Criminal Law MBE Practice Test 2017
Three men in masks entered a bank to commit an armed robbery. A bank guard quickly pulled his gun and told the men to stand down. One of the robbers began to put his hand in his pocket, which the guard believed indicated that the robber was going for a gun. The guard promptly shot the robber dead. The police entered at that moment and arrested the other two robbers. Both men were arrested for robbery and for the murder of the third robber. The prosecution claimed that this was allowed under the felony murder rule. What will be the most likely outcome of the murder charges against the two robbers?
It is generally a matter of policy that the courts do not extend the vicarious liability of the felony murder rule to a case where an accomplice is killed. This is extending the scope of strict liability too far when the resulting death was the exact opposite of anything intended. Furthermore, in this case the actions of the robbers were not depraved enough - they did not start a gun battle; the only shot was by the guard. Also, the accomplice did not kill anyone and thus it is improper and stretching things to attribute murder vicariously to his co-conspirators. Certainly, they did not act as the agent of the bank guard. See Commonwealth v. Redline, 391 Pa. 486, 509 (Pa. 1958 ), which remains a leading authority on this issue. Shepardize Redline to get many more citations to this exception to the felony-murder rule. See also, Wayne R. LaFave, Substantive Criminal Law § 14.5(d) at pp. 456-58 (2nd ed.2003) (stating that "it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer or a bystander") (footnotes omitted). Accord, Davis v. Fox, 735 SE 2d 259 (W. Va. 2012); Williams v. State, 818 A. 2d 906 (Del. 2002).
A man and a woman got in the man’s car to go visit friends. The man had a few martinis during the preceding hour. It was lightly raining but he insisted on driving. When approaching a slippery curve on a winding roadway he lost control and crashed the car into a tree. He was traveling 10 miles above the speed limit. His passenger died and he was charged with involuntary manslaughter while driving DUI. The police took his blood sample at the hospital and his blood alcohol level was .07, right below the threshold level of .08 used for determining sobriety. He had passed a field sobriety test at the scene. He was also cited for speeding and driving too fast for conditions. Which of the following will the prosecution most likely be able to prove beyond a reasonable doubt?
This is the most likely outcome. He was driving too fast for conditions, and not slowly enough for the slippery roads. By going 10 miles over the limit on a winding road in a steady rain, he killed someone while committing an unlawful but not felonious act, i.e., going too fast for conditions and the violation of speeding.
A man was arrested and charged with first-degree murder. Police say that he killed his wife about two minutes after she returned home from a social evening. He had been drinking straight shots of alcohol for several hours before that. He claims that he was waiting to talk and not kill her. When she did come home, he was in an extremely intoxicated condition. He complained of her whereabouts and she responded by taunting him about his sexual deficiencies and uncontrolled drinking habits. He responded by picking up his gun from his desk drawer and shooting her. Will the prosecution likely succeed in its attempt to convict him of first-degree murder?
Because first-degree murder requires proof of a premeditative kind of specific intent, it may be one of the easier offenses in which to negate the intent element by proof of voluntary intoxication. The intoxication in this case appears to have been severe enough to rob the defendant of his ability to premeditate and deliberate. This does not work as a defense if he already had the specific intent to murder his wife but was drinking just to get up the nerve. But there are no facts in this case to indicate that possibility.
The defendant faced trial for first degree murder. His behavior was erratic, however, and a treating physician informed the court prior to trial that the defendant was more likely than not incompetent to stand trial. The state statute said that defendant was presumed competent to stand trial unless he proved incompetency by clear and convincing evidence. Defendant failed to meet the clear and convincing standard, and the trial court found him competent under the statute. After being convicted in a jury trial, the court sentenced him to death. On appeal, the U.S. Supreme Court issued a writ of certiorari. Will the Supreme Court affirm the finding that the defendant was competent to stand trial?
The Supreme Court has ruled that where the defendant proves that he or she is ‘more likely than not’ incompetent to stand trial, the prosecution cannot go forward. This is called the preponderance of the evidence standard. To make him go to trial because he could not prove the more demanding standard of clear and convincing is a denial of due process. There are important reasons why an incompetent person should not be tried, such as his or her basic inability to communicate effectively with counsel may leave him or her virtually paralyzed in putting forth a defense. See Cooper v. Oklahoma 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (clear and convincing test for incompetency is unconstitutional). The clear and convincing standard requires proof that it was “highly probable” that the fact has been proved. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).
