Petition — Stevens v. New Jersey

Supreme Court, U. S.

FI'ED

80-135 JUL 28 1980

eo MICHAEL ROVAK, JR., CLERK,

Supreme Court of the United States

OcrosBer TERM, 1980

No. A-6

RONALD M. STEVENS,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

PeriTION FOR A Writ OF CERTIORARI TO THE APPELLATE DIVISION,

SupeRIOR Court oF NEw JERSEY

PETITION FOR A WRIT OF CERTIORARI

MATTHEW P. BOYLAN,

Counsel of Record for Petitioner,

ROGER A. LOWENSTEIN

PHILIP ROSENBACH

LOWENSTEIN, SANDLER, BROCHIN,

KOHL, FISHER & BOYLAN,

A Professional Corporation

Attorneys for Petitioner,

Ronald M. Stevens,

65 Livingston Avenue,

Roseland, New Jersey 07068

(201) 992-8700

N.J. Appellate Printing Co., Inc., So. Plainfield, New Jersey (201) 753-0200

QUESTIONS PRESENTED

1. Has petitioner been denied his rights to effective

assistance of counsel and due process of law, where no

state court in the criminal proceedings against petitioner

fully and fairly considered a Fourth Amendment issue

raised on his behalf, although the issue was raised pre-

trial at the earliest opportunity by a motion to suppress

evidence, although the Supreme Court of the United

States conclusively vindicated petitioner's position in Dela-

ware v. Prouse, 440 U.S. 648 (1979), before petitioner ap-

pealed from the denial of his motion to suppress, and

despite the obligation of the state courts to provide a “fair

and full opportunity to litigate” Fourth Amendment claims

as set forth in Stone v. Powell, 428 U.S. 465 (1976)?

3. Should Delaware v. Prouse, 440 U.S. 648 (1979),

be applied retroactively to cases still on direct appeal at

the date of its decision?

TABLE OF CONTENTS

| EEE CTTA ENS POPES TEL e

Opinions Below

Jurisdiction

Yee Ss 2s. eee. e 8.9 GO 8 BO 6 6 PD 2 Oe USO Oo Oo O° ORD

Constitutional Provisions Involved

Statement of the Case

REASONS FOR GRANTING THE WRIT:

POINT I: The denial by the New Jersey courts of

petitioner's right to present a valid constitutional

issue in his defense raises significant issues in con-

nection with the Sixth and Fourteenth Amend-

ments and the administration of federal habeas

corpus relief which should be resolved by this

Court

A. The failure of the New Jersey courts to con-

sider petitioner's Fourth Amendment claim

raises substantia] Sixth Amendment and due

process issues applicable to all criminal pro-

Ee Ree any ane een ney

B. The failure of the New Jersey courts to fully

and fairly consider petitioner's Fourth Amend-

ment claims is contrary to the policies estab-

lished by this Court in Stone v. Powell and

raises substantial questions in connection with

the administration of federal habeas corpus

St et sy ee ace

POINT II: The retroactivity of Prouse raises sub-

stantial questions which have not been addressed

by this Court, concerning the development of

Stone v. Powell and United States v. Peltier

17

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT:

A. Since state criminal defendants have been pre-

cluded by Stone v. Powell from raising Fourth

Amendment claims in federal habeas relief

proceedings, this Court should reconsider the

retroactivity analysis developed in United

PE Ws COE hn oc less lee tees 21

B. Despite the observation in Peltier that this

Court has not accorded retroactive application

to decisions involving the exclusionary rule,

lower courts have continued after Peltier to

give retroactive application to such decisions,

including Prouse, which do not represent sharp

OGG TUN NOE RW os. cs a ves ee 23

Conclusion

Cases CITED:

Almeida-Sanchez v. United States,

413 U.S. 266, 37 L.Ed.2d 596,

eB. Rex Be A iv occ Ress 10, 21

American Surety Co. v. Baldwin,

287 U.S. 156, 77 L.Ed. 231, 53 S. Ct. 98 (1932) ... 12

Blanchard v. Town of Kearney,

145 N.J. Super. 246, 367 A.2d 464 (Law Div. 1976),

aff'd per curiam without opinion 153 N.J. Super.

