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
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
(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
(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.
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)
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
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
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
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.
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.
John T. Robinson, Esquire
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
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
Specifically, Attorney Darrow wants your Memorandum to:
present the relevant portions of the NEPA statute.
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.
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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