Wednesday, November 18, 2009

How to Write a Memorandum of Law (internal)

How to Write a Memorandum of Law

1. Heading
To: Attorney name
From: Paralegal name

2. Statement of the issues presented
Number each issue and be concise (remember issues are always framed as questions) and no more than one sentence per issue.

3. Short summary of the conclusion
Provides a quick yes or no answer to the questions framed in the issues and a statement of why.

4. Statement of the facts (objectively stated)
Gathered information from interviews with client and facts gathered in investigation.

5. Discussion
Identify points of law with supporting authority.
Analysis of the law and facts, with citations to relevant authorities.
Quotes from relevant statutes, codes, cases and other sources.
Relating research to the facts.

6. Conclusion
Summary of what the research has shown the law to be relative to the facts. Opinion is okay but be sure to include the likelihood of how a court would rule, leave advocacy of client’s case for negotiations or trial.
As an example I am putting one of the memorandums I did while I was in school getting my Paralegal Certificate. It was a hypothetical case that involved false persons with false facts.

To: Rick JenningsFrom: Chris Hardin
Date: March 10, 2008
RE: Search and Seizure (Final Project)
1. Was the search of the bag a legal search by the police officers?
2. Did the officers have a reasonable articulable suspicion that Dan committed a crime before the search?
3. Did this encounter develop from a consensual interview, to an investigatory stop, to an arrest?
Brief Answer:
1. The search of the bag was a legal search because of Dan’s consent during a consensual interview.
2. The officers did have a reasonable articulable suspicion that Dan had committed a crime before their search of his bag based on their questions during the interview and the fact that he was acting suspiciously.
3. This encounter did escalate from a consensual interview to an investigatory stop to an arrest after the officers had consent to search the bag that led to them finding a suspicious package which was methamphetamine that led to Dan’s arrest.
Dan was arrested and charged with possession and intent to sell methamphetamine. Police officers boarded a bus to ask the passengers questions individually. The officers did not block the door, but were standing in the aisle. The officers spent five minutes talking with Dan after they noticed he was acting suspicious and then they asked to search his bag. Dan consented to this search.
The officers found a suspicious package in the bag and asked Dan to step off the bus. While standing right next to the bus, the officers opened the package and discovered four pounds of methamphetamine. Dan denied the bag was his including everything inside. Dan originally said he had no baggage despite being on the bus for several days. The officers then arrested Dan. Dan’s fingerprints were later found on the handle of the bag but not the package of methamphetamine.
According to the facts given, the encounter with the police officers and Dan in the bus was a consensual interview that had escalated to an investigatory stop which then escalated to an arrest. In People v. Whitaker 32 P.3d 511 a case with the exact same facts as in our case the court found that the initial encounter was a consensual interview that had escalated into an investigatory stop. In People v. Paynter 955 P.2d 68 we find the description of what constitutes a consensual interview. In this case the court found that asking a person for their identification does not escalate an encounter into an investigatory stop. Under 955 P.2d 68, 11 a consensual interview is not a search which doesn’t implicate any 4th amendment protections. During a consensual encounter a police officer seeks the voluntary cooperation of an individual by asking non-coercive questions. Also, a citizen is free to leave at any time during such an encounter or is allowed to ignore police officers questions. In People v. Paynter the court found that asking a person for identification or questions in general as well as identifying oneself as a police officer does not convert an encounter into a constitutionally protected seizure. 955 P.2d 68, 10. Similarly in our case, the police officers were asking questions and did identify themselves as police officers but did not coerce Dan nor did they search his bag before Dan had consented to the search. In Paynter, they establish that a person is free to leave and may ignore any questions a police officer asks. In Paynter, the officer asked for identification without a reasonably articulable suspicion that Paynter had committed a crime thus negating any seizure thereafter. In our case the officers searched Dangerous Dan’s bag after he consented where a suspicious package was found, which escalated the consensual interview into an investigatory stop. The fact that they found a suspicious package gave the officers a reasonably articulable suspicion that Dan had committed a crime.
In Whitaker, the consensual interview escalated into an investigatory stop. During the consensual interview Dan initially stated to the police officers that he had no luggage despite being on the bus for several days. The same set of facts occurred in Whitaker. What the court found in Whitaker is that this was a suspicious answer that led the police officers to believe more that the defendant had committed a crime. They also found that because the package was in view of a public conveyance, and its appearance appeared to contradict Dan’s statement that he had no luggage. There is neither prolonged questioning nor repeated questions about the defendant’s stated lack of luggage that would create an unconstitutional escalation from a consensual encounter into an investigatory stop.
To determine whether an investigatory stop has escalated into an arrest there has to be four factors established. In People v. Rodriguez 945 P.2d 1351, these four factors as used by the court are: length of detention, whether the investigation was diligently pursued, whether the suspect was required to move from one place to another, and whether there were alternative and less intrusive methods available which the police unreasonably failed to pursue. To determine if Dan was unreasonably moved from inside the bus to outside the bus, after finding the suspicious package the court looks at these four factors. In Rodriguez the court found that the length of the detention of Rodriguez was reasonable in that most of the time the officer detained Rodriguez was trying to find the correct VIN of the vehicle which was part of the original reasonable suspicion of the investigatory stop. The court found that the police officer erred when it took Rodriguez and his family ninety minutes out of their day and traveled ten miles in an opposite direction. In our case the police officers took Dan right outside the bus and searched the rest of the bag including the suspicious package at which time they found the methamphetamine. The fact that the police officers didn’t open the suspicious package until after an investigatory stop was established and that they only talked to Dan for five minutes as well as took Dan just outside the bus means the police officers were acting legally and that the consensual interview that led to an investigatory stop which led to the arrest of Dan was legal.
Fourth amendment protections are not a defense for Dan because the officers didn’t search his bag until Dan gave them consent to do so. After this consent, a suspicious package was found that escalated the consensual interview into an investigatory stop because the officers then had a reasonably articulable suspicion that Dan had committed a crime. Once the investigatory stop was established the police legally searched Dan’s bag and found methamphetamine which resulted in Dan’s arrest. The police acted legally and completed the four factor test to escalate an investigatory stop into an arrest.

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