158, 379 A.2d 288 (App. Div. 1977) ............ 11

Brooks v. Tennessee,

406 U.S. 605, 32 L.Ed.2d 358, 92 S. Ct. 918

PR os i dics tudinal de RE 13, 16

Brown v. Louisiana,

OS USE GI CID) soc vcd ctuhaeae cise 23

iii

TABLE OF CONTENTS

Cases CITED:

California v. Green,

399 U.S. 149, 26 L.Ed.2d 489, 90 S. Ct. 1930

a A es cig a aueven wes 8

Carroll v. United States,

267 U.S. 132, 69 L.Ed. 543, 45 S. Ct. 280 (1925) .. 10

Casal v. State,

375 So.2d 1077 (Fla. Dist. Ct. App. 1979) ....... 25

Chevron Oil Co. v. Huson,

404 U.S. 97, 30 L.Ed.2d 296, 92 S. Ct. 349 (1971) .. 24

Commonwealth v. Swanger,

453 Pa. 107, 307 A.2d 875 (Sup. Ct. 1973) ...... ll

Delaware v. Prouse,

440 U.S. 648, 59 L.Ed.2d 660, 99 S. Ct. 1391

ee ea un wg 1, 5, 12, 16, 18, 21, 24, 25

Desist v. United States,

394 U.S. 244, 22 L.Ed.2d 248, 89 S. Ct. 1030

"De ae 22, 24

Douglas v. California,

327 U.S. 353, 9 L.Ed.2d 811, 83 S. Ct. 814, reh.

den. 373 U.S. 905, 10 L.Ed.2d 200, 83 S. Ct. 1288

NE a TS 8

Faretta v. California,

422, U.S. 806, 45 L.Ed.2d 562, 95 S. Ct. 2525

i uve teod: 8

Ferguson v. Georgia,

365 U.S. 570, 5 L.Ed.2d 783, 81 S. Ct. 756 (1961) .. 13

Geders v. United States,

425 U.S. 80, 47 L.Ed.2d 592, 96 S. Ct. 1330

are re 14, 16, 17

Gideon v. Wainwright,

372 U.S. 335, 9 L.Ed.2d 79%, 83 S. Ct. 792 (1963) .. 8

iv

TABLE OF CONTENTS

Cases CITED:

Government of the Canal Zone v. C.,

497 F.2d 1253 (5th Cir. 1973) ................ 10

Herring v. New York,

422. U.S. 853, 45 L.Ed.2d 593, 95 S. Ct. 2550

PRONE Koka. Gack. cacdanen ea ee 14, 17

Hines v. Auger,

550 F.2d 1094 (8th Cir. 1977) ................. 20

Holloway v. Arkansas,

435 U.S. 475, 55 L.Ed.2d 426, 98 S. Ct. 1173

SOI ooo, Vise dhe een ee 15, 17

Holt v. Virginia,

381 U.S. 131, 14 L.Ed.2d 290, 85 S. Ct. 1375

PN Sg hhc ae 12

Johnson v. New Jersey,

384 U.S. 719, 16 L.Ed.2d 882, 86 S. Ct. 1772

CMOONE ccs os cecal e ee 23

Johnson v. Zerbst,

304 U.S. 485, 82 L.Ed. 1461, 58 S. Ct. 1019

I te ne ee 16

Kretchmar v. Nebraska,

440 U.S. 978, 60 L.Ed.2d 237, 99 S. Ct. 1783, on

remand 203 Neb. 663, 280 N.W.2d 46 (Sup. Ct.

