Petition — Robbins v. California

FI

DEC 14

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4 Supreme Court, U. S.

J

—_

wn JR.. CLERK

IN THE

Supreme Court of the United State

OctospER TERM, 1976

No.

76-817

JEFFREY RicHarRD Rossins, Petitioner,

v.

THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL FOR THE

STATE OF CALIFORNIA

JEFFREY RICHARD ROBBINS

Pro Se

202 Brazil Street

San Francisco, California 94112

Of Counsel:

Tuomas E. Horn

Atto at Law

1701 Franklin Street

San Francisco, California 94109

(415) 441-1484

JosePH G. BAXTER

Attorney at Law

Box

Sausalito, California 94965

(415) 332-5490

a

~—_ -=

Page

SD no copeuvscnudauhecdeccccecdiuccnens 1

ED. nddc cn evedseasecaccdveenedadedeceescs 2

QUESTIONS PRRGBMTED 2... cccccccccnccccvcccccccces 2

STATEMENT OF THB OAGR 2... cccccccccccccccscccccese 3

REASON FoR GRANTING THE WRIT ........0000e eee eeee 6

Pont 1: The Sixth Amendment Right to defend pro se

should be applied retroactively ........... 6

Pow 2: The decisions of this Court do not establish

across-the-board authority for substantial

police invasians of privacy based upon a

‘*Rational Suspicion’’ standard .......... 9

Point 3: Upon taking a defendant into custody there

should be an affirmative obligation to advise

the suspect of his rights rather than delib-

erately waiting for the accused to make an

inculpatory statement ........c.eeeeeeees 11

Point 4: A State may not limit by statute and Court

opinions construing that statute, the right

of a defendant in a criminal case to full and

fair evidentiary hearing on his Motion to

DUBTORD CUREOMED ccc ccccdcccccsccceveces 14

Pot 5: State Law may not arbitrarily declare fun-

gible vegetables to be poison, so vile as to be

declared contraband, subject to seizure and

destruction and arrest of the owner with

subsequent serutiny, and forbid commerce in

said goods by use of a sumptuary law which

has no rational or apparent reason ........ 18

Te a 24

il

CITATIONS _

CasEs:

Adams v. Illinois, 405 U.S. 278 (1967) ......... 00... 7

Adams v, United States, ex rel, MeCann, 317 U.S. 269. = 8

Adams vy. Williams, 407 U.S, 143, 145 SY cauue oa i)

Arsenault v, Mass., 393 U.S. 5 (1968) .............. 8

Brown v. Mississippi, 297 U.S, 278 (1936) .......... 13

Calandra v, United States, 414 U.S. 338 ( ES 13

Desist v. United States, 394 U.S. 294 (1969) ........ '8

Escobedo v. Illinois, 378 U.S. 479 (1964) ............ 13

Faretta v California, 422 U.S. 806 ............. 2, 6,7, 8,9

Fay v. Noia, 372 U.S. 391 (1963) .................. 13

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ 21

Jones v, United States, 362 U.S. 257 ................ 17

Kerr v. California, 374 U.S, 23 .......ccccccccccece 18

Lanza v. New York, 370 U.S. 138 .................... 17

Linkletter v, Walker, 381 U.S. 618 (1965) ........... 7

Lisenda v. California, 214 U.S, 219 (1941) .......... 13

Madril v. Superior Court, 15 Cal.3rd 73, 77 (1975) .... 16

Be DG Oe WAN GED ccdcbedecciccccecccccess 17

McConnell v. Rhay, 393 U.S. 2 (1968) .............. 8

Michigan v. Mosley, 423 U.S, 96 (1975) .............. 13

Michigan v, Payne, 412 U.S. 47 .........ccccccccecess i)

Michigan v. Tucker, 417 U.S. 433 (1974) .......... 12, 13

Miranda vy. Arizona, 384 U.S. 436 (1964) ...... 2, 12, 13, 14

People v. O’Brien, 71 Cal.2d 394, 79 Cal. Rept. 313, 456

PEED 4c dnttcibdhdins ocdceete eos x< 16

People v. Lorentzen, 194 N.W.2d 827, 834 ............ 22

People v. Sinelair, 387 Mich. 91, 194 N.W.2d 878, 896

SD TGR akencuvadleldbueetnkahendabans ccs. 22

People v. Superior Court (Acosta) 20 Cal. App.3d 1085

SUE MARNUER CRE eh bee et cis cue ec stns nce 9

People v. Superior Court (Edmonds), 4 Cal.3d 605, 94

Cal. Reptr. 250, 483 P.2d 1202 (1971) ....... ee 2

Ravin v. Alaska, 537 P.2d 494 (1975) ...........005. 21

Roe v. Wade, 410 U.S. 113 (1973) .............0.00. 21

Rogers v. Richmond, 365 U.S. 534 (1961) ............ 13

«- 2 a

—

Citations Continued iii

Page

Sibron v. New York, 392 U.S. 40 (1968) .........065- 18

Stanley v. Georgia, 394 U.S. 557 (1969) .......000es 21

State v. Kantner, 493 P.2d 306, 312 «0.0... -eeeeeeeee 22

Stefanelli v. Mimard, 342 U.S. 117 .......c eee ce ee eee 17

Stoval v. Denno, 388 U.S. 293 (1967) ........ cece eee 6-7

Tehan v. Shott, 381 U.S. 406 (1966) .......6c ce eeeee 7

Terry v. Ohio, 392 U.S. 1 (1968) 2.0... cece cece eens 9,11

United States v. Brignoni-Ponce, 95 S.Ct. 2574 (1975) | 10

West v. American Telephone and Telegraph, 311 U.S.

Dl 20. Sec decal hen ds beanies bibeneeeenredseese cs 18

Williams v. United States, 401 U.S. 646 (1971) ...... 7

STATUTES :

98 U.S.C. $3101 and 3104 .....ccccccccccccccccccces 2

California Penal Code, §1538.5%.........6.6006 4, 14, 16

Texts AND PERIODICALS:

4 University of Tasmania Law Review 113, 131 ..... 11

Report of the Indian Hemp Drugs Commission (1893-

BD. WaeGG bibs coc eequcetesedtcoscseavesscsoees 20

The White Paper,

National Commission on Marijuana and Drug Abuse

in America, Problems in Prospective, The Sec-

ond Report, (March 1973) .........ceeeeeeeee 20

Marijuana; A Signal of Misunderstanding,

First Report of the National Commission on Mari-

juana and Drug Abuse (March 1972) ......... 20

Marijuana; A Signal of Misunderstanding,

Aspemdis TE on. cc cccccccccccccccccsccccvccceces 21

Marijuana: Beyond Misunderstanding,

Final Report of the California Senate Select Com-

mittee on Control of Marijuana 1974 .......... 21

Interim Report 1970

Canadian Commission of Inquiry into the Non-Medi-

ee ee IO, EP dc nctééecccoccacavesecs 21

Marijuana; A Signal of Misunderstanding,

App. vol. 1 at pp. 482-484 0.0... .. ccc ee cece ee eeneee 23

ee a ee

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No.

JEFFREY RicHarD Rossins, Petitioner,

Vv.

THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent.

PETITION FOR A WRIT OF CERTIORARI ©

TO THE COURT OF APPEAL FOR THE

STATE OF CALIFORNIA

Petitioner, JEFFREY RicHarp Rossrns, respectfully

prays that a Writ of Certiorari issue to review the

Judgment and Opinion of the Court of Appeal for the

State of California in and for the First Appellate Dis-

trict, Division Four, entered in this matter on June I,

1976, refiled on June 30, 1976, modified on July 22,

1976 and further modified on July 27, 1976.

OPINION BELOW

The opinion of the Court of Appeal of the State of

California, First Appellate District, Division Four and

subsequent modification along with the California Su-

preme Court’s denial of Petition for Writ of Cer-

tiorari, none of which have been reported are repro-

duced in the Appendix hereto.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.(.