A regular patron of a busy coffee shop one day spotted a small billfold on the floor. She picked it up and found that it contained $2,000 in cash and a valuable diamond ring that was taped to inside flap. Instead of turning it over to the restaurant or the police, she took it home and laid it in her nightstand, where it set for two months. During that period, the owner of the billfold placed several ads in the newspaper and had posted a notice for a reward prominently in the coffee shop. A customer who saw the notice remembered seeing the patron pick up a billfold on the floor a few months back, and he reported it to the police. The police got a warrant and found the billfold and its original contents still sitting in the patron’s nightstand. She was arrested for criminal theft. She defended by arguing that she intended to return the money, and that’s why she never spent or moved it. Is this a theft under most modern theft statutes?
Reasonable steps were available here to return the property to the owner. All she had to do was notify the restaurant that she was holding it and asking them to let him know if someone was looking for it. This was too easy under these circumstances to ignore – it just wasn’t that hard to find the owner in this case. The fact that she took it away and secreted it when he could have found the owner is evidence of criminal intent. The fact that, as a regular customer, she did not respond to the notice posted in the coffee shop makes it even more incriminating against her.
A state statute made it a crime to be addicted to the use of narcotic drugs. A man was arrested and charged with the crime. Two officers testified that they examined “track” marks on the defendant’s arms and wrists, and that the man admitted to using drugs. However, he testified and denied saying that to the officers; instead, he said that he was having an allergic reaction. The trial court instructed the jury that it could find the man guilty of the crime on proof that he was observed to be using drugs and appeared to be addicted to narcotics. The jury found him guilty based on the observed track marks and the man was sentenced to six months of incarceration in a state penitentiary. He appealed on the basis that this was cruel and unusual punishment prohibited by both the state and federal constitutions. Will the conviction likely be reversed?
The statute created a “status” crime because it did not require the specific proof of any antisocial conduct. It instead punished the illness of narcotics addiction. It made it a crime to suffer from an illness. See Robinson v. California, 370 US 660 (1962).
The police were called to a domestic dispute. The wife told police that her husband was abusive and that he was a heavy cocaine user. The husband was present and denied the allegation. Police asked for permission to search the premises for drugs, which was consented to by the wife. The husband, however, refused to consent to the search. The police went ahead anyway and found drugs in the husband’s belongings. After being arrested on drug charges, the husband filed a motion for suppression of the evidence based on lack of consent. What should be the likely decision of the trial court?
The Supreme Court has ruled that when both occupants are present and one of them consents but the other refuses consent, the refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. See Georgia v. Randolph, 547 U.S. 103 (2006).
A federal statute makes it a crime for anyone to “knowingly” use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or federal regulations. A restaurant owner purchased food stamps from a undercover federal agent several times for a price below face value. At trial, the judge refused to charge the jury that this was a specific intent crime requiring proof that the defendant knew that he was acting illegally. The government urged that no mens rea, or "evil-meaning mind” had to be proved. The court simply told the jury that “knowingly” means that the Defendant realized what he was doing, and did not act through ignorance, mistake, or accident. The owner was convicted and appealed. What will the federal appellate court likely decide regarding the lower court’s interpretation of the criminal intent required under the statute?
The government must prove knowledge of illegality to get a conviction. It must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. The government does not have to show that he had knowledge of specific food stamp regulations. The government does not have to prove the defendant’s personal state of mind. Rather, as in any other criminal prosecution requiring mens rea, the proof is found, if any, in the facts and circumstances surrounding the case. See Liparota v. United States, 471 US 419 (1985).
Two women, a cashier and an accountant, worked closely together in the accounting department of a large retailer. Both were defrauding the company by separate schemes. The cashier was issuing checks to certain persons and then splitting the proceeds with them. The accountant was making certain expense vouchers that she would issue to persons not entitled to reimbursement, and then she would share the proceeds with them. Both women assisted each other in the making and processing their respective checks and vouchers each month, but each believed that the other’s documents were legal. When things started to unwind, the police discovered both plots and arrested both women for criminal fraud and theft. They also arrested the women for a felony conspiracy to act together in defrauding their company. They both defended against the conspiracy charge. What is the likely outcome of their defense of the conspiracy charge?