WN oo a ee es 25

Michigan v. Tyler,

436 U.S. 499, 56 L.Ed.2d 486, 98 S. Ct. 1942

ee RE ee 25

Mincey v. Arizona,

437 U.S. 385, 57 L.Ed.2d 290, 98 S. Ct. 2408

2 | RP Pr rrr pete LEM 20, 25

TABLE OF CONTENTS

Cases CITED:

People v. Ibarra,

60 Cal. 2d 460, 34 Cal. Rptr. 863, 386 P.2d 487

ee Ne tat ae. 10

People v. Ingle,

36 N.Y.2d 413, 330 N.E.2d 39 (Ct. App. 1975) .. 11

People v. Odon,

71 Ill. App. 2d 480, 218 N.E.2d 116 (Ill. App. Ct.

"Ss eae I IG Canard He tiated 10

Powell v. Alabama,

287 U.S. 45, 77 L.Ed. 158, 53 S. Ct. 55 (1932) .. 8,9

State v. Braxton,

111 N.J. Super. 191, 268 A.2d 40 (App. Div. 1970),

rev d 57 N.J. 286, 271 A.2d 713 (Sup. Ct. 1970) .. 11

State v. Carpentieri,

82 N.J. 546, 414 A.2d 966 (Sup. Ct. 1980) ...... 25

State v. Gray,

59 N.J. 563, 285 A.2d 1 (Sup. Ct. 1971) ........ 1]

State v. Kabayama,

98 N.J. Super. 85, 236 A.2d 164 (App. Div. 1967),

affd per curiam without opinion, 52 N.J. 507, 246

A.2d 714 (Sup. i Ss hr breeds Ook es ll

State v. Marchitto,

132 N.J. Super. 511, 334 A.2d 354 (App. Div.

air ek rn A ht el ere 11

State v. Ochoa,

23 Ariz. App. 510, 534 P.2d 441 (1975), revd

112 Ariz. 582, 544 P.2d 1097 (Sup. Ct. 1976) .... ll

State v. Prouse,

382 A.2d 1359 (Del. Sup. Ct. 1978) ....... 4,11, 12

TABLE OF CONTENTS

Cases CITED:

State v. Trantino,

60 N.J. 176, 287 A.2d 177 (Sup. Ct. 1972) ...... 19

State v. Tucker,

588 S.W.2d 296 (Tenn. Sup. Ct. 1979) .......... 25

Stone v. Powell,

428 U.S. 465, 49 L.Ed.2d 1067, 96 S. Ct. 3037, reh.

den. 429 U.S. 874, 50 L.Ed.2d 158, 97 S. Ct.

CR aaa ier ae 1, 7, 17-22

Terry v. Ohio,

392 U.S. 1, 20 L.Ed.2d 899, 88 S. Ct. 1868

"| TRAE Seti ORION sinter eeitbe 10, 19

United States v. Brignoni-Ponce,

422 U.S. 873, 45 L.Ed.2d 607, 95 S. Ct. 2574

PS ER. eee 10, 24

United States v. Calandrella,

605 F.2d 236 (6th Cir. 1979), cert. den. sub nom.

Kaye v. United States, — U.S. —, 62 L.Ed.2d

420, 100 S. Ct. 522 (1980) .................. 24-25

United States v. Capps,

503 F.2d 277 (6th Cir. 1974) ............0000. ul

United States v. Dien,

609 F.2d 1038 (2d Cir. 1979), adhered to

615 P.aq 10 (9d Cir. 1070) ...... 25.00.00... 24

United States v. Jones,

597 F.2d 485 (5th Cir. 1979), cert. den. — U.S. —,

62 L.Ed.2d 728, — S. Ct. — (1980) ........... 25

United States v. Martinez,

526 F.2d 954 (5th Cir. 1976) ................. 24

United States v. Montgomery,

561 F.2d 875 (D.C. Cir. 1977) ................ 11

vii

TABLE OF CONTENTS

Cases CITED:

United States v. Nicholas,

448 F.2d 622 (8th Cir. 1971) ................. ll

United States v. Ortiz,

422 U.S. 891, 45 L.Ed.2d 623,

05 S. Ct. 2565 (1975) .......... 0. cee 10-11, 24

United States v. Peltier,

422 U.S. 531, 45 L.Ed.2d 374,

95 S. Ct. 2213 (1975) ...........0- eee eee, 21-25

United States v. Schleis,

582 F.2d 1166 (8th Cir. 1978) ................ 24

United States v. Tucker,

610 F.2d 1007 (2d Cir. 1979) ................. 24

United States ex rel. Petillo v. New Jersey,

562 F.2d 903 (3d Cir. 1977) ..........000 000. 20

U.S. CoNsTITUTION CITED:

. Giomek Bae, TV oe Si. odin wk ce aus 3, 10, 24

a Se, ee Mo i kG ee eee 13

U.S. Const., Amend. VI .............. 3, 7, 8, 13, 14, 16

SD. Coot, Ae, TY 5 oo ke cc ccepeeteee 3, 4, 7,8

Cope CITED:

ie ae BNI... we. cco ee, 3

OTHER AUTHORITY CITED:

American Bar Association Project on Standards for

Criminal Justice, Standards Relating to the

Defense Function (1974) .................... 9

IN THE

SUPREME COURT OF THE UNITED STATES

OcroBer TERM, 1980 No. A-6

RONALD M. STEVENS,

Petitioner,

Ds.

STATE OF NEW JERSEY,

Respondent.

Petition for a Writ of Certiorari to the

Appellate Division, Superior Court of New Jersey

Petitioner, Ronald M. Stevens, respectfully prays that

a writ of certiorari issue to review the judgment of the

Appellate Division, Superior Court of New Jersey entered

in this proceeding on March 12, 1980.

OPINIONS BELOW

No opinion was rendered by the Law Division, Su-

perior Court of New Jersey. The opinion of the Appellate

Division, Superior Court of New Jersey is unpublished

and reproduced herein at Appendix C. No opinion was

rendered by the Supreme Court of New Jersey.

2

JURISDICTION

The judgment of the New Jersey Supreme Court

denying petitioner's petition for certification was entered

on May 28, 1980. This petition for certiorari was filed

July 28, 1980, which is the next day following Sunday,

July 27, 1980, the sixtieth day following entry of the judg-

ment of the New Jersey Supreme Court. Jurisdiction is

invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

The Fourth Amendment to the Constitution of the

United States provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and ‘seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

The Sixth Amendment to the Constitution of the

United States provides, in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his

defence.

@

The Fourteenth Amendment to the Constitution of

the United States provides, in relevant part:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

STATEMENT OF THE CASE

On December 21, 1977, petitioner Ronald Stevens

was stopped by a New Jersey State patrolman while driv-

ing on the New Jersey Turnpike. In an affidavit submitted

thereafter for a warrant to search the trunk of petitioner's

vehicle, the trooper alleged that he stopped petitioner

because his vehicle was weaving, and that he smelled

marijuana when he stood outside petitioner's vehicle to

ask him to produce his license and registration. Sub-

sequently, following a search of the trunk of petitioner's

vehicle which disclosed approximately 270 pounds of

marijuana, petitioner was charged with possession of

marijuana and possession of marijuana with intent to dis-

tribute. At a pre-trial suppression hearing held on No-

vember 3, 1978, petitioner denied that he had been

weaving, and maintained that his vehicle had been stopped

absent any probable cause. In a brief filed by petitioner

in support of his motion to suppress, citing the then recent

decision by the Delaware Supreme Court, State v. Prouse,

382 A.2d 1359 (1978), he claimed that absent reasonable

suspicion for stopping the vehicle, the marijuana was re-

quired to be suppressed. At the suppression hearing,’

counsel for petitioner argued that petitioner had been

stopped on a “routine” and unconstitutional license and

registration check. The trial court responded by indi-

cating that such routine checks were constitutional. During

the course of the suppression hearing, the trial court indi-

cated that it thought petitioner was probably not weaving,

but held that such a finding was irrelevant. Rejecting

petitioner's claims, the trial court denied petitioner's mo-

tion to suppress. Pursuant to a plea agreement dismissing

the count of simple possession, petitioner then pled guilty

to the count of possession with intent to distribute. On

February 16, 1979, he was sentenced to 364 days in Bur-

lington County Jail and given a fine of five hundred

dollars. See Appendix B.