§ 2101 and 2104, this being a Petition arriving out of

a state criminal conviction.

QUESTIONS PRESENTED

1. Whether the decision of this Court in Faretta

v. California, 422 U.S. 806 is to be given retroactive

application?

2. Whether the decisions of this Court establish

across the board authority for substantial police in-

vasions of privacy based upon a ‘‘rational suspicion”’

standard.

_ 3. Whether there is an affirmative obligation on

law enforcement officials to advise, per Miranda v. Ari-

zona, after a defendant is taken into custody when the

arresting officers know or should know the defendant

is likely to make incuplatory statements?

4. Whether state law, which denies a criminal

defendant a full and adequate hearing on a motion to

suppress evidence violates his rights as guaranteed by

the Fourth and Fovrteenth Amendments to the

United States Constitution ?

5. Whether the legislature may arbitrarily declare

fungible vegetables to be contraband and poison, sub-

ject to seizure and destruction, and arrest and inear-

ceration of the owner with subsequent government

scrutiny and registration and forbid commerce in said

goods by use of a sumptuary law which has no rational

or apparent reason?

3

STATEMENT OF THE CASE

At 1:45 a.m. on January 5, 1975, Jerrrey RicHARD

Rossins was stopped in his station wagon for erratic

driving, which consisted of driving too slowly in a 55

MPH zone and twice going over a yellow line in nego-

tiating an S curve on Lagon Valley Road. The Cali-

fornia Highway Patrol observed this from Highway

80 about a quarter mile away in light fog, exited the

highway and observed petitioner stop for a stop sign

and followed him through the intersection, after a

fourth of a mile they stopped him. Both drivers exited

their vehicles and met in between. Petitioner co-op-

erated in producing his license and registration. No

citations for any traffic offenses were issued. When

petitioner re-entered the vehicle for his registration,

Officer DePue noticed what he concluded to be the

smell of marijuana in the vehicle. Robbins was placed

in the search position against the still running vehicle,

patted down for weapons, and left there. DePue found

a via! of amber colored liquid which he attempted to

identify by opening and sniffing it. He then passed it

to Sergeant Stoltz, who did the same thing and closed

it. DePue then entered the car to search it and examine |

a pair of tweezers found on the seat. Robbins was

overcome by the exhaust fumes from his ear and fell

down choking and spitting. He told the Sergeant that

the fumes were bothering him and DePue turned off

the car. He was asked if he had ingested anything that

might be injurious to his health. DePue then moved him

from where he had fallen in the roadway to behind his

ear and handcuffed him, ostensibly, for the protec-

tion of the two officers. De Pue then re-entered the auto-

mobile and found a tin with a small amount of what

appeared to be marijuana and removed it from the

4

vehicle. DePue continued his search and Stoltz asked

Robbins the questions necessary to fill out a vehicle

storage form requiring his name, address, type of radio,

number of speakers, location of the jack and spare tire,

ete. While DePue continued his. search, Robbins is

alleged to have said, ‘‘What you are looking for is in

the back,’’ to Sergeant Stoltz. Stoltz told DePue, who

removed the keys from the ignition and unlocked the

tailgate, opened it and opened the luggage compart-

ment where he found a totebag and two bricks of mari-

juana. Robbins was placed in the California Highway

Patrol vehicle, handeuffed behind his back with a seat

belt through his arm. Sergeant Stoltz photographed

the contraband while DePue administered the ‘‘Mi-

randa Warning’’ which Robbins replied to with a

lyrie entitled ‘‘The Realworld Rag,’’ reproduced in

the Appendix hereto. This occurred at 2:15 A.M. some

30 minutes after the initial stop and search.

The bricks of marijuana and the unidentified vial

were confiscated. At the end of the hearing to suppress

evidence pursuant to § 1538.5 of the California Penal

Code, Judge Randall ordered the still unidentified vial

returned when District Attorney Uldall said, ‘‘It is

no known controlled substance or narcotic, according

to Valley Toxicologists. Defense counsel had the vial

tested and identified by Hine Laboratory. It was de-

termined to be Amy] Nitrite, a cardiovaso-dilator, with

the effect of dilating the blood vessels and drastically

increasing the flow of oxygen to the brain causing

dizziness, impairment of the five senses and detach-

ment from reality on the part of the person(s) inhaling

the fumes, lasting for about 30 minutes. —

5

Before triai began, defense counsel sought to re-open

the hearing to suppress evidence based on evidence

which would establish the effect of Amyl Nitrite by

inhalation and would therefore make both officers’ testi-

mony unreliable. The judge refused to permit the

hearing to be re-opened on the grounds that California

law provides that a Motion to Suppress may be made

only once. The ruling was made in spite of the fact

that the identity of the substance and its euphoric

effect were unknown at the time of the hearing.

At the hearing on the Motion to Suppress, Officer

DePue testified that his basis for stopping the vehicle

was that the driving was erratic. He felt it was erratic

in great part because Mr. Robbins was driving too

slowly in what he thought was a 55 MPH zone. At the

trial, officer DePue admitted he was wrong, that in

fact the speed limit was 30 or 35, the same speed he

estimated the defendant to be driving originally. De-

fendant’s counsel sought to reopen the hearing on the

Motion to Suppress. That Motion was also denied.

During the course of the trial, petitioner sought to

discharge his attorney and asked to continue his de-

fense pro se. He stated to the Court that he felt his

attorney was acting in collusion with the District At-

torney and that his attorney was not entering certain

unspecified information in the record of trial. Com-

munication between the attorney and the client broke

down to the point that the attorney called the client’s

competence into question, forcing a competency hear-

ing and even at one point threatened physical violence

toward the client. The attorney further declined to

properly request a hearing on the client’s constitu-

tional complaint. The Motion was refused and trial

continued after a hearing to determine petitioner’s

6 eo

competency to stand trial. Petitioner was found com-

petent. He was also found guilty.

At sentencing petitioner offered constitutional com-

pleint against the statutes which made possession of the

vegetable, cannabis, a felony against the health and

safety of the State of California. The judge spoke of

his First Amendment rights on freedom of speech.

REASON FOR GRANTING THE WRIT

Point I. The Sixth Amendment Right To Defend Pro Se

Should Be Applied Retroactively.

During the course of petitioner’s trial, he sought to

remove his counsel and conduct his own defense. RT

316-324. The Motion was denied by the trial Court.

This Court recently held in Faretta v. California,

422 U.S. 806 (1975), that a defendant in a criminal

trial has the right to appear pro se in his own trial. The

right was found to be implied in the Sixth Amendment.

422 U.S. at 819. A few earlier Supreme Court decisions

as well as the views of the Federal Circuits and the

States themselves lent weight to the finding of such a

right. 422 U.S. at 812-832. The history of the British

and American colonies also formed a background to the

implied constitutional right of self representation.

The question here is whether this Court’s decision

in Faretta is to have retroactive application. The test

for retroactivity has come to be well established in re-

cent years. The major criteria being the ‘‘(a) purpose

to be served by the new standards; (b) the extent of

the reliance by law enforcement authorities on the old

standards; and (c) the effect of a retroactive applica-

tion on the new standards.’’ Stoval v. Denno, 388 U.S.

7

293 (1967). See also Tehan v. Shott, 382 U.S. 406

(1966) ; Linkletter v. Walker, 381 U.S. 618 (1965). It

‘should be noted the second two criteria have been dis-

regarded and retroactive effect given where the ‘‘major

purpose of a new constitutional doctrine is to overcome

an aspect of the criminal trial that substantially im-

pairs its truth finding function and so raises serious

questions about the accuracy of guilty verdicts in past

trials. . .”’ Adams v. Illinois, 405 U.S. 278 (1967), quot-

ing Williams v. United States, 401 U.S. 646 (1971).

