Memos...Rewrites...and more Memos!

So...it's a beautiful fall Saturday here in Salem, Oregon, or at least it looks that way from the third floor of Willamette College of Law's law library. Today, I am attempting to make my closed universe legal memo all things glorious. You know...the C+ memo I refered to earlier? Apparently, some hard work and I can turn it from a C+ into an A. Now for the hard work! Let me just tell you, legal writing has been a humbling experience for me. My history with writing has been pleasurable and easy until now. Legal writing challenges every rule and writing skill I have. It attempts to undo all that I know. What works in AP style doesn't always jive in legal writing. My persuasive PR background doesn't not apply to this project. Objective and straight to the point is the goal...is the challenge! Below is a snippet of the project. Enjoy. Don't fall asleep :-) For my lawyer friends of which I know there are few, don't laugh. I'll get better I promise!

To: Senior Attorney
From: Lori Reese
Date: October 16, 2008
RE: Client Tom Jones

Questions Presented

1. In California, does a drive-through Automatic Teller Machine (ATM), housed in a metal structure not internally attached to the bank building and covered by an overhead structure, which is attached to the bank building, constitute a “building” for the purposes of satisfying the “building” element in burglary?

2. If so, is “entry” made when a person uses an ATM card he is not authorized to use by inserting it into the ATM and using the card’s Personal Identification Number (PIN) to withdraw $500?

Short Answers

1. Probably yes. A drive-through ATM will in all probability be defined as a “building” under the statute. Because the statute has a legislative intent for a broader interpretation of “building” then the common law interpretation, the ATM’s characteristics of having four walls and a roof should meet the test of what defines a “building.”

2. Probably yes. The element of “entry” as defined under the statute will probably be met. Case law establishes “entry”, whether it is physical or with the use of a tool. The use of an ATM card, which can be classified as a tool, to access the property stored inside should meet the test of what defines “entry.”

Statement of Facts

Our client, Tom Jones, has been charged with Second Degree Burglary as well as some additional charges. The charge of Second Degree Burglary results from Mr. Jones’ unauthorized use of an ATM card at a drive-through ATM where he withdrew $500.

Mr. Jones, while walking in a park, took possession of an unattended purse. Concealing the purse, he carried it to a park restroom where he removed its contents, including a wallet. In the wallet he found an ATM card as well as the corresponding PIN number for the ATM card.

Leaving with the ATM card, he drove immediately to the bank from which the card was issued. Banking operations had ended for the day. He drove his car up to the 24-hour drive-through ATM machine, located on the third bay of the bank’s drive-through lanes, the bay furthest from the bank building. Stopping his car beside the drive-through ATM, he inserted the ATM card. Following the promptings of the ATM, including the manual entry of the PIN number on the adjacent keypad, he withdrew $500 from the machine. Once the transaction was completed, the machine returned the card to him.

The ATM is housed in a metal structure under an overhead structure that extends from the bank building, to which it is attached. The overhead structure spans the three bays of the drive-through and is supported by pillars. Where the structure connects to the bank building, there is a wall. The other three sides are not enclosed. The ATM, which is constructed of metal and measures about five feet high, four feet across and about two feet wide is not attached to the structure and is not connected internally to the bank building.

Applicable Statute

The applicable portion of the California statue reads as follows:

Every person who enters any . . . store . . . outhouse or other building . . . with the intent commit grand or petit larceny or any felony is guilty of burglary.

Cal. Penal Code Ann. § 459 (West 2008).

Discussion

1. Building
Although the statute does not specifically define an ATM or the structure under which it sits as “buildings,” the California Supreme Court has held a “building” consist of four walls and a roof. State v. Gibbons, 273 Cal. 32 (Cal. 1928).
The California Supreme Court held that although California’s definition of burglary is much broader than its counterpart meaning under common law, the more inclusive definition still requires “buildings” to consist of four sides and a roof. Id. at 32. State v. Brooks holds a loading dock, with two of its four walls constructed out of chain link fencing, constituted a “building” because the loading dock met the statutory definition and by being located at the rear of the store and sharing a common wall, it is an integral part of the store “building.” 183 Cal. Rptr. 773 (App. 2nd Dist. 1982). State v. Stickman, 34 Cal. 242, 245 (holding the language [of the statute] broad enough to include buildings of any kind and used for any purpose). Brooks found the definition of “building” to be broader than just a structure with four walls and a roof. Id. at 776. State v. Buyle, 70 P.2d 955; State v. Alexander, 53 Cal. Rptr. 65; State v. Miller, 213 P.2d 534 (holding a building has been defined as “a structure which has capacity to contain, and is designed for the habitation of, man or animals, or the sheltering of property). The court in Brooks when discussing the construct of the bin’s walls concluded the test should be to determine if “the walls act as a significant barrier to entrance.” Id. (Do I need to re cite here or is Id. sufficient?) Also, the Brooks court determined it not necessary to define the loading dock as a building when the store it was attached to meets that definition. Id. at 777. In re Christopher J., 162 Cal. Rptr. 147 (holding with respect to a carport appurtenant to the dwelling house, the requirement of a structure with four walls is satisfied by the dwelling house itself and it is unnecessary to find . . . the carport alone satisfies the definition of a separate building). (Does this need quotation marks?)The holding in State v. Franco, states when a structure which is completely enclosed, like the showcase in that instance, is sheltered by the roof of a building, it is in effect part of the store proper and thus a building. 250 P. 698 (Cal. Dist. App. 1st Dist.1926).

And on and on it goes! I won't bore you with the rest!