuable painting that they knew was hanging in the victim’s home. One would wait in the car with the engine running to ensure a quick getaway, while the other would break into the victim’s home and steal the painting. The burglar broke into the home and reached the victim’s library, where the painting was hanging. On the desk he noticed a large vial that appeared to contain cocaine. Thinking he could sell the cocaine and split the proceeds with the getaway driver, the burglar grabbed the vial and stuffed it in his pocket. He then took the painting off the wall and hurried back to the waiting car. The police arrived at that moment and apprehended the pair. A search incident to arrest turned up the vial of cocaine in the burglar’s possession.
The getaway driver is charged with being an accomplice to the unlawful possession of cocaine with intent to distribute. Will the driver likely be found guilty?
A Yes, because she is liable for all crimes resulting from the conspiracy.
B Yes, because the conspiracy was to steal items for resale.
C No, because the conspiracy did not involve the possession or sale of cocaine.
D No, because the burglar was the person who possessed the cocaine.
C
The getaway driver should be found not guilty. At common law, once a conspiracy has been entered into, each conspirator, by virtue of her participation in the conspiracy, may be charged with “aiding and abetting” the commission of crimes by her co-conspirators and therefore may be liable for those crimes as an accomplice. Even if the conspirator did not have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the reasonably foreseeable crimes of all other co-conspirators that were committed in furtherance of the conspiracy. However, in the instant case, the getaway driver did not know of the theft of the cocaine, and, as a result, would not have the requisite mental state as an accomplice. The conspiracy doctrine discussed above also would not apply, as the crime of possession of cocaine with the intent to deliver would neither be in furtherance of the burglary nor a reasonably foreseeable result of the burglary. (A) is incorrect because it is too broad a statement. A conspirator is not criminally liable for all crimes resulting from the conspiracy. As discussed above, to be charged with a crime that grew out of the conspiracy, the additional crime must be both foreseeable and committed in furtherance of the conspiracy. (B) is also incorrect. Although a bit of a close call, the crime of possessing cocaine with the intent to distribute is a separate act from burglary, and a crime involving drug possession is not a crime ordinarily arising out of this type of burglary. It is this lack of foreseeability that makes (B) an incorrect choice. Finally, (D) is incorrect. The criminal liability of a conspirator for acts of a co-conspirator arises under the theory of accomplice liability. An accomplice need not have performed the criminal act himself to be held criminally liable for the criminal act of the principal. Thus, the fact that the actual burglar meets the definition of a principal is irrelevant.
A driver was traveling through an area plagued with a high incidence of burglaries and assaults. Acting pursuant to a police department plan to combat crime by the random stopping of automobiles in the area between midnight and 6 a.m., a police officer stopped the driver and asked him for identification. As the driver handed the officer his license, the officer directed a flashlight into the automobile and saw what appeared to be the barrel of a shotgun protruding from under the front seat on the passenger side of the car. The officer ordered the driver from the car, searched him, and discovered marijuana cigarettes and a shotgun.
At the driver’s trial for unlawful possession of narcotics, should his motion to suppress the use of the marijuana as evidence be sustained?
A Yes, because the marijuana was discovered as a result of the unlawful stopping of the driver’s automobile.
B Yes, because the use of the flashlight constituted a search of the interior of the driver’s automobile without probable cause.
C No, because the officer’s conduct was consistent with the established police plan.
D No, because the discovery of the gun in plain view created the reasonable suspicion necessary to justify the arrest and search of the driver.
A
The driver’s motion to suppress should be sustained. Because stopping a car is a seizure for Fourth Amendment purposes, police generally may not stop a car unless they have at least a reasonable suspicion that a law has been violated. Even absent that suspicion, police may set up roadblocks to stop cars if (i) the cars are stopped on the basis of some neutral, articulable standard, and (ii) the stops are designed to serve a purpose closely related to a particular problem arising from automobiles and their mobility. [See Indianapolis v. Edmund (2000)] The use of a checkpoint to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety is unconstitutional. Here, the police did not have a reasonable suspicion that the driver had violated any law, and the driver was not stopped on a neutral basis at a roadblock set up to detect problems related to automobiles. The driver was stopped “randomly” to detect general criminal activity. Thus, the stop was improper and thus the marijuana would be inadmissible under the exclusionary rule. (B) is wrong because if the car had been properly stopped, the use of the flashlight would not have been improper. (C) is wrong because the established police plan cannot overcome the constitutional objection to the random stopping. (D) is wrong because the stopping of the car was improper. If it had been proper, the subsequent search would have been proper because it would have been based on probable cause.