Certainly a major purpose of the Faretta Rule goes

to the very heart of the truth finding process. The type

of evidence that a defendant may elect to put on at his

own trial to the extent it would differ from the strategy

of forced counsel can be critical and often determina-

tive of the outcome. No longer restricted by the tradi-

tional rule that the accused is bound by the tactical

decisions of counsel, the defendant desiring to repre-

sent himself can often do a better job in presenting his

case. The defendant’s sincerity and recollection of

events, usually the most valuable sources of relevant

evidence in a trial can be heard and weighed by the

trier of fact. In what was somewhat of an understate-

ment, the majority in Faretta noted: “it is not in-

conceivable that in some rare instances, the defendant

might in fact present his case more effectively by con-

ducting his own defense.’’ 422 U.S. at 833. In contrast,

forcing ‘‘a lawyer on a defendant can only lead him to

believe that the law contrives against him.’’ Id. The

point is that an accused’s resentment and _ hostility

created by forced counsel and officers of the Court,

often hinders and impedes the flow of information so

necessary to the search for truth at trial, partially on

the theory that the truth determining process was at

8

state. Other cases concerning the right of representa-

tion have been held to be retroactive. McConnell v.

Rhay, 393 U.S. 2 (168), (Right to Counsel at Sentene-

ing) Arsenault v. Mass., 393 U.S. 5 (1968), (Right to

Counsel at certain arraignments and at preliminary

hearings, where guilty pleas are heard.)

Since it is clear that the purpose of the Faretta Rule

clearly favors retroactivity, it should be unnecessary to

consider the remaining factors. Desist v. United States,

394 U.S. 294 (1969). Nevertheless the main criteria also

sustains the conclusion that Faretta should be retro-

actively applied.

The second element is the extent of reliance on the

old standard, The Faretta decision at several points

makes it apparent that its holding should have been

forseeable to law enforcement authorities and the

Courts. For example, each of the states, with few ex-

ceptions, had previously established the right to de-

fend pro se, 422 U.S. at 818. So had the Federal Courts

of Appeal. 422 U.S, at 816-817. An earlier Supreme

Court decision, Adams v. United States ex rel McCann,

317 U.S, 269, had definitely foreshadowed and antici-

pated the Faretta decision. Thus there has not been

justifiable reliance upon the old standard by the Courts

and law enforcement officers. Certainly the few juris-

dictions not affording the defendant the right should

not be rewarded for a recalcitrant, lets-wait-until-

after-its-decided approach, especially where the nat-

ural trend has long been to the contrary. See Desist

v. United States, 399 U.S. 244, 277 (Fortas J , dissent-

ing.)

Finally, retroactive application of Faretta would

likely have little burdensome affect on the administra-

9

tion of justice. Since only a few states and no federal

courts had failed to give the defendant a right to repre-

sent himself prior to Faretta the jurisdictions which

would be affected by retroactivity would be few, in

number. Even in such jurisdictions, it is only the occa-

sional defendant who elects to forego the guidance of an

attorney. Thus there would be a handful rather than

innumerable cases of claims to the constitutional right.

Cf. Michigan v. Payne, 412 U.S. 47.

Point Two. The Decisions Of This Court Do Not Establish

Across-the-Board Authority For Substantial Police Invasions

Of Privacy Based Upon A “Rational Suspicion” Standard.

In Terry v. Ohio, 392 U.S. 1 (1968), this Court sug-

gested police authority to stop and detain a criminal

suspect ‘‘where a police officer observes unusual con-

duct which leads him reasonably to conclude in light of

his experience that criminal activity may be afoot.”’ As

this Court stated in Adams yv. Williams: “The Fourth

Amendment does not require a policeman who lacks

the precise level of information necessary for probable

cause to arrest simply to shrug his shoulders and

allow a crime to oceur or a criminal to escape. 407 U.S.

143, 145 (1972).

Some lower Courts, however, have taken Terry as

an across-the-board authority for substantial police

intrusions based upon ‘‘rational suspicion’? that some

violation of law, including non-criminal vehicular mat-

ters, has occurred or is about to occur. Thus in People

v. Superior Court (Acosta), 20 Cal.App.3d 1085 (1971),

a California District Court of Appeal, relying upon

Terry, wpheld a highway stop to allow the police officer

to take a closer look at a can of Fanta brand orange

drink in a passenger’s hand, based upon the officer’s

‘‘rational suspicion’’ that it was a can of beer:

10

“The officer observed Padgett, a passenger in a

motor vehicle, drinking from what appeared to

be a beer can. While the container moll Sn been

a soft drink can, there was nevertheless a credible

rational suspicion that it was not; there was an

obvious suggestion that the conduct was in viola-

tion of the Vehicle Code. The officer accordingly

had the right (we think the duty) to investigate

further by stopping and temporarily detaining

Acosta’s car.’’ Id. at 1091.

The Court thereupon upheld a subsequent weapons

search which escalated into a conviction for dangerous

drugs.

In a similar manner, the officer who arrested Peti-

tioner herein observed his vehicle for a brief span of

seconds, made a snap judgment that his driving was

‘erratic’? and made an investigative stop. Although

the officer’s observations had been made through a dark

evening fog, and from a different road, up to a quarter

mile distant, no effort was made to confirm his judg-

ment through close observation. No claim was made

that the driving was in violation of the vehicle code and

no citations ever issued,

No such police authority, to make highway stops in

the middle of the night to investigate ‘erratic driving’’

or the identity of an aluminum can or a cigarette in a

passenger’s hand, is needed for the enforcement of the

vehicle laws. Given probable cause to believe that a

violation of the vehicle code has occurred, a highway

stop is authorized and appropriate. Absent probable

cause, exigent circumstances or some paramount gov-

ernment interest, e.g. United States v. Brignoni-Ponce,

95 S.Ct, 2574 (1975), police instrusions on the right of

ast «a

— ee

11

the motorist to be let alone are vexatious and offensive

to our notions of individual freedom.

Extending the Terry ‘‘rational suspicion’’ standard

to the ordinary highway stop allows nearly unlimited

police discretion to stop and detain motorists. It pro-

vides nearly blanket authority for a policeman to rudely

invade the privacy of those whom he would choose as

his targets, and slowly and subtly look for ways—by

looking and smelling, asking questions or by a weapons

search—to escalate the investigation into other more

substantial criminal areas. Inexorably such diseretion

is exercised against racial minorities and those whose

only transgression may be a non-conformist appearance

or attitude. ‘

Petitioner submits that Terry v. Ohio, was never in-

tended to permit such unlimited police diseretion and

its rule must be limited to its purposes: crime control

and protection.

Point Three. Upon Taking A Defendant Into Custody There

Should Be An Affirmative Obligation To Advise The Suspect

Of His Rights Rather Than Deliberately Waiting For The

Accused To Make An Inculpatory Statement.

‘The central theme of modern police interroga-

tion, is the application of tactics that will appeal to

physiology of the average mind and to his normal

emotive responses and susceptibilities.’’ Teh, ‘‘The

Yriminal Suspects Right to Silence; a Hollow

Shibboleth?’’, 4 University of Tasmania Law Re-

view, 113, 131.

When the police set out to obtain incriminating state-

ments from an accused there are many tacties that can

be used in this endeavor. Not all statements need to be

obtained by virtue of interrogation. In fact interroga-

a

12

tion has the distinct disadvantage of invoking the

entire panoply of procedural rights discussed in this

Court’s opinion in Miranda v. Arizona, 384 U.S. 436

(1964). However, if the police did not attempt to in-

terrogate the suspect, then they are under no obliga-

tion to advise a defendant of his rights. Thus the best

method by which a statement may be obtained may

well be not by interrogation by the police, but its op-

posite, silence,

In this case the police stopped petitioner on a public

road, He was asked for his driver’s license and registra-

tion. Upon smelling what the officer coneluded to be

marijuana, the officer proceeded to search the interior

of the vehicle. The defendant was placed under arrest

and handeuffed. The defendant became nauseous and

sick. He was put up against the side of the vehicle

while the officers proceeded to go about looking through

the vehicle. The defendant allegedly volunteered the

statement, ‘‘what you are looking for is in the back.”’

