(Legal Memorandum) essay

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I will provide an example of how exact format should the Memorandum be. Sources must be found using Lexis Nexis Legal Database. I can provide you access through my school's account if you are unable to access the academic database for Lexis Nexis.

The professor's instructions quoted,

"legal writings prepared out of class and submitted electronically to your instructor on assigned dates. Each writing must be not less than ten (10) full pages in length, double spaced, with the arguments supported by not less than 5 legal precedents, whether derived from caselaw or statute. It must be crafted in the form of legal brief as directed."

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legal writings prepared out of class and submitted electronically to your instructor on assigned dates. Each writing must be not less than ten (10) full pages in length, double spaced, with the arguments supported by not less than 5 legal precedents, whether derived from caselaw or statute. It must be crafted in the form of legal brief as directed. A Memorandum to Client on the Merits of an Appeal Preliminary Statement Mr. Phillip Smoker, the owner of Phil’s Phine Cuisine, Inc., has been convicted of the criminal offense of violating the New Jersey anti-smoking law as set forth at N.J. Stat. § 26:3D62. He has also lost his appeals in the State Court system as well as in the United States District Court, and United States Circuit Court of Appeals. He has retained the legal services of Attorney Clarence Darrow for the purpose of evaluating the merits of an appeal of his conviction to the United States Supreme Court. This Memorandum is written to assist Attorney Darrow in his deliberation of that question. Statement of the Issues to Be Considered (1) Were the actions of the police officer in detaining Mr. Smoker and eliciting his confession violative of Phil’s rights not to be compelled to testify against himself and to be represented by legal counsel as guaranteed by the 5th, 6th, and 14th Amendments to the United States Constitution? (2) Were the actions of the police officer in searching the restaurant’s office and seizing the “smoker list” without a search warrant violative of Phil’s Phine Cuisine, Inc.’s rights against unlawful search and seizure as guaranteed by the 4th and 14th Amendments to the United States Constitution? (3) If either set of acts constituted violations of constitutionally protected rights, should the evidence illegally obtained have been suppressed? Statement of the Facts Mr. Phillip Smoker is the sole shareholder and owner of “Phil’s Phine Cuisine, Inc.” an incorporated restaurant located in Cape May, New Jersey. A police officer, with whom Phil enjoyed a long and amicable relationship, was told by a disgruntled patron that Phil had a special “back room” in his restaurant where he permitted smoking which would be in violation of a New Jersey law against smoking in public places. Soon thereafter and without prior notice or invitation, the police officer, in full uniform with visible holstered firearm and stungun, entered the restaurant and demanded to speak to Phil. The officer took Phil roughly by his arm into the restaurant’s office and said: “I’m tired of you flaunting the law Phil, I know you let people smoke in here and you’re not leaving until you tell me the truth.” Phil replied: “Alright, copper, ya got me, the jig is up.” The officer, without a warrant or consent, then searched through the business records of the corporate restaurant and found that Phil kept a special list of patrons under the heading “Smokers for our Special Section” (hereinafter “smoker list”) which he gave to his staff so they would know who to permit into the smoking back room. The officer seized this list. Argument Statement of the Law United States Constitution The 4th Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The 5th Amendment to the United States Constitution states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The 6th Amendment to the United States Constitution states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (sic) Section #1 of the 14th Amendment to the United States Constitution states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Statutory Law of the State of New Jersey N.J. Stat. § 26:3D-62(b) states: b. The Department of Health and Senior Services or the local board of health or the board, body or officers exercising the functions of the local board of health according to law, upon written complaint or having reason to suspect that an indoor public place or workplace covered by the provisions of this act is or may be in violation of the provisions of this act, shall, by written notification, advise the person having control of the place accordingly and order appropriate action to be taken. A person receiving that notice who fails or refuses to comply with the order is subject to a fine of not less than $ 250 for the first offense, $ 500 for the second offense and $ 1,000 for each subsequent offense. In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act. Applicable Case Law United States v. Leary, 846 F.2d 592 (10th Circuit, 1988) Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 1961 U.S. LEXIS 812 State v. O’Loughlin, 270 N.J. Super. 472, 637 A.2d 553 (1994) State v. Boretsky, 186 N.J. 271, 894 A.2d 659 (2006) State v. Stott, 171 N.J. 343, 794 A.2d 120 (2002) State v. Selzner, 257 N.J. Super. 219, 608 A.2d 386 (1992) Discussion Issue #1 – Possible violation of Mr. Smoker’s 5th, 6th, and 14th Constitutional Rights The first issue considers whether Mr. Smoker was unlawfully detained and whether that detention lead to a violation of his federal Constitutional rights as embodied in the 5th, 6th and 14th Amendments which should result in the exclusion and suppression of Mr. Smoker’s alleged confession. In State v. O’Loughlin, 270 N.J. Super. 