There was no agreement between them regarding the commission of a fraud. There must be an agreement to a common scheme or plan, which there was not here, therefore there is no conspiracy. See, for example, United States v. Rosenblatt, 554 F. 2d 36 (2d Cir. 1977)
Local police received an anonymous letter that contained statements that a married couple was engaged in drug trafficking and were storing large amounts of contraband in their basement. The letter did not say how the writer personally knew that there were drugs or where they were stored. The investigating detective drew up an affidavit of probable cause based on the statements in the letter and presented the request for a search warrant and the affidavit to a magistrate judge. The magistrate judge signed a search warrant based on the affidavit. The police raided the home and found several pounds of cocaine in the basement. The defendants filed a motion to suppress the evidence based on insufficient cause to issue a warrant. The state courts rejected the suppression motion. What would the U.S. Supreme Court most likely decide?
Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral magistrate to decide to issue a search warrant. Here an anonymous letter makes conclusions but does not contain any statement showing that the information was acquired through the informant’s firsthand or personal knowledge. See People v. Gates, 423 NE 2d 887, 85 Ill.2d 376, 383-84, 423 N.E.2d 887 (IL Supreme Court 1981), discussing and citing to, Aguilar v. Texas, 378 US 108, 113, 114, 115 (1964). Although the affiant does not need personal knowledge, it must be alleged how the informant knew to say that the narcotics were where he claimed they were, and the affiant should explain the underlying circumstances from which he concluded that the informant was "credible" or his information "reliable.” Aguilar v. Texas, at 114-15.
The manager of a franchise restaurant had authority to deposit the cash earnings in the bank each day. She also had the authority to sign checks under $500 without a co-signature. Over a three-year period she skimmed about $100,000 in cash from the cash deposits and from the checking account by writing cash withdrawals to herself a few times each month. A new management firm took over and audited the books, finding the irregularities. They reported the matter to the police, and after questioning the manager admitted to her skimming of the account. The police had evidence to arrest her for which of the following?
This is embezzlement, which is the fraudulent conversion of property of another by one who is already in lawful possession of it. This is distinguished from larceny in that with larceny there is trespassory taking of the property of another with the intent to deprive the owner of it. There is no trespassory taking in embezzlement because the embezzler already had lawful authority over the money when the improper conversion of the money occurred.
A wife told her husband that she had extramarital relations with one of his friends, who was also his co-worker. The husband was enraged but “cooled off” by the next day when he went to work. At work, he approached the adulterous friend and asked why he did it. The so-called friend replied that the husband was a cuckold, the laughing stock of the office, and that he should open his eyes to the many sexual encounters that his wife had had behind his back. In a fit of rage, the husband returned home and violently strangled his wife to death. The stories of widespread infidelity were not true. The state prosecuted the husband for first degree murder but he defended on the basis that he acted in a heat of passion. Which of the following best describes the criminal liability of the defendant?
Although the husband’s heat-of-passion cooled down by the time he went to work, the statements at work by the adulterer himself triggered another heat of passion. A reasonable husband in the same circumstances would have been similarly triggered, so that this is voluntary manslaughter and not murder.
A pedestrian found an elderly woman lying on the ground conscious but bruised from an attack and mugging that occurred a few minutes earlier. The woman related that the thugs who attacked her took her purse. However, she pulled out a money wallet and told him that they did not find the wallet, which had $2,000 cash in it. After calling 911 to get help for the woman, the pedestrian snatched the wallet from the woman’s hands and ran off. It happened so quickly that the woman had no time to react. The authorities caught him soon thereafter, and charged him with robbery and theft charges. What will be the most likely outcome of the robbery charge?
The weight of authority is that a snatching does not qualify for the element of using force, violence or intimidation. When the thief snatches the property so quickly that the victim can offer no resistance this is considered to be insufficient force to support a robbery conviction. See People v. Patton, 389 N.E.2d 1174 (1979) (purse snatching; purse gone before victim realized what was happening).