At no time was the defendant advised of his rights as

set out in the Miranda decision.

It is respectfully submitted that once a suspect has

taken into custody there arises an affirmative duty to

comply with the advice requirements of Miranda v.

Arizona. Such a holding would not expand Miranda,

but would rather accomplish its purpose recently artic-

ulated in Michigan v. Tucker, 417 U.S. 433 (1974). In

Tucker, this Court discusses the fundamental rationale

of the exclusionary rule in the context of the Miranda

case,

‘The deterrent purpose of the exclusionary rule

necessarily assumes that the police have engaged

in willful, or at the very least, negligent conduct,

13

which has deprived the defendant of some right.

By refusing to admit evidence gained as a result

of | such conduct, the Courts hope to instill in those

particular investigating officers, or in their future

counterparts, a greater degree of care toward the

rights of an accused. Where the official action was

pursued in complete good faith, however, the de-

terrence rationale loses much of its force,’’ 417

U.S. at 447,

The history of the evolving Constitutional Law of

the Fifth Amendment exhibits a number of trends, See

Brown v. Mississippi, 297 U.S. 278 (1936) ; Fay v. Nowa,

372 U.S. 391 (1963) ; Escobedo vy. Illinois, 378 U.S, 479

(1964) ; Rogers v. Richmond, 365 U.S. 534 (1961) ; and

Lisenda vy. California, 314 US. 219 (1941). However,

beginning with this Court’s reanalysis in Michigan v.

Tucker, supra, as also reflected in this Court’s logie in

Calandra v. United States, 414 U.S. 338 (1974) and

Michigan v. Mosley, 423 U.S. 96 (1975), it appears clear

that the concern of this Court is not whether strict

procedural rules were followed, but rather where

whether the conduct complained of amounted to police

behavior that is unacceptable in our system of criminal

justice.

In the Tucker case, this Court held that the mere

failure of the police to rigidly follow the proper words

of the Miranda decision, was not fatal to their attempt

to admit the evidence as the mistake was in good faith

and was not an attempt by the police to play fast and

loose with the Constitution. It is respectfully submitted

that when the police set out by their silence to aecom-

plish what they cannot do through interrogation, then

they are engaging in the type of fast and loose behavior

with the Constitution that this Court condemns. The

.

ore © * ont 61" — : = | a a

14

police set up a situation whereby they knew or should

have known that the defendant would be making verbal

statements. They had taken him into custody upon his

becoming sick. They asked him intimidating questions,

such as ‘Have you taken something detrimental to

your health?’’ They propped him up against the car

while they proceeded to conduct a search of the interior

of the vehicle. They asked him questions concerning the

filling out of a vehicle storage form. It was apparent

from all of the facts and circumstances of the case, that

the defendant would make an inculpatory statement

unless properly advised as to his rights to remain

silent and to counsel.

The action of the police are more important then the

rigorous following of an advice of a rights card. To

seek to deter improper police behavior requires that

this Court establish the rule that upon taking a suspect

into custody, he be advised of his right at that point

and not at some later point when the police decided to °

formally set him down and begin formal interrogation.

Such a rule does not expand Miranda, but rather limits

it to the deterrent purpose this Court has recently held

applies.

Point Four. A State May Not Limit By Statute And Court

Opinions Construing That Statute, The Right Of A De

fendant In A Criminal Case To Full And Fair Evidentiary

Hearing On His Motion To Suppress Evidence.

Section 1538.5 of the California Penal Code, as in-

terpreted and applied by the Courts of California, un-

duly constricts the right to a full and fair hearing on

a Motion to Suppress evidence deemed excludable on

constitutional grounds. Its procedural unfairness was

twice demonstrated in the proceedings below.

15

At the time of the arrest of the petitioner, a vial of

liquid, which petitioner used to start his engine, was

taken by the arresting officers, opened and inhaled. It

was confiscated by the police and not returned until

after petitioner’s Motion to Suppress came on for

hearing and was denied. Upon return of the vial of

liquid, petitioner’s counsel had it analyzed by a toxi-

cologist, who determined that it was amyl nitrite, the

effect of which upon inhaling is to create a dilation of

the blood vessels, greatly increasing the flow of oxygen

to the brain and temporarily distorting the ability of

the person who has inhaled the substance, to perceive

reality. At the outset of the trial, petitioner sought to

bring these facts to the attention of the trial judge and

reopen the hearing on the Mofion to Suppress, it being

the contention of the petitioner that the inhalation of

the amy] nitrite by the officers made it virtually impos-

sible for them to perceive the events of which they

testified at the hearing on the Motion to Suppress. The

trial Court refused the request to reopen the hearing,

noting that the matter should have been brought to

his attention when the Motion to Suppress was heard,

even though the vial of liquid was in the possession of

the police and its identity and affects unknown until

after the hearing on the Motion to Suppress.

At the hearing on the Motion to Suppress, Officer

DePue testified that his basis for stopping the vehicle

was that the driving was erratic. He felt it was erratic

in great part because Mr. Robbins was driving too

slowly in what he thought was a55 MPT zone, At the

trial, Officer tePue admitted he was wrong, that in

fact the speed limit was 30 or 35, the same speed he

estimated the defendant to be driving originally. De-

fendant’s counsel sought to reopen the hearing on the

Motion to Suppress. That Motion was also denied.

16

California Penal Code, Section 1538.5 provides the

procedural framework in which a defendant may move

to suppress evidence. A copy of said statute is repro-

duced and attached hereto in the Appendix. The section

provides: ‘‘a defendant may move for the return of

property or to suppress as evidence any tangible or

intangible thing obtained as a result of search or seizure

on either of the following grounds:

‘**(1) The search or seizure without a warrant was

unreasonable. . .”’

The statute further provides: ‘‘whenever search or

seizure Motion is made in the Municipal, Justice or

Superior Court as provided in this section, the judge

or magistrate shall receive evidence on any issue of fact

that is necessary to determine the Motion.’ Penal

1538.5(¢). _—

Finally the statute provides that: “‘if, prior to the

trial of a felony or misdemeanor, opportunity for this

Motion did not exist or the defendant was not aware of

the grounds for the Motion, the defendant shall have

the right to make this Motion, during the course of trial

in the Muncipal, Justice or Superior Court.” P

Code, Section 1538.5 (h). a

Although the statute by its language appears to per-

mit a defendant to bring matters to the attention of

the judge which were not known at the time the original

hearing on the Motion to Suppress was made, the Cali-

fornia case law is to the effect that the pretrial Motion

to Suppress can be made only once. Madril vy. Superior

Court, 15 Cal.3rd 73, 77 (1975). See also People v

O’Brien, T1 Cal.2d 394, 79 Cal. Rptr. 313, 456 P24 169

(1971). The rationale for this rule is to “‘reduce un-

necessary waste of judicial time.”’ Madril v. Superior

supra, quoting People vy. Superior Court ( Edmonds).

4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202 (1971).

17

The officer’s mistaken belief about the speed limit

was a substantial factor in the Court’s denial of the

Motion to Suppress. It was also deemed important by

the Court of Appeal in its opinion. Yet the trial Judge

felt that state law did not permit a reopening of the

Motion to Suppress hearing and the denial of the Mo-

tion was permitted to stand even though based on crit-

ical errors of fact for which the State itself was re-

sponsible.