472, 637 A.2d 553 (1994), the New Jersey Superior Court, in considering when a detention becomes custodial, stated in part: In State v. Pierson, 223 N.J. Super. 62, 66-67, 537 A.2d 1340 (1988), we concluded: Miranda warnings are a prerequisite to custodial interrogation, which is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, at 444; 86 S.Ct. 1602, at 1612; 16 L.Ed.2d 694 (1966). In State v. Boretsky, supra, the New Jersey Supreme Court, in considering when the protections of Miranda v. Arizona, supra, attach to police actions stated in part: Indeed, the desire to protect the right against self-incrimination motivated the Supreme Court to craft the constitutional protections imposed by Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S. Ct. 1602, 1618-19, 16 L. Ed. 2d 694, 713-14 (1966). The Court explicitly stated that it was concerned about the relationship between custodial interrogation--with its "inherently compelling pressures"--and the effect that the resulting atmosphere of intimidation has on a suspect's free will. Id. at 456-57, 467, 86 S. Ct. at 1618-19, 1624, 16 L. Ed. 2d at 712-14, 719. The purpose of the Miranda warnings, enforced through the suppression remedy, then, "is not to mold police conduct for its own sake," but "to dissipate the compulsion inherent in custodial interrogation." Moran v. Burbine, 475 U.S. 412, 424-25, 106 S. Ct. 1135, 1142-43, 89 L. Ed. 2d 410, 422-24 (1986). The facts of this case show that the officer took Mr. Smoker roughly by his arm into the restaurant’s office and said: “I know you let people smoke in here and you’re not leaving until you tell me the truth.” It would not be unreasonable for a court to find this language to be “compelling,” “intimidating,” and stated within a “custodial” setting. As such, the officer should have advised Mr. Smoker of his so-called Miranda rights. Of course, there is the possibility the government could argue that because of the amicable many year relationship between Mr. Smoker and the officer, their encounter on the day in question was not intimidating or threatening and thus did not cause Mr. Smoker to believe his freedom of movement had been restrained. However, if the court determined that so-called Miranda rights should have been given, would the exclusion and suppression of Mr. Smoker’s alleged confession be the proper remedy? In, State v. Stott, supra, the New Jersey Supreme Court considered the remedy of suppression of statements taken in violation of the 5th and 6th Amendments, and stated in part: This Court also has explained that "[t]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect[.]" State v. P.Z., 152 N.J. 86, 103, 703 A.2d 901 (1997). Another factor is whether a suspect knew that he or she was a focus of the police investigation. Stansbury v. California, 511 U.S. 318, 325, 114 S. Ct. 1526, 1530, 128 L. Ed. 2d 293, 300 (1994); State v. Pearson, 318 N.J. Super. 123, 134, 723 A.2d 84 (App.Div.1999). In applying those tenets we hold that, given the absence of Miranda warnings, defendant's statements must be suppressed. The Court notes that there is no serious dispute that the police "interrogated" defendant during the course of his interviews. Pursuant to Stott, supra, it would seem reasonable for the court to find constitutional violations and to impose the so-called “Exclusionary Rule” resultin in gthe suppression of Mr. Smoker’s alleged confession. Issue #2 – Search and Seizure of a Corporate Record - “The Smoker List” The federal constitutional protections in contention within this Issue are those arising out of the 4th and 14th Amendments. The question is whether the police officer violated the constitutional rights of the corporation, Phil’s Phine Cuisine, Inc., by seizing its corporately owned “smoker list.” In State v. Selzner, supra, the New Jersey Superior Court, in considering the effect of the seizure of business records without a warrant, stated in part: The State concedes that Sergeant Kontakis was mistakenly given defendants' telephone billing records without having a warrant. But, if those records were obtained pursuant to an improper search or seizure, the records, as well as any information flowing from their acquisition, would be subject to suppression as fruit of unlawful police conduct. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 445 (1963) (evidence arising by exploitation of illegality is suppressed; evidence obtained by means sufficiently distinguishable from the primary illegality may be admitted); State v. Johnson, 118 N.J. 639, 652, 573 A.2d 909 (1990). In United States v. Leary, supra, the Circuit Court, when considering whether a corporation can defend itself against unreasonable search and seizure, stated in part: There is no doubt that a corporate officer or employee may assert a reasonable or legitimate expectation of privacy in his corporate office. Cf. Mancusi v. DeForte, 392 U.S. 364, 369, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968) ("It has long been settled that one has standing to object to a search of his office, as well as of his home."); United States v. Lefkowitz, 464 F. Supp. 227, 230 (C.D. Cal. 1979) (corporate officers had sufficient privacy interest in corporate office suite), aff'd, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 66 L. Ed. 2d 27, 101 S. Ct. 86 (1980); see also 4 W. LaFave, Search and Seizure § 11.3(d) (2d ed. 1987) [hereinafter LaFave]. Similarly, "it seems clear that a corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records. . . . " Id. at 316. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353, 50 L. Ed. 2d 530, 97 S. Ct. 619 (1977); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir. 1988). In addition, except in rare circumstances, a warrant is as necessary to support a search of commercial premises as private premises. See Blackie's House of Beef, Inc. v. Castillo, 212 U.S. App. D.C. 327, 659 F.2d 1211, 1216 n.5 (D.C. Cir. 1981) (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978)), cert. denied, 455 U.S. 940, 71 L. Ed. 2d 651, 102 S. Ct. 1432 (1982). An application of the tenets espoused in Selzner, supra, and Leary, supra, would appear to lead to the conclusion that Phil’s Phine Cuisine, Inc., had the right to invoke the protections of the 4th and 14th Amendments regarding the warrantless search and seizure of the “smoker list,” which would have resulted in its exclusion and suppression. Issue #3 – Exclusionary Rule The final question is whether the application of the so-called “Exclusionary Rule” would be the proper remedy for the Officer’s illegal interrogation of Mr. Smoker and seizure of the corporate “smoker list.” In Mapp v. Ohio, supra, Justice Clark of the Supreme Court of the United States, when delivering the Opinion of the Court, stated in part: Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then, just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom "implicit in the concept of ordered liberty." Predicated on the strength of the pronouncements in Mapp, supra, the judicial remedy of the “Exclusionary Rule” and its resulting suppression of the evidence unconstitutionally seized would seem to be the remedy which should have been applied by the trial court. Conclusion Predicated on the applicable principles of law, and their reasonable application to the facts at issue, the United States Supreme Court could well determine that Phil’s rights under the 4th, 5th, 6th, and 14th Amendments to the United States Constitution, as well as the corporation’s rights under the 4th and 14th Amendments were violated by the conduct of the officer, and the fruits of those unlawful acts, including the incriminatory statements made by Phil, and the “smoker list” of the corporation should have been suppressed. Respectfully submitted, John T. Robinson, Esquire Legal Environment Writing Test #3 Memorandum of Law Submission date Friday, December 8, 2017 (please submit by email as a Word .doc or .docx prior to the beginning of class on that day) The Boro of Selinsgrove would like to use Penns Creek as a source of drinking water to supplement its current deep well sources. The Boro=s proposed project entails encasing a 6' diameter water intake pipe into a 3' x 3' x 3' concrete shell anchored in the middle of Penns Creek in a location where the average yearly stream depth is 4'. The captured stream water would run through 6” diameter piping to a pumping station located on the stream bank and then on to a clarifying facility. The project will receive 85% of its funding for the 7.2 million dollar project from Federal sources. The project cannot begin until a permit is issued by the Pennsylvania Department of Environmental Protection (PA-DEP) acting as agent for the Federal Environmental Protection Agency (EPA) pursuant to the Federal Water Pollution Control Act (Clean Water Act) because of the discharge back into Penns Creek of some pollutants removed during treatment, as well as other Federal permits. The Boro filed a Permit Application for the Project with the PA-DEP. The PA-DEP has published in the Pennsylvania Bulletin a posting notifying the public it is not going to require the Boro, in support of its Permit Application, to conduct a Pre-Environmental Impact Study (PEIS), nor conduct an environmental impact study, nor file an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA). The PA-DEP’s posting further stated NEPA does not apply to the proposed project. You are a student intern in the Law Office of Clarence Darrow, Esquire. The Firm represents John Q. Public who lives in the Boro of Selinsgrove along the banks of Penns Creek just downstream of the discharge site of the proposed project. Mr. Public is astute on issues affecting the environment and is outraged the PA-DEP is not going to require the Boro to conduct an environmental impact study and file an EIS in support of its permit application. Mr. Public is confidant NEPA applies to the proposed project and mandates the study and submission of an EIS. It has been some time since Attorney Darrow has researched NEPA, so he has asked you to research the matter and write a legal memorandum he can review so as to be better able to advise Mr. Public whether or not NEPA applies and mandates the performance of an environmental impact study and submission of an EIS by the Boro in support of its pending Permit Application. Specifically, Attorney Darrow wants your Memorandum to: (1) present the relevant portions of the NEPA statute. (2) provide him with caselaw identifying, defining, interpreting and applying the decisional factors a federal administrative law judge would have to consider and apply in the event Mr. Public decides to commence an administrative appeal challenging the PA-DEP’s decision not to require the Boro of Selinsgrove to conduct an environmental impact study and include an Environmental Impact Statement with its proposed project permit application. Attorney Darrow recalls the relevant EIS section of NEPA can be found at 42 USC § 4332(C). He also recalls the language of Section 4332(C) contains 6 words or phrases which courts have determined to be the operative factors defining when a study and an EIS must be performed and submitted. (3) Please include in your Memorandum at least one case identifying, defining, interpreting, or applying each of these factors (for a total of not less than 6 cases). In your conclusion please provide Attorney Darrow with your opinion, based on the law and the facts, as to how an administrative law judge would likely rule in determining whether NEPA requires the Boro to conduct an environmental impact study and to submit ...
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Professor_Markins
School: UCLA