A police detective received an anonymous call that marijuana was being grown in someone’s home, but no other details were given. She went to the home with an investigative team including a drug-sniffing dog. On the front porch of the home the dog began pacing back and forth frantically, which indicated smelling illegal drugs. The team retreated while some of them went to get a warrant. A warrant was issued based on the dog’s behavior. The search inside revealed large quantities of marijuana. The homeowner was arrested. Through counsel, he filed a motion to suppress based on the assertion that the use of the dog was an illegal search without probable cause thus rendering the warrant invalid. Should the court suppress the evidence?
An anonymous call with insufficient detail of the underlying circumstances did not establish probable cause. The taking of the dog to the front porch was an intrusion against the property interests of the owner. The home stands at the core of protection under the Fourth Amendment. The curtilage is part of the home itself. This was an illegal search of the curtilage of the home, making the warrant illegal also. See Florida v. Jardines, 569 U. S. ____ (2013).
A defendant was charged and convicted of felony murder as a participant in a robbery in which the store clerk was murdered by his accomplice. The authorities then indicted and convicted him of robbery with a firearm. The two prosecutions were not the same offense because felony murder could be proved by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. However, the prosecution acknowledged that it was necessary for all the ingredients of the underlying felony of robbery with a firearm to be proved in the felony-murder trial. Will the defendant prevail on appeal in getting the robbery with a firearm conviction dismissed with prejudice on the basis of a double jeopardy violation?
The U.S. Supreme Court has held that the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. See Grady v. Corbin, 495 US 508 (1990); Harris v. Oklahoma, 433 U. S. 682 (1977).
A state recidivist statute made it a felony punishable by life imprisonment without parole to be convicted for the sixth time of any form of criminal theft involving goods or money in excess of $500. A man’s record showed five prior convictions for different forms of theft, each one for property or cash in excess of $500 but usually not in excess of $1,000. On the sixth conviction for a similar violation, he was sentenced to life without parole. He challenged the sentence based on the Eighth Amendment prohibition against cruel and unusual punishment. He appeals all the way to the U.S. Supreme Court. Is the Supreme Court likely to invalidate the sentence on these facts?
One of the principles of the Eighth Amendment is that the punishment must be proportionate to the crime for which the defendant has been convicted. It is likely that the court would here follow the reasoning that it provided in Solem v. Helm, 463 U.S. 277 (1983) where the Court found similar conduct to be “relatively minor” and not deserving of the “penultimate sentence.” The harsh treatment is more than others in the state and other states have received for more serious crimes and criminal records.
A business woman rented a second-floor office suite for her consulting business. It was located above a bank on the first floor, and partly on top of the bank vault. She obtained blueprints and brought drilling tools into the office. She studied bank activities and determined when at night she might be able to drill through to the vault. She inserted microscopic binoculars through the floor to explore the layout below. Before she started drilling, however, she noticed that more security persons appeared to be in the bank at night. Growing suspicious and losing the desire to take such a great risk, she hid the tools in her garage at home and did nothing further. A few weeks later, she was arrested by police based on reports regarding her suspicious nighttime activities. Does she have a viable defense to the attempted burglary charges?
Generally, when the fear of being caught or some outside influence motivates abandonment, this will not be a defense. In this case, not only did she actually commit a completed attempted burglary by intruding into the space below with microscopic lenses, but she also then was motivated by fear of getting caught when she received additional information of the increased security in the bank. Furthermore, a defendant cannot abandon a completed attempt. See United States v. Crowley, 318 F.3d 401, 410-11 (2d Cir. 2003) when a defendant has completed the crime of attempt; i.e., has the requisite intent and has taken a substantial step towards completion of the crime, the crime of attempt has already been committed. US v. Young, 613 F. 3d 735, 746 (8th Cir. 2010). In addition, abandonment does not work when the accused proceeded well into the execution and then turned away because the plans are found to have been frustrated. Boyles v. State, 46 Wis. 2d 473, 175 N.W.2d 277 (1970); see W. LaFave & A. Scott, Handbook on Criminal Law 448 (1972). See also, Model Penal Code § 5.01(4).