The ability of the arresting officers to perceive the

events surrounding the Search and Seizure was founda-

tional to the State’s right to charge petitioner. If the

arresting officers had inhaled a drug as to which there

was expert medical testimony indicating that the drug

would have a substantial deleterious effect on their

ability to perceive, then the defendant should be able

to bring that fact to the attention of the judge that

hears the Motion to Suppress. In this case, he was

not beeause the liquid which was inhaled was confis-

eated by the police and kept in their possession until

after the hearing of the Motion to Suppress.

The Fourth Amendment serves to protect the indi-

vidual against the improper actions of government offi-

cials. Lanza v. New York, 370 U.S. 138; Jones v. United

States, 362 U.S. 257; Stefanelli v. Minard, 342 US.

117. It is made applicable to the states through the due

process clause of the Fourteenth Amendment. Mapp v.

Ohio, 367 U.S. 634.

The Fourteenth Amendment to the Constitution of

the United States provides that no person shall be de-

prived of his life, liberty or property without due proc-

ess of law. Due process, if it has any content at all,

at the very least means that an accused in a criminal

proceeding be provided an opportunity to present his

evidence and to be heard on his Motion to Suppress.

18

This hearing must be meaningful and full. It violates

due process to require the defendant to put forth only

such evidence as he knows at pretrial and to deny him

the right to present further evidence unavailable to

him due to police possession and control.

It equally violates due process to permit a Court

decision to be immune from review and reconsidera-

tion when that decision is founded upon crucial errors

of fact for which the State itself is responsible.

A State may not be law or judicial fiat authorize

conduct which infringes upon the rights of the Fourth

Amendment. Sibron v. New York, 392 U.S. 40 (1968) ;

Kerr v. California, 374 U.S. 23. See also West v. Amer-

ican Telephone and Telegraph, 311 U.S. 223.

The State in this ease by state law denied petitioner

his right to a full and complete herring on his Motion

to Suppress. State law may not so infringe upon the

fundamental right of due process.

Point Five. State Law May Not Arbitrarily Declare Fungible

Vegetables To Be Poison, So Vile As To Be Declared

Contraband, Subject To Seizure and Destruction And Arrest

Of The Owner With Subsequent Scrutiny. And Forbid

Commerce In Said Goods By Use Of A Sumptuary Law

Which Has No Rational Or Apparent Reason.

JEFFREY RicHARD Rossrns was searched, handeuffed,

placed against his vehicle and felled by carbon mon-

oxide fumes, arrested and thrown in jail because two

police officers found a green leafy vegetable substance

was seized and Jeffrey Robbins was tried, convicted,

and sentenced to five years to life in San Quentin

Prison for this possession and transportation of the

vegetable, marijuana. He was bothering no one. He was

committing no offense against the rights of others or

their general welfare. Yet the legislature of California

19

has enacted legislation which incarcerated him with

many violent criminals for possession and transporta-

tion of marijuana. This same law, which if enacted in

1774, would have made criminals out of George Wash-

ington and Thomas Jefferson. It is of the failure of

these laws to meet the fundamental standards of con-

stitutional propriety as defined in the Preamble to the

Constitution and its Amendments, and the usurpation

of powers, left to the people in the Constitution, by

the State of California, in particular, that petitioner

complains. He stated the substance of his complaint at

the time of sentencing.’

1**Pardon me if I’m wrong. I ask for the dismissal of all charges

for the following reasons: First, this law is criminal not me.

Secondly, it is my contention that the present laws against can-

nabis sativa, a vegetable, interfere with the unalienable rights to

life, liberty and the pursuit of happiness. Thirdly, that these laws

do not derive from the consent of a majority of those persons

presently governed by California or the United States. Fourth,

that these laws have become and are destructive of the rights de-

manded in the Declaration of Independence and guaranteed in the

Federal Constitution. Fifth, these laws are in contravention with

the Laws of Nature, the Magna Charta, the Declaration of Inde-

pendence and the Constitution of these United States, Sixth, these

laws are based on misinformation and lies and exist for the en-

richment of a small minority and the oppression of the people as

a whole.

The refusal of the Kings of England and France to give their

assent to laws for the common good of their respective people was

considered by those people to be just cause for violent revolutions.

These laws should be abolished since they do not exist for the

common good of the people and they interfere with the basic

guarantees of freedom on which our great nation is based. That

we are legally allowed to consume the virulent cancer causing

poison of nicotine and the protein poison of aleohol, yet a harmless

herb remains illegal is a travesty of justice. I seek proper redress

in the Courts. In keeping with the spirit of the law and the consent

of the governed, these laws which limit the freedom of every

American should be abolished, In the interests of justice I ask

again that all charges be dismissed.

a

20

Extensive studies dating back as early as 1893 have

been conducted concerning the use of marijuana. See

the Report of the Indian Hemp Drugs Commission

(1893-1894). The culmination of the studies has been

most recently the White Paper on Drug Abuse Task

Force, September 1975. Dozens of reports span the in-

terim. The data is essentially collected. The conclusion

is the same. Marijuana produces no demonstrable

physiological harm and the laws regulating its use,

transportation and sale have no rational relationship

to a justifiable state end. The White Paper reports:

‘*Marijuana is the most widely used illicit drug, with

an estimated twenty percent of Americans over the

age of eleven—twenty-five to thirty million people—

having used it at least once. In short, marijuana has

joined alcohol and tobaceo as one of the widely used

drugs in the United States.’’ These figures are further

corroborated by the National Commission on Mari-

juana and Drug Abuse in America, Problems in Pro-

spective, the Second Report of the National Commis-

sion on Marijuana and Drug Abuse (March 1973) at

p. 64. The National Commission reported that among

users ‘‘no significant physical, biochemical, or mental

abnormalities could be attributed solely to the mari-

juana smoking.’’ Marijuana; a Signal of Misunder-

standing, First Report of the National Commission on

Marijuana and Drug Abuse (March 1972) at p. 61. The

study has found specifically against the belief that

marijuana directly causes criminal behavior. Rather

the commission found that marijuana inhibits ‘‘the

expression of aggressive impulses by pacifying the

user, interferring with muscle coordination, reducing

psychomotor activities and generally producing state

of drowsiness, lethargy, timidity, passivity.’ Ib. pp.

21

70-71. It is also an interesting statistic that eighty-one

percent of the people arrested for marijuana related

crimes have never been convicted of a drug related

crime. Marijuana; A Signal of Misunderstanding, Ap-

pendix II at p. 622. See also Marijuana: Beyond Mis-

understanding, Final Report of the California Senate

Select Committee on Control of Marijuana, 1974.

The experts further tend to be in agreement that

aleoholism is a much more serious and significant prob-

lem then all other forms of drug abuse combined. See

the Canadian Commission of Inquiry into the Non-

Medical Use of Drugs. Interim Report 1970 p. 39.

There is a substantial conflict in the Courts of this

country concerning the Constitiitional validity of mari-

juana laws. It is noteworthy however, that in recent

years there has been substantial judicial support of the

Constitutional challenge that petitioner makes in this

case. Most recently the Supreme Court of Alaska in

Ravin v. Alaska, 537 P.2d 494 (1975) held that state

law proscribing the private possession of marijuana

violated an individual’s right to privacy and that there

was no rationale basis on which the legislature could

make possession of marijuana criminal. That Court

relied on this Court’s privacy decisions in Griswold v.

Connecticut, 381 U.S. 479 (1965) ; Stanley v. Georgia,

394 U.S. 557 (1969) and Roe v. Wade, 410 U.S. 113

(1973).

In so holding ihe Alaska Supreme Court reviewed in

great detail the bases currently tendered as justifica-

tion for state prohibition of possession of marijuana.

They hold:

‘‘it appears that the use of marijuana, as it is

presently used in the United States today, does not

LL

22

constitute a public health problem of any’ signifi-

cant dimensions. It is, for instance, far more in-

nocuous in terms of physiological and social dam-

age than alcohol or tobaceo.’’ Id. p. 506,

In declaring the law unconstitutional, the Court

notes that ‘‘the state can not impose its own motions of

morality, propriety, or fashion on individuals when the

public has no legitimate interest in the affairs of those

individuals.’’ Id. p. 509.

