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«New York State Bar Examination Essay Questions QUESTION 1 Bob and Ann were married in 2000 in State X. In 2001, the couple moved to New York, and Bob ...»

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there was no way of knowing [the unidentified tipper's] state of mind at the time [the tipper] gave the information, or whether [the tipper] could reliably and accurately relay events." State v. Montel (Fr. Ct. App. 2003). As independent investigation from Officer Simon proved the anonymous tipper's tip false and omissive, Officer Simon had no reasonable suspicion of criminal activity when he stopped McLain, and as a result, both the stop and subsequent search violated McLain's Fourth Amendment rights under the Federal and State Constitution. All evidence and testimony subsequent to Officer Simon's stop and interrogation of McLain must be suppressed, as such testimony and evidence was obtained in violation of McLain's Fourth Amendment rights and is thus excludable under the fruit of the poisonous tree doctrine.

II. Count Two of The Criminal Complaint Must be Dismissed as it is a Lesser Included Offense of Count Three.

When the same series of events gives rise to two separate statutory actions, and the elements of a "greater" statutory action necessarily includes the elements of the other "lesser" statutory action, prosecution of both crimes violates the double jeopardy clause of the United States Constitution. See State v. Decker (Franklin Supreme Court 2005) (citing Blockburger v. United States, 284 U.S. 299 (1932)); see also Franklin Criminal Code Section 5(2). A lesser included offense is necessarily included within the greater offense if it is impossible to commit the greater offense without having committed the lesser offense. Id.

Moreover, "Franklin case law does not require a strict textual comparison such that only where all the elements of the compared offenses coincide exactly will one offense be deemed a lesser-included offense of the greater... if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in the commission of the other, then the offenses are multiplicitous." State v. Decker (Franklin Supreme Court 2005).

Here, Defendant McLain has been charged with both (1) the manufacture of methamphetamine and (2) possession of equipment or supplies with intent to manufacture methamphetamine.

The criminal code prohibiting manufacture of methamphetamine is codified in Franklin Criminal Code Section 51. Section 51 states in part that "[i]t is unlawful for any person to knowingly manufacture methamphetamine. 'Manufacture' means to produce, compound, convert, or process methamphetamine, including to package or repackage the substance, either directly or indirectly by extraction of substances of natural origin or by means of chemical synthesis." Franklin Criminal Code Section 51.

The criminal code prohibiting possession of equipment or supplies with intent to manufacture methamphetamine is codified in Franklin Criminal Code Section 43.

Section 43 states in part that "[n]o person shall knowingly possess equipment or chemicals, or both, for the purposes of manufacturing a controlled substance, to wit, methamphetamine...." Franklin Criminal Code Section 43.

Thus, under the Franklin Criminal Code, to unlawfully manufacture methamphetamine, one must take raw elements or chemicals and through scientific process or chemical synthesis create methamphetamine. Further, under the Franklin Criminal Code, the possession of the raw elements of chemicals or the scientific equipment necessary to synthesize methamphetamine is considered criminal possession of equipment or supplies with intent to manufacture methamphetamine.

As a matter of law and logic, the crime of unlawfully possessing equipment or supplies with intent to manufacture methamphetamine is the lesser included offense of the crime of manufacturing methamphetamine. Under the statutory definition of "manufacture[,]" one must have the raw elements necessary to manufacture methamphetamine in order to actually manufacture methamphetamine. The possession of these raw elements is a necessary element in the crime of the unlawful production of methamphetamine.

As one cannot make an omelet without eggs, one cannot manufacture methamphetamine without the raw materials necessary to do so. As Officer Simon testified, the items McLain purchased or possessed (coffee filters, Sudafed cold medicine and matches) were all simply the raw elements that could allegedly be used for the manufacture of methamphetamine. Therefore, one must violate the statute prohibiting possession of the raw materials to manufacture in order to subsequently run afoul of the statute prohibiting manufacture.

Much as the elements of first-degree burglary necessarily include the elements of assault, the elements of manufacturing methamphetamine necessarily include the elements of unlawfully possessing equipment or supplies with intent to manufacture methamphetamine. See State v. Decker (Franklin Supreme Court 2005) (holding that since first-degree burglary requires intent to cause bodily injury and the causation of serious injury, and since assault required the same two elements, assault is a lesser included offense of first degree burglary). Just as the crime of first-degree burglary necessarily requires the commission of assault, the crime of manufacturing methamphetamine requires the commission of the crime of unlawfully possessing equipment or supplies with intent to manufacture methamphetamine.

The fact that the literal language of the statutes does not overlap is irrelevant, as under Decker a literal linguistic overlap is unnecessary for one crime to be the lesser included offense of another.

Moreover, the situation at hand differs from that in State v. Jackson (Fr. Ct. App.

1992), wherein possession of drug paraphernalia was found to be a separate and distinct offense from possession of drugs. One can possess drugs without possessing paraphernalia, yet here, one cannot manufacture methamphetamine without with raw materials to do so.

Count Two of the Criminal Complaint (for unlawfully possessing equipment or supplies with intent to manufacture methamphetamine) must be dismissed as it is a lesser included offence of Count Three (for unlawfully manufacturing methamphetamine), and thus prosecution of McLain for both crimes would violate the double jeopardy clause of the United States Constitution and constitute reversible error. See State v. Decker (Franklin Supreme Court 2005).



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