Petitioner filed a notice of appeal with the Appellate

Division of the New Jersey Superior Court on April 9,

1979. In the interim, on March 27, 1979, petitioner's

position at the suppression hearing was vindicated by the

United States Supreme Court, which held in Delaware v.

Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S. Ct. 1391

(1979), that police may not stop an automobile for a

license and registration check, except in those situations

in which there is at least an articulable and reasonable

suspicion that a motorist is unlicensed or the vehicle not

registered, or that the vehicle or an occupant is otherwise

subject to seizure for violation of law. Accordingly, pe-

titioner argued before the Appellate Division, inter alia,

that his vehicle was unlawfully stopped at random in

violation of Prouse.

By an opinion filed March 12, 1980, the Appellate

Division rejected petitioner's arguments and affirmed his

1. As set forth below, there was no trial. The suppression hear-

ing court will be referred to herein as “the trial court.”

conviction. See Appendix C. While noting that the trial

court “express[ed] skepticism as to the weaving of de-

fendant’s vehicle,” see appendix p. 8a, the court held that

Prouse should not be given retroactive application. With-

out any further analysis and without citing any case law,

the Appellate Division also rejected defendant's argument

that, having raised the Prouse issue, he was entitled to the

benefit of the favorable Fourth Amendment Law.

On April 7, 1980, petitioner petitioned for a writ of

certification from the New Jersey Supreme Court. The

question presented was as follows:

Where defendant's vehicle was stopped by state police

on the New Jersey Turnpike in the absence of any

reasonable or articulable suspicion that defendant or

his vehicle was subject to stop or seizure for violation

of any law, where defendant challenged the legality

of the stop at a subsequent suppression hearing on

the ground that such a “random” stop violated his

rights protected by the Fourth Amendment, and

where, prior to oral argument in the Appellate Di-

vision the United States Supreme Court “held in

Delaware v. Prouse that such random stops are un-

lawful, was it error for the Appellate Division to hold

that the fourth amendment, ar argued by defendant

in the trial court and as interpreted by Prouse, was

unavailable to defendant in light of Prouse.

Petitioners petition for certification by the New Jersey

Supreme Court was denied without opinion on May 28,

1980. See Appendix A.

7

REASONS FOR GRANTING THE WRIT

Point I

The denial by the New Jersey courts of petitioner’s

right to present a valid constitutional issue in his de-

fense raises significant issues in connection with the

Sixth and Fourteenth Amendments and the administra-

tion of federal habeas corpus relief which should be

resolved by this Court,

This case presents a fundamental issue relating to

rights guaranteed by the Sixth and Fourteenth Amend-

ments—namely, has petitioner been denied his rights to

effective assistance of counsel and to due process of law

where his counsel has properly raised and preserved a

Fourth Amendment issue, but the state courts have re-

fused to fully and fairly consider the claim despite the

existence of favorable controlling precedent of this Court.

Had the courts below given full and fair consideration to

the defense raised, dismissal of the charges against peti-

tioner would have been mandated. As developed in the

following pages, the failure by the state courts to properly

consider petitioner's claim directly contravenes long-stand-

ing precedent of this Court by which a criminal defendant's

rights to effective assistance of counsel and due process

of law have been established, and also violates the require-

ment that “an opportunity for full and fair litigation of a

Fourth Amendment claim” be provided by the state courts.

See Stone v. Powell, 428 U.S. 465, 49 L.Ed.2d 1067, 96

S. Ct. 3037, reh. den. 429 U.S. 874, 50 L.Ed.2d 158, 97

S. Ct. 197 (1976). Therefore, this case presents issues

vitally affecting the administration of state criminal trials

and their relationship to federal habeas corpus proceedings.

tr

A. The failure of the New Jersey courts to consider

petitioner’s Fourth Amendment claim raises sub-

stantial Sixth Amendment and due process issues

af jicable to all criminal proceedings

The law is settled that effective assistance of counsel

is a right guaranteed by the Due Process Clause to de-

fendants in the criminal courts of the states. Faretta v.