Although no other State Supreme Court or Federal

Court has declared a marijuana law unconstitutional

there is increasing support by various high Court ju-

dicial officers throughout the country. In reversing a

marijuana conviction, Justice Kavanaugh, concurring

with the majority of the Michigan Supreme Court

states, ‘‘I find that our statute violates the Federal and

State Constitutions in that it is an impermissable in-

trusion on the fundamental right to liberty and pursuit

to happiness, and is unwarranted interference in the

right to possess and use private property.’’ People v.

Sinclair, 387 Mich. 91, 194 N.W.2d 878, 896 (1972). In

State v. Kantner, 493 P.2d 306, 312, concurring Justice

Abe states: ‘‘I believe that the right to enjoyment of

life, liberty and the pursuit of happiness includes

smoking of marijuana, and ones right to smoke mari-

juana may not be prohibited or curtailed unless such

smoking affects the general welfare.’’ See also the dis-

sent of Levinson, J. Id. pp. 313-318.

In the only opinion relating to the question of sale,

Justice T, G. Kavanaugh concurring in People vy. Lo-

rentzen, 194 N.W. 2d 827, 834, states: ‘The right to

possess and use something, however, has little meaning

unless one also has the right to acquire it, and hence

23

proscription of sale cannot be reconciled with a right

to possess and use.”’

“Tt may be some legitimate public interest served

by the regulation of traffic in marijuana, but a statute

which absolutely forbids the sale of marijuana is as

offense to the right of privacy and the pursuit of hap-

piness as a statute which forbids its possession and

use.’’ See also 313 A.D. Edict of Milan; clause 39,

Magna Carta.

Historically our marijuana laws are the product of

prejudice and ignorance: prejudice against the habits

of Mexican-Americans and other dark skinned Ameri-

cans, and ignorant belief that their pleasure habits are

somehow deprived and less Worthy than white anglo-

saxon pleasure habits. Marijuana: A Signal of Mis-

understanding, at p. 13; App.vol.1 at pp. 482-484. The

marijuana laws, enacted and re-enacted without public

attention and debate, are not deserving of the respect

and presumptions ordinarily associated with legisla-

tive conduct.

It is only now that we have come to realize the legal

monster created by this legislative misconduct and mal-

feasance. The marijuana laws are self-destructive and

contrary to the high ideals upon which our society is

based. Our Constitution was created ‘tin Order to form

a more perfect Union’’ of our people. United States

Constiution, Preamble. Yet our marijuana laws, mak-

ing felons out of a whole generation of Americans, do

more to destroy that Union and the respect for law

which we cherish than any other laws in this history of

our country.

The use of marijuana, despite the laws making its

possession a felony, is a part of the American way of

a

24

life. This Court can not alter that by ignoring its

presence. It is the responsibility of the Court to rule

on the great issues of our time and this certainly is one

issue which affects as many if not more people than

any issue to come before this Court.

CONCLUSION

For these reasons a Writ of Certiorari should be

granted.

Respectfully submitted,

JEFFREY RICHARD ROBBINS

Pro Se

202 Brazil Street

San Francisco, California 94112

Of Counsel:

Tuomas EK. Horn

Attorney at Law

1701 Franklin Street

San Francisco, California 94109

(415) 441-1484

JosepH G. BAXTER

Attorney at Law

Box 562

Sausalito, California 94965

(415) 332-5490

APPENDIX

=

oo.

la

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION FOUR

Tue Proriz, Plaintiff and Respondent,

v.

Jerrrey Ricnarp Rossins, Defendant and Appellant.

1/Crim. 14387

(Superior Court No, 10357)

Tue Court:

Jeffrey Richard Robbins appeals from a judgment of

imprisonment which was rendered after a jury found him

guilty of possession of marijuana (Health & Saf. Code,

§ 11357), possession of marijuana for sale (Health & Saf.

Code, § 11359) and transportation of marijuana (Health &

Saf. Code, § 11360).

Two highway patrol officers saw appellant’s car travel-

ing at about 30 miles per hour in a 55 mile-per-hour zone

on Interstate 80. At the same time, the vehicle was seen to

be drifting erratica''y across lanes; at one time approxi-

mately the full width of the vehicle was to the left of the

center lane of the freeway. The officers stopped the car,

whereupon appellant immediately stepped out. Appellant

was requested to produce a driver’s license and vehicle

registration. When appellant entered his car to obtain the

certification of registration, one of the officers detected the

smell of burning marijuana coming from the car. The car

was then searched. One of the officers found marijuana and

paraphernalia. Thereafter, appellant volunteered the state-

ment that what the officers were looking for was ‘‘in the

back.’’ In the rear compartment of appellant’s car the

officers then found approximately 30 pounds of marijuana.

* Before Caldecott, P.J., Rattigan, J., and Christian, J.

2a

Appellant testified at trial that the marijuana was not

his and that it had apparently been placed in the car by an

unknown female who had asked him to drive her to Los

Angeles.

Appellant contends, citing Faretta v. California (1975)

422 U.S. 806, 45 L.Ed.2d 562, that a deprivation of due

process occurred when the court declined to allow appellant

to discharge his counsel during the trial. The Attorney

General contends that the holding of the United States Su-

preme Court in Faretta should not be given retroactive

effect. After the briefs in the present appeal had been

filed, the California Supreme Court rendered its decision

in People v. McDaniel (1976) 16 Cal.3d 156, holding that

the right of self-representation announced in Faretta is to

be applied only prospectively in those cases where in an

accused seeks to assert his right of self-representation in

a trial which has commenced after June 30, 1975. The trial

in the present action commenced on April 22, 1975. There-

fore, appellant’s contention is unavailing.

Appellant contends that the officer was not justified in

stopping the car or in searching it. But it was reasonable

for the officer to stop the car when he saw it weaving about

upon the highway (People v. Boddie (1969) 274 Cal.App.

2d 408). Then, upon smelling the odor of burned marijuana,

the officer had reasonable cause to believe that appellant

was in possession of marijuana (People vy. Fitzpatrick

(1970) 3 Cal.App.3d 824). The ensuing search of the vehicle

was lawful (People v. Laursen (1973) 8 Cal.3d 192),

Appellant contends that when the court declared that

there was a doubt as to appellant’s mental capacity it acted

improperly in considering the reports of the medical ex-

aminers without the aid of a jury (citing Pen. Code, §§ 1368,

1369). It is true that appellant would apparently have been

entitled to a jury to determine the question of his compe-

tency to stand trial if a demand had been made. But here,

no such request was addressed to the court. ‘‘ Absent a de-

3a

mand by the defendant, a jury trial under section 1368 is

not required.’’ (People v. Sanchez (1969) 275 Cal.App.2d

226, 232). The court acted correctly in receiving the reports

of the medical examiners and determining the question of

competency without the assistance of a jury.

Appellant contends that the court erred in restricting the

cross-examination by the defense of the court appointed

psychiatrist on the question of appellant’s mental capacity.

A possible defense of diminished capacity was pertinent

to the charge of possession of marijuana for sale. That

circumstance was evidently understood by the court, and

testimony concerning appellant’s paranoid feelings was re-

ceived. But in an extensive cross-examination defense coun-

sel appeared purposely to avoid the question of diminished

capacity. It is possible that 4he two medical examiners

could have produced additional evidence bearing on the

issues of the case. But the court did not exclude any ap-

parently pertinent evidence and defense counsel made no

offer of proof showing ‘‘the substance, purpose, and rele-

vance [of any additional matter that he wished to pur-

sue.]” (Evid. Code, § 354, subd. (a).) Therefore, appellant

cannot be heard to maintain on appeal that the court should

have allowed broader latitude in the cross-examination of

the two psychiatrists. (People v. Jones (1960) 177 Cal.