A domestic day worker for a family decided to steal some jewelry that she had been admiring. She came back at night and entered a door that she knew was unlocked. She took several valuable pieces of jewelry that she had seen while performing her job duties. Someone in the house saw her leave with a bag and called the police. The worker was charged with burglary. Is there sufficient evidence to convict on the charge of burglary under the common law definition?
At common law, it was a burglary to break and enter the dwelling of another at nighttime with the intention of committing a felony therein. Here, all the elements were met. The breaking is accomplished by opening the closed door. Force or violence is not required to establish a breaking. The fact that she had authority during the day did not give her authority to enter at night so that it was still a breaking rather than an authorized entry. Stealing valuable jewelry would generally be a felony theft offense and thus the intent to commit a felony is proved under these facts.
The defendant was convicted under a criminal statute of raping a child under the age of 12. The court sentenced him to death pursuant to the permissible provisions of the criminal statute. The defendant appealed the death sentence, claiming that it violates the Eighth Amendment by imposing a sentence that is cruel and unusual based on the crime committed. Based on U.S. Supreme Court Eighth Amendment jurisprudence, what will be the most likely outcome?
This is a crime against the individual, and not the state. In this kind of crime, the U.S. Supreme Court has held that it is unconstitutional to put a man to death when there was no taking of life.
A mother of four children age 3 to 9 left her children alone in their single-family home while she went to the store to get groceries. While she was still out, neighbors heard the children calling for their mother, and saw smoke coming from the windows. One neighbor pulled the three oldest children out of the house. The fire department arrived and a fireman found the fourth child dead inside. The fire was not intentionally started. The police found the mother and arrested her for involuntary manslaughter. Is her negligence sufficient to warrant conviction for involuntary manslaughter?
For involuntary manslaughter, there generally must be the killing of a human being in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. The general rule is that involuntary manslaughter requires more than mere negligence in the civil sense. The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to show a disregard of human life or an indifference to consequences. This cannot be judged on the outcome but must be judged on the behavior. Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another.
A man was under custodial interrogation as a suspect in the murder of a child. The police initially gave him a written list of his Miranda rights. They told him to read the list out loud, which he did. They then asked him if he understood the right to remain silent and to have a lawyer present and he nodded affirmatively. He refused to sign the writing but did not ask for an attorney. During the next three hours they interrogated him and got few answers; he was largely silent but did respond at times with a “no” or “yes” or a nod of the head. Then one of the detectives asked him if he was ready to ask God for forgiveness for killing the child. His eyes welled with tears and he said “yes.” This opened further questioning leading to his admission of guilt. He would not sign a written confession or a waiver of the right to remain silent. He was arrested for murder and moved to suppress the confession. Will the court suppress the confession as being involuntarily given?
These circumstances indicate that he voluntarily waived his right to remain silent. There is no evidence that he did not understand the rights given to him and that he read back out loud. There is no evidence of coercion – the mere questioning for over three hours is not coercion. The response to the question about God and forgiveness indicates a course of conduct evidencing a waiver of the right to remain silent. There is no requirement that police must get a written waiver prior to beginning interrogation. See Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
A man set fire to his grocery store in order to collect on the insurance. He started a blaze at night when the store was closed and no one would be on the premises. During the blazing fire, a fireman was killed. The authorities arrested the man on charges of arson and felony murder. He was convicted of murder at a jury trial. The man argued that he could not be convicted of murder because he never intended to murder anyone. Will the courts uphold the murder conviction?
It is reasonably foreseeable that a fireman could be killed in the blaze. The homicide was thus a natural and probable consequence of the arson. If a thief had been caught in the fire and died, this would not be murder because it was not reasonably foreseeable.
The police interrogated a suspect regarding a series of burglaries. The suspect had attention deficit disorder, dyslexia and an IQ of 72. Prior to beginning they read a list of Miranda rights to him on a form that the suspect had in front of him. After the reading, he initialed each paragraph indicating he understood. At the bottom of the form was an express written waiver of the Miranda rights, which he signed. He had been interrogated in the past and was familiar with the procedure. During the four hours of interrogation he was given bathroom breaks, coffee, and a sandwich. At the end of the process, he made a logical and seemingly cogent confession to all of the burglaries in a taped statement. The defendant later moved to suppress the confession, arguing that he was coming down from drugs at the time and was intellectually unable to understand and comprehend the nature of the warnings or the waiver. What is the most likely decision of the court under the totality of the circumstances?