It has been great working with you right from the start to the end. I wish you all the best in your academics. Feel free to ask me any question in the future.

LEGAL MEMORANDUM
To:

Attorney Darrow and John Q. Public

From:

Name

Subject:

Memorandum of Law for Attorney Darrow and John Q. Public
Preliminary statement

In the USA, environmental protection is a priority when federal or state governments are
considering actions that can potentially have a negative effects on the environment. After the
Santa Barbara Oil Spill that occurred in 1969, activists lobbied the American government to
create an organization responsible for conducting environmental impact assessments for large
infrastructure projects. Established via an amendment of title 42, the national environmental
policy-act exists to ensure federal and state governments assess the environmental costs of major
infrastructure projects. The key terminology in regards to conditions for environmental impact
assessments is contained in 42 U.S. Code § 4332. Thus, in the case involving the Boro of
Selinsgrove, the fundamental piece of legislation that the court will lean on to determine whether
the Boro violated the provisions of National Environmental Policy Act-4332 (C). This legal
memorandum outlines the facts and then delves into five prior court cases involving the
interpretation and application of 42 U.S. Code § 4332.
Facts
The Boro of Selinsgrove is on a quest to increase clean drinking water sources to secure
its water supply in case the deep well sources run dry. For the drinking water, the Boro identified
Penn’s creek and is in the process of making plans for an inlet pipe that takes water from the
creek to a pumping station.
The majority of the funding for the creek project comes from federal funds; as such, the
project falls under the guidelines of the NEPA environmental-impact assessments. The

LEGAL MEMORANDUM

2

organization in charge of overseeing and validating an environmental impact assessment for the
Boro of Selinsgrove is the Pennsylvania Department of Environmental Protection (PA-DEP).
In compliance with regulation, the PA-DEP issued a notice alerting the public that it will
not require the Boro of Selinsgrove to conduct an environmental impact assessment.
Pennsylvania Department of Environmental Protection deemed the impact of the project too
insignificant to warrant an in-depth assessment.
Mr., Public, who lives on the banks of the Creek, is of the opinion that the Pennsylvania
Department of Environmental Protection should compel the Boro of Selinsgrove to conduct an
environmental impact assessment as the project will result in potentially harmful discharge
flowing back into the creek. Mr. Public has filed a suit though the Law Office of Clarence
Darrow challenging the decision of the Pennsylvania Department of Environmental Protection.
Statement of issues to be considered


The first important issue to consider is whether the Boro of Selinsgrove’s
proposed water creek project falls under the guidelines of 42 U.S. Code § 4332.



The second important issue to consider is whether the guidelines outlined in 4332
(C) require that the Boro of Selinsgrove to submit an environmental-impact
assessment.
Applicable law

As the case involves the decision by the Pennsylvania Department of Environmental
Protection not to require an environmental impact assessment, the key legislation used is 42 U.S.
Code § 4332. Section 4223 (C) of the Amer law begins by establishing that all federal
government agencies must conduct assessments that generate reports on proposed legislation or

LEGAL MEMORANDUM

3

federal actions that have the potential to affect the human environment. Key emphasis on
“federal actions” as one of the defining terminologies of this law.
Section 4223 (C) also lists several conditions that environmental impact assessment
reports must meet. The first condition is that environmental impact assessments must outline the
environmental impact of th...

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