California, 422 U.S. 806, 818, 45 L.Ed.2d 562, 572, 95

S. Ct. 2525 (1975); Gideon v, Wainwright, 372 U.S. 335,

9 L.Ed.2d 799, 83 S. Ct. 792 (1963). As stated in Faretta,

“the amendment constitutionalizes the right in an adversary

criminal trial to make a defense as we know it. See Cal-

ifornia v. Green, 399 U.S. 149, 176, 26 L.Ed.2d 489, 90

S. Ct. 1930 (Harlan J., concurring). 422 U.S. at 818,

45 L.Ed.2d at 572. This Court has also recognized a crim-

inal defendant's right to counsel on appeal from a con-

viction. Douglas v. California, 327 U.S. 353, 9 L.Ed.2d

811, 83 S. Ct. 814, reh. den. 373 U.S. 905, 10 L.Ed.2d 200,

83 S. Ct. 1288 (1963). Indeed, as early as 1932 this Court,

in Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S. Ct.

55 (1932), stated that the hearing to which criminal de-

fendants are entitled as due process of law:

has always included the right to the aid of counsel

when desired and provided by that party asserting

the right. The right to be heard would be, in many

cases, of little avail if it did not comprehend the right

to be heard by counsel. Even the intelligent and

educated layman has small and sometimes no skill

in the science of law. If charged with crite, he is in-

capable, generally, of determining for himself whether

the indictment is good or bad. He is unfamiliar with

the rules of evidence. Left without the aid of counsel

he may be put on tria! without a proper charge, and

convicted upon incompetent evidence, or evidence

irrelevant to the issue or otherwise inadmissible. He

lacks both the skill and knowledge adequate to pre-

pare his defense, even though he has a perfect one.

He requires the guiding hand of counsel at every

step in the proceedings against him. Without it,

though he be not guilty, he faces the danger of con-

viction because he does not know how to establish

his innocence. . . . If in any case, civil or criminal, a

state or federal court were arbitrarily to refuse to

hear a party by counsel, employed by and appearing

for him, it reasonably may not be doubted that such

a refusal would be a denial of hearing, and, therefore,

of due process in the constitutional sense [287 U.S. at

68-69, 77 L.Ed. at 170].

As stated in Powell, a criminal defendant requires

“the guiding hand of counsel” at every stage in the pro-

ceedings. Conversely, counsel is obligated tg take all neces-

sary action to protect the accused. Defense counsel

should inform the accused of his rights forthwith and

take all necessary action to vindicate such rights. He

should consider all procedural steps which in good

faith may be taken, including, for example . . . mov-

ing to suppress illegally obtained evidence . . . | Amer-

ican Bar Association Project on Standards for Criminal

Justice, Standards Relating to the Defense Function

§3.6(a) (1974) (emphasis supplied) |.

Indeed, failure by trial counsel to properly raise Fourth

Amendment issues has led to reversal of convictions on the

ground that the defendant was denied effective assistance

10

of counsel. See Government of the Canal Zone v. C., 497

F.2d 1253 (5th Cir. 1973) (failure by counsel to question

legality of detention, search and arrest); People v. Ibarra,

60 Cal. 2d 460, 34 Cal. Rptr. 863, 386 P.2d 487 (Cal. Sup.

Ct. 1963) (failure by counsel to object to introduction of

heroin into evidence, allegedly obtained in violation of

defendant's Fourth Amendment rights); People v. Odon,

71 Ill. App. 2d 480, 218 N.E.2d 116 (Ill. App. Ct. 1966)

(failure by counsel to move to suppress exhibits, allegedly

obtained in violation of defendant’s Fourth Amendment

rights ).

In the instant case counsel was relying on settled law

to conclude that probable cause or some reasonable sus-

picion was necessary to stop a moving vehicle. By 1968,

this Court had held in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d

899, 88 S. Ct. 1868 (1968), that the Fourth Amendment

was applicable to searches and seizures short of formal

arrest. Then, in 1973, in Almeida-Sanchez v. United States,

413 U.S. 266, 37 L.Ed.2d 596, 93 S. Ct. 2535 (1973), this

Court held that in the absence of probable cause or con-

sent, a warrantless search of an automobile violated the

defendant’s Fourth Amendment rights, where the stop and

search were not incident to a border search or justified

by the “automobile exception” established by Carroll v.

United States, 267 U.S. 132, 69 L.Ed. 543, 45 S. Ct. 280

(1925). Even in the context of border searches, this Court

held in United States v. Brignoni-Ponce, 422 U.S. 873,

45 L.Ed.2d 607, 95 S. Ct. 2574 (1975), that although the

Fourth Amendment does not require probable cause to

search a vehicle or arrest its occupants, police may stop

vehicles only if they are aware of specific articulable facts,

which, when taken with rational inferences therefrom,

would indicate that the vehicle contains aliens who might

be in the country illegally. Similarly, in United States

11

v. Ortiz, 422 U.S. 891, 45 L.Ed. 623, 95 S. Ct. 2585 (1975),

this Court held that even at fixed checkpoints in a border

area, probable cause is required to search vehicles sus-

pected of harboring illegal aliens. In light of this line of

cases, it can be no surprise that a number of courts had

correctly perceived that police could not randomly stop

moving vehicles absent reasonable suspicion or probable

cause to do so. See United States v. Montgomery, 561

F.2d 875 (D.C. Cir. 1977); United States v. Capps, 503

F.2d 277 (6th Cir. 1974); United States v. Nicholas, 448

F.2d 622 (8th Cir. 1971); State v. Ochoa, 23 Ariz. App.

510, 534 P.2d 441 (1975), rev'd on other grounds 112 Ariz.

582, 544 P.2d 1097 (Sup. Ct. 1976); State v. Prouse, 382

A.2d 1359 (Del. Sup. Ct. 1978); People v. Ingle, 36 N.Y.2d

413, 330 N.E.2d 39 (Ct. App. 1975); Commonwealth v.

Swanger, 453 Pa. 107, 307 A.2d 875 (Sup. Ct. 1973).

Indeed, by 1978 all three states bordering on New

Jersey had adopted the Prouse rule. In New Jersey, on

the other hand, the state courts paid no apparent heed to

a process which must have been obvious. In a line of

cases beginning with State v. Kabayama, 98 N.J. Super.

85, 236 A.2d 164 (App. Div. 1967), aff'd per curiam with-

out opinion 52 N.J. 507, 246 A.2d 714 (Sup. Ct. 1968),

the New Jersey courts upheld the right of police to make

random motor vehicle stops. See State v. Braxton, 111 N.J.

Super. 191, 268 A.2d 40 (App. Div. 1970), rev'd 57 N.J. 286,

271 A.2d 713 (Sup. Ct. 1970); State v. Gray, 59 N.J. 563,

285 A.2d 1 (Sup. Ct. 1971); State v. Marchitto, 132 N.]J.

Super. 511, 334 A.2d 354 (App. Div. 1975); Blanchard v.

Town of Kearney, 145 N.J. Super. 246, 367 A.2d 464 (Law

Div. 1976), affd per curiam without opinion 154 N.J. Super.

158, 379 A.2d 288 (App. Div. 1977). However, the New

Jersey decisions, ignoring this Court’s development of the

law, cited only pre-Almeida New Jersey authority.

12

Thus, competent counsel must have realized by no

later than the mid-1970's that in light of the decisions of

this Court, New Jersey precedent could no longer be per-

suasive on the issue of random automobile stops. Further-

more, this Court had granted certiorari in Prouse on Oc-

tober 2, 1978, see 439 U.S. 816, 58 L.Ed.2d 107, 99 S. Ct.

76, a full month before petitioner's suppression hearing.