The facts state that he gave a “cogent” and logical statement confessing to the burglaries. There are no facts indicating that his disabilities got in the way of giving a voluntary confession. His prior experience weighs against his claims. Taking drugs is not a defense to a waiver of rights where the suspect appears to be lucid and appears to know what he’s doing. There is no evidence of police coercion, making his decision a voluntary one, under the totality of the circumstances.
A defendant charged with homicide had a long and tortured history of mental illness. He related several outrageous paranoid fantasies to the authorities and was sent to a mental hospital for evaluation of his ability to stand trial. The doctors reported that the only hope to restore the defendant to relative normalcy where he could stand trial was to administer widely-used anti-psychotic medicine. The man was also a danger to himself and others, and the medicine was in his medical best interests. The defendant asserted that the administration of drugs against his will would violate his liberty interest to substantive due process. Will the court likely order that the defendant should be involuntarily administered the anti-psychotic medications?
That it is in his medical best interest is important factor and makes it easier to decide that the secondary effect of rendering him capable of standing trial was also valid. Furthermore, at present he is a danger to himself and others, and the medication may improve also that problem. In this case, all of the factors would militate in favor of granting the order.
A man wearing a jacket and jeans walked along a city street at night in a high crime area known for drug trafficking and gun violence. He saw two police officers walking toward him. The officers were checking on a 911 call from a resident who observed a man in jeans and a jacket apparently selling drugs to people on the street. When the police first saw him, he was walking alone, in the area that the woman identified. As they approached, he suddenly crossed the street by jaywalking. They followed, and approaching from behind, asked him to stop. He started walking faster, away from them. The officers saw what appeared to be a heavy object bulging in his pocket as he moved. The officers, with over 10 years of foot patrol experience, stepped up and stopped him. They patted him down and found a concealed, unlicensed handgun in the jacket pocket. They then made a full search and found 50 packets of heroin. He filed a motion to suppress the gun and drug evidence. Will the court likely suppress the evidence?
There must be reasonable suspicion of criminal activity to make a Terry stop. This is an objective standard, asking whether a reasonable police officer, faced with these circumstances, would believe that criminal activity was afoot. United States v. Patton, 705 F.3d 734, 738 (7th Cir.2013), (citing Terry, 392 U.S. at 27). The inquiry looks at all of the factors, not just one or two. See US v. Williams, 731 F. 3d 678, 695-96 (7th Cir. 2013). The officer needs even more for a frisk; this requires an articulable suspicion that the subject is "armed and dangerous." Arizona v. Johnson, 555 U.S. 323 (2009); United States v. Pedroza, 269 F.3d 821, 827 (2001), citing Terry, 392 U.S. at 27. The further inquiry is due to frisks being severe intrusions upon individual liberty. Terry, 392 U.S. at 27. Here, there is high crime, gun violence, drug activities, very experienced officers, poor lighting, a 911 call, trying to avoid the officers, and a bulging in the jacket, along with wearing a jacket and jeans and being in the same area where the activity was reported, all of which together justify both the stop and the frisk.
The police were at the scene of an accident, assisting injured victims and clearing traffic. One car stopped in traffic was creating a distraction by blasting rap music. A police officer told the driver to turn it down, which he did. While explaining this, the officer spotted a handgun next to the driver on the seat. State law allowed the carrying of a concealed or unconcealed weapon. The officer ordered him out of the car for safety concerns. The officer drew her gun and pointed it at him as he got out, threatening to shoot him if he was not compliant. Other officers approached with weapons drawn. The driver was put on the ground and handcuffed. Drugs were found inside the car and he was charged with drug possession. He filed a motion to suppress, claiming a Fourth Amendment violation. What is the most likely decision of the court?
The officer’s failure to use less intrusive means to assure safety was unreasonable. The traffic hazard justified a minimal intrusion, and was alleviated when he turned the music down. She could reasonably order him out of the car in order to separate him from the gun, which was nonetheless a legal weapon under state law. But her conduct then escalated excessively out of proportion and initiated what was essentially an arrest procedure, which was not reasonably related in scope to the reason for the initial interference. See US v. King, 990 F. 2d 1552 (10th Circ. 1993); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam).
