# Petition — Robbins v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1010%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 945 ## Text FI DEC 14 } 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1010%3A1. Public record. Not legal advice.