In any event, there can be no dispute that by the time this

case was argued before the Appellate Division, Prouse

had conclusively determined that police require reason-

able suspicion in order to stop a moving vehicle.

Despite the foregoing, no New Jersey court at any

level ruled on the merits of the Prouse defense as raised

by petitioner. He is in no better position than he would

be in had he never claimed that the random stop violated

his rights. His counsel's efforts to assert this valid deiense

and preserve the issue on appeal have been nullified by

the state courts.”

During the past twenty years, this Court has force-

fully struck down similar unfair procedures which hindered

the effectiveness of the representation provided by counsel

2. The argument presented under this heading is expressed

in terms of right to counsel and to due process of law. That should

not be read to imply, however, that petitioner's rights were violated

only because he was represented by counsel. To the contrary, the

refusal by the state courts to properly consider petitioner's Fourth

Amendment Prouse claim would have denied petitioner due proc-

ess, even had he been proceeding pro se. Due process a

that there be an opportunity to present every available defense,

American Surety Co. v. Baldwin, 287 U.S. 156, 168, 77 L.Ed. 231,

239, 53 S. Ct. 98 (1932), and the right to be heard embodied in

due process “must necessarily embody a right to file motions. . .

essential to present claims and raise relevant issues.” Holt v. Vir-

ginia, 381 U.S. 131, 136, 14 L.Ed.2d 290, 293, 85 S. Ct. 1375 (1965).

In the instant case, petitioner has in effect never received the day

in court to which he is entitled.

13

in criminal proceedings. These cases, discussed in the fol-

lowing pages, have not been specifically extended to the

instant issue. Their import, however, leads to the certain

conclusion that petitioner's rights were violated.

In Ferguson v. Georgia, 365 U.S. 570, 5 L.Ed.2d 783,

81 S. Ct. 756 (1961), the Court held constitutionally in-

valid a Georgia statute that prevented a defendant from

testifying under oath, and permitted him only to make an

unsworn statement to the court and jury. The Court held

that the statute interfered with a defendant's due process

rights by preventing him from being questioned by his

attorney. \ .

In Brooks v. Tennessee, 406 U.S. 605, 32 L.Ed.2d

358, 92 S. Ct. 918 (1972), the Court held that a Tennessee

statute, which required that a criminal defendant desiring

to testify do so betore any other witness for the defense

could testify, violated due process rights secured by virtue

of the Fifth and Sixth Amendments to the federal Constitu-

tion. The Court stated:

Whether the defendant is to testify is an important

tactical decision as well as a matter of constitutional

right. By requiring the accused and his lawyer to

make that choice without an opportunity to evaluate

the actual worth of their evidence, the statute re-

stricts the defense—particularly counsel—in the plan-

ning of its case. Furthermore, the penalty for not

testifying first is to keep the defendant off the stand

entirely, even though as a matter of professional judg-

ment his lawyer might want to call him later in the

trial. The accused is thereby deprived of the “guiding

hand of counsel” in the timing of this critical element

of his defense [406 U.S. at 612-613, 32 L.Ed.2d at

364].

14

In Herring v. New York, 422 U.S. 853, 45 L.Ed.2d

593, 95 S. Ct. 2550 (1975), the Court held unconstitutional

a New York statute which conferred upon a trial court in

a non-jury criminal trial discretion as to whether parties

should be permitted to deliver summations. The Court

held that the statute, insofar as it conferred upon the trial

judge the power to deny counsel any opportunity to make

a closing summation, violated the Sixth Amendment’s guar-

antee of effective assistance of counsel. In discussing the

theory behind the Sixth Amendment, the Court noted as

follows:

The decisions of this Court have not given to these

constitutional provisions a narrowly literalistic con-

struction. More specifically, the right to the assist-

ance of counsel has been understood to mean that

there can be no restrictions upon the function of

counsel in defending a criminal prosecution in accord

with the traditions of the adversary fact-finding proc-

ess that has been constitutionalized in the Sixth and

Fourteenth Amendments [422 U.S. at 857, 45 L.Ed.2d

at