A seller of computers advertised for sale: “lot number 931, brand new computers, state-of-the-art, deeply discounted in price and with factory warranties.” Some of the buyers of these computers ran into problems in trying to register for the factory warranty. They were rejected without explanation, and several of them reported the problem to local authorities. The authorities eventually discovered that the whole lot of computers advertised by the seller was part of a truckload that was hijacked and emptied of its contents a few months earlier. Under questioning, the seller admitted to being part of a group that committed the hijacking. The police arrested him for theft, receiving stolen property, and criminal fraud. Can he likely be convicted of receiving stolen property?
The receiving stolen property statutes were not intended to go after the thief of the goods. They are intended to punish the fence because the ready availability of the fence promotes theft. Thus, a thief who sells goods that he himself has stolen is not engaging in receiving and selling stolen property. See US v. Kimbrew, 406 F. 3d 1149 (9th Cir. 2005) (thief who sells the property that he stole is not eligible for sentencing enhancement of being “in the business of buying and selling stolen property); US v. McMinn, 103 F. 3d 216 (1st Cir. 1997) (statutes which criminalize "receiving" are generally not targeting the thief, but the wrongdoer who knowingly acquires the loot from or through the thief).
Immediately after a shooting incident, the police chased one of the shooters into an apartment where he was apprehended and arrested. While in the apartment, a detective noticed some antique furniture that seemed of collectors’ quality and was out of place in the squalidly furnished quarters. He moved and turned over the pieces to look for markings and insignia. He called headquarters, and was told that items with those markings and descriptions were stolen from a museum six months earlier. He seized the items and arrested another occupant, who claimed he owned the items, on charges of burglary. That suspect filed a motion to suppress based on there being a warrantless search without probable cause. The police relied on the plain view doctrine. Will the court likely suppress the evidence?
An officer must have probable cause to believe that items in plain view are contraband before he may search or seize them. The police may not move objects to get a better view. In Arizona v. Hicks, 480 U.S. 321 (1987), the officer was found to have acted unlawfully. While investigating a shooting, the officer moved, without probable cause, stereo equipment to record the serial numbers. The evidence was later suppressed because the officer had no probable cause to believe that the equipment, appearing in plain view, was contraband.
A woman was walking to a bus stop after leaving her workplace. A teen in a parked car waved a gun at her and asked in an obscene tone of voice if she would like a ride. She kept walking and he did not pursue, but she heard him yelling in her direction that maybe he should get out and teach her a lesson. The woman went straight to a police officer and reported the incident, stating that she was afraid. The police went to the car and found the teen, and the gun. The gun was unloaded. Will the police be able to successfully prosecute the man for simple assault?
Assault is a wilful attempt or threat to inflict injury on another person, when coupled with the apparent ability to do so, and any intentional display of force as would give the victim reason to fear or expect immediate bodily harm. The intent may have been in a somewhat joking manner, but all of the circumstances here would have placed the woman in a state of fear. Waving a gun appears to the victim to be a threat, whether loaded or not, and is sufficient to have placed the woman in a state of fear.
A property owner was returning home one evening. When he got into his driveway he beeped open the garage door. As he approached the garage he saw some movement inside but couldn’t tell what it was. He stopped the car, pulled his handgun from the glove compartment, and walked toward the garage. As he began to enter the garage a person jumped out from behind a pile of boxes and tried to run out of the garage, in a direction away from the owner. While heading for the outside area, the owner raised his gun and shot the individual dead. It turned out that the dead person was a 16-year-old unarmed teen from the neighborhood who apparently had been searching the garage for things to steal. Under the prevailing common law rule, will the owner be convicted of a criminal homicide charge?
This was not reasonable force under the circumstances. He could not reasonably be said to be in fear of serious bodily injury or death when he pulled the trigger. He could reasonably have ordered the minor out of the garage at gunpoint. When the boy started running he went toward the outside not toward the owner but in an opposite direction, thus giving owner no reason for excessive personal fear. Furthermore, the boy was unarmed and his manner of trying to exit did not give the owner any reason to fear a weapon.
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