App. 2d 420.)

Appellant contends, citing People v. Heard (1968) 266

Cal.App.2d 747, that the tria’ -ourt’s handling of a motion

to suppress evidence under Penal Code section 1538.5 was

deficient in that it showed reluctance ‘‘to resolve factual

questions effectively.’’ This contention is obscure: there

was substantial evidence supporting the court’s determina-

tion that the search was lawful and any factual conflicts

were resolved adverse to appellant’s position by the court’s

order denying the motion to suppress evidence. (See People

v. Peterson (1973) 9 Cal.3d 717.) |

The judgment is affirmed.

4a

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIRST APPELLATE DISTRICT

DIVISION FOUR

1/Crim. No. 14387

People of the State of California,

Plaintiff and Respondent,

vs.

Jeffrey Richard Robbins,

Defendant and Appellant.

(filed June 30, 1976)

By Tue Court:

The motion to vacate judgment and set new filing date is

granted. The opinion filed June 1, 1976 in the appeal herein

is ordered vacated and refiled.

Caupecorr, P.J.

Dated: June 30, 1976

| —- - s

5a

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIRST APPELLATE DISTRICT

DIVISION FOUR

No. 1/Crim. 14387

(Caption omitted in printing)

By Tue Covrt:

The written opinion of this court, filed June 30, 1976,

is modified as follows: On page 4, delete the last line (the

disposition of the case), and substitute the following.

In the circumstances presented in this record possession

of marijuana (Health & Saf. Code, § 11357) is an offense

included within possession of marijuana for sale (Health

& Saf. Code, § 11359). The lesser offense cannot stand as

a separate conviction. Moreover, the two remaining counts

represented a single act; hence the punishment under sec-

tion 11359 must be stayed. (People v. Sanders (1967) 250

Cal.App.2d 123.)

The judgment is reversed as to the conviction of viola-

tion of Health & Safety Code section 11357; the punish-

ment for violation of Health & Safety Code section 11359

is stayed, the stay to become permanent upon completion

of the term for violation of Health & Safety Code section

11360. In all other respects the judgment is affirmed.

The petition for rehearing is denied.

Caxpecorr, P.J.

Dated: July 22, 1976

6a

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

(Caption omitted in printing)

Modification of Opinion

By Tue Court:

The written opinion filed on June 30, 1976, and modified

on July 22, 1976, is further modified on page 1 thereof, by

changing the first two sentences of the second paragraph

to read as follows:

‘*Two highway patrol officers saw appellant’s car travel-

ing at about 30 miles per hour in a 55 mile-per-hour zone.

At the same time, the vehicle was seen to be drifting errati-

cally; at one time approximately the full width of the ve-

hicle was to the left of the center line of the roadway.”’

Ca.pecort, P.J.

Date: July 27, 1976

ee ee Gee eee

7a

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

In Bank

Order Denying Hearing After Judgment by the

Court of Appeal

1st District, Division 4, Crim. No. 14387

Order Due September 20, 1976

PEOPLE

v.

Rossins

(filed September 15, 1976)

Appellant’s petition for hearing Dentep.

Wricnt, Chief Justice

§ 1538.5 Motion to return property or suppress evidence

(a) Grounds

(a) A defendant may move for the return of property

or to suppress as evidence any tangible or intangible thing

obtained as a result of a search or seizure on * * either of

the following rounds:

(1) The search or seizure without a warrant was unrea-

sonable * * *.

(2) The search or seizure with a warrant was unreason-

able because (i) the warrant is insufficient on its face; (ii)

the property or evidence obtained is not that described in

the warrant; (iii) there was not probable cause for the

issuance of the warrant; (iv) the method of execution of

the warrant violated federal or state constitutional stand-

ards; or (v) there was any other violation of federal or state

constitutional standards.

(b) First hearing

(b) When consistent with the procedures set forth in

this section and subject to the provisions of Section 170

through 170.6 of the Code of Civil Procedure, the motion

should first be heard by the magistrate who issued the

search warrant if there is a warrant.

(c) Evidence

(c) Whenever a search or seizure motion is made in the

municipal, justice or superior court as provided in this

section, the judge or magistrate shall receive evidence on

any issue of fact necessary to determine the motion.

(d) Effect of granting motion

(d) If a search or seizure motion is granted pursuant to

the proceedings authorized by this section, the property

or evidence shall not be admissible against the movant at

any trial or other hearing unless further proceedings au-

thorized by this section or Section 1238 or Section 1466 are

utilized by the people.

(e) Return of property

(e) If a search or seizure motion is granted at a trial,

the property shall be returned upon order of the court un-

less it is otherwise subject to lawful detention. If the motion

is granted at a special hearing, the property shall be re-

turned upon order of the court only if, after the conclusion

of any further proceedings authorized by this section or

Section 1238 or Section 1466, the property is not subject to

lawful detention or if the time for initiating such proceed-

ings has expired, whichever occurs last. If the motion is

granted at a preliminary hearing, the property shall be re-

turned upon order of court after 10 days unless the property

is otherwise subject to lawful detention or unless, within

that time, further proceedings authorized by this section

ABT ine RAI EE.

9a

or Section 1238 are utilized; if they are utilized, the prop-

erty shall be returned only if, after the conclusion of such

proceedings, the property is no longer subject to lawful

detention.

(f) Felony; motion at preliminary hearing

(f) If the property or evidence relates to a felony offense

initiated by a complaint, the motion may be made in the

municipal or justice court at the preliminary hearing.

(g) Misdemeanor; pre-trial motion at special hearing

(gz) If the property or evidence relates to a misdemeanor

complaint, the motion shall be made in the municipal or

justice court before trial and heard prior to trial at a special

hearing relating to the validtty of the search or seizure.

If the property or evidence relates to a misdemeanor filed

together with a felony, the procedure provided for a felony

in this section and Sections 1288 and 1539 shall be ap-

plicable.

(h) Motion at trial

(h) If, prior to the trial of a felony or misdemeanor, op-

portunity for this motion did not exist or the defendant

was not aware of the grounds for the motion, the defendant

shall have the right to make this motion during the course

of trial in the municipal, justice or superior court. * * *

(i) Felony; renewal of motion at special hearing; review

(i) If the property or evidence obtained relates to a

felony offense initiated by complaint and the defendant was

held to answer at the preliminary hearing, or if the prop-

erty or evidence relates to a felony offense initiated by in-

dictment, the defendant shall have the right to renew or

make the motion in the superior court at a special hearing

relating to the validity of the search and seizure which

10a

shall be heard prior to trial and at least 10 days after notice

to the people unless the people are willing to waive a por-

tion of this time. The defendant shall have the right to liti-

gate the validity of a search or seizure de novo on the basis

of the evidence presented at a special hearing. After the

special hearing is held in the superior court, any review

thereafter desired by the defendant prior to trial shall be

by means of an extraordinary writ of mandate or prohibi-

tion filed within 30 days after the denial of his motion at

the special hearing.

(j) Relitigation of question after grant of motion; new

evidence, review

(j) If the property or evidence relates to a felony offense

initiated by complaint and the defendant’s motion for the

return of the property or suppression of the ... . evi-

dence at the preliminary hearing is granted, and if

the defendant is not held to answer at the preliminary

hearing, the people may file a new complaint or seck an

indictment after the preliminary hearing, and the ruling

at the prior hearing shall not be binding in any subsequent

proceeding. If the property or evidence relates to a felony

offense initiated by complaint and the defendant’s motion

for a return or suppression of the property or evidence at

the preliminary hearing is granted, and if the defendant is

held to answer at the preliminary hearing, the ruling at

the preliminary hearing shall be binding upon the people

unless, upon notice to the defendant and the court in which

the preliminary hearing was held and upon the filing of an

information, the people within 10 days after the preliminary

hearing request in the superior court a special hearing in

which case the validity of the search and seizure shall be

relitigated de novo on the basis of the evidence presented

at the special hearing, and the defendant shall be entitled,

as a matter of right, to a continuance of the special hearing

for a period of time up to 30 days. If defendant’s motion

is granted at a special hearing in the superior court, the

OL are OE. See ee

_—

lla

people, if they have additional evidence relating to the

motion and not presented at the special hearing, shall have

the right to show good cause at the trial why such evidence

was not presented at the special hearing and why the prior

ruling at the special hearing should not be binding, or the

people may seek appellate review as provided in subdivi-

sion (0) * * *, unless the court prior to the time such

review is sought has dismissed the case pursuant to Section

1385. If the property or evidence seized relates solely to a

misdemeanor complaint, and the defendant made a motion

for the return of property or the suppression of evidence

in the municipal court or justice court prior to trial, both

the people and defendant shall have the right to appeal

any decision of that court relating to that motion to the

superior court of the county in which such inferior court

is located, in accordance with the California Rules of Court

provisions governing appeals from municipal and justice

courts in criminal cases. If the people prosecute review by

appeal or writ to decision, or any review thereof, in a felony

or misdemeanor case, it shall be biading upon them.

(k) Release of defendant pending resumption of pro-

ceedings in trial court

(k) If the defendant’s motion to return property or sup-

press evidence is granted and the case is dismissed pur-

suant to Section 1385, or the people appeal in a misde-

meanor case pursuant to subdivision (j) * * *, the defendant

shall be released pursuant to Section 1318 if he is in custody

and not returned to custody unless the proceedings are

resumed in the trial court and he is lawfully ordered by

the court to be returned to custody.

If the defendant’s motion to return property or suppress

evidence is granted and the people file a petition for writ

of mandate or prohibition pursuant to subdivision (0) or

a notice of intention to file such a petition, the defendant

shall be released pursuant to Section 1318 unless (1) he is

12a

charged with a capital offense in a case where the proof

is evident and the presumption great, or (2) he is charged

with a noncapital offense defined in Chapter 1 (commencing

with Section 187) of Title 8 of Part 1 and the court orders

that the defendant be discharged from actual custody upon

bail.

(1) Stay; time for trial; dismissal; continuance; bail or

release

(l) If the defendant’s motion to return property or sup-

press evidence is granted, the trial of a criminal case shall

be stayed to a specified date pending the termination in

the appellate course of * * * this state * * * of the pro-

ceedings provided for in this section, Section 1238, or Sec-

tion 1466 and, except upon stipulation of the parties, pend-

ing the time for the initiation of such proceedings. Upon

the termination of such proceedings, the defendant sholl

be brought to trial as provided by Section 1382, and subject

to the provisions of Section 1382, whenever the people have

sought and been denied appellate review pursuant to sub-

division (0) * * *, the defendant shal! be entitled to have

the action dismissed if he is not brought to trial within

30 days of the date of the order which is the last denial of

the petition. Nothing contained in this subdivision shall

prohibit a court, at the same time as it rules upon the search

and seizure motion, from dismissing a case pursuant to

Section 1385 when such dismissal is upon the court’s own

motion and is based upon an order at the special hearing

granting defendant’s motion to return property or sup-

press evidence. In a misdemeanor case, the defendant shall

be entitled to a continuance of up to 30 days if he intends

to file a motion to return property or suppress evidence

and needs this time to prepare for the special hearing on

the motion. In case of any appeal by the defendant in a mis-

demeanor case from the denial of such motion, he shal] be

entitled to bail as a matter of right, and, in the discretion

13a

of the trial or appellate court, may be released on his own

recognizance pursuant to Section 1318.4.

(m) Exclusive pre-trial remedy; review on appeal after

conviction

(m) The proceedings provided for in this section, See-

tion 995, Section 1238, and Section 1466 shall constitute the

sole and exclusive remedies prior to conviction to test the

unreasonableness of a search or seizure where the person

making the motion for the return of property or the sup-

pression of evidence is a defendant in a criminal case and

the property or thing has been offered or will be offered as

evidence against him. A defendant may seek further review

of the validity of a search or seizure on appeal from a con-

viction in a criminal case notwithstanding the fact that

such judgment of conviction ‘is predicated upon a plea of

guilty. Such review on appeal may be obtained by the

defendant providing that at some stage of the proceedings

prior to conviction he has moved for the return of property

or the suppression of the evidence.

(n) Motions on other grounds; existing law and procedure

(n) Nothing contained in this section shall prohibit a

person from making a motion, otherwise permitted by law,

to return property, brought on the ground that the prop-

erty obtained is protected by the free speech and press pro-

visions of the Federal and State Constitutions. Nothing in

this section shall be construed as altering (i) the law of

standing to raise the isue of an unreasonable search or

seizure; (ii) the law relating to the status of the person

conducting the search or seizure; (iii) the law relating to

the burden of proof regarding the search or seizure; (iv)

the law relating to the reasonableness of a search or seizure

regardless of any warrant which may have been utilized; or

(v) the procedure and law relating to a motion made pur-

suant to Section 995 or the procedures which may be

initiated after the granting or denial of such a motion.

l4a

(o) People’s petition for mandate or prohibition; notice

of intention

(o) Within 30 days after a defendant’s motion is granted

at a special hearing in the superior court, the people may

file a petition for writ of mandate or prohibition, seeking

appellate review of the ruling regarding the search or

seizure motion. If the trial of a criminal case is set for a

date which is less than 30 days from the granting of a

defendant’s motion at a special hearing in the superior

court, the people, if they have not filed such a petition and

wish to preserve their right to file such a petition, shall

file in the superior court on or before the trial date or within

10 days after the special hearing, whichever occurs last, a

notice of intention to file such a petition and shall serve a

copy of the notice upon the defendant.

. * . % * . * * * *

THe ReaLtwor_p Rac

In a world full of thieves and liars, dopehounds in sundry

strange attires, we all know what greed inspires.

The real world was a drag, so now we’ll start the Realworld

Rag.

What made me do it? Was it God or the Devil?

What brought you to it? Was it part of the revel?

What if we blew it? Was it on the level?

Horrified that I’d hide what was inside.

Now you know what snapped me go was my trapped ego.

For a nut, either/or, neither/nor, and/or/but, was not what

Sought fullfilling was an American unwilling to share

poisons so killing.

And yet, I’m as real as can be. Its the spirit must be free.

Yes, I’m as real as can be. Its the Self you must see.

Acting oh so funny to every loving honey chasing dope or

money.

a Tad

l5a

Used favors and advice, fruits of labor and/or vice, for-

getting what was nice, never thinking twice.

Created what was earned, often got burned, see what I

learned.

The game some folks play is, ‘‘Take what they can and

that’s when they say”,

Stop tue Music, Don’t Go Away Map, Just Go Away!!!!

Think that’s cold?

Think that’s bold?

Think that’s old?

Sometimes love confounds you.

Sometimes nerve astounds you.

Sometimes magic surrounds you.

Now listen well. I went through hell and came back to tell

Found Hell right here on Earth, heaven too for what its

worth.

Didn’t feel fine until I stood up to shine in my light divine.

When I became aware, the way was clear beyond my fear.

Yes, I’m as real as ean be. Need to live lovingly.

Yes, I’m as real as can be. Don’t want an enemy.

Ilesitate about your fate. My life can’t wait until its too late.

But don’t call me weird because I’m not scared to get it

cleared.

Might want to dust me, maybe just bust me, easier just

_ . trust me. )

Say you didn’t want to, how was it you got to, just who

chased whom?

What made me do it? It was God and the Devil.

What brought youtoit? . It was part of the revel.

What if we blew it? It was on the level.

A world full of performers for hire, bizarre persons for odd

desire, do anything their love might require.

Spend the rest of my life being free performing my ragtime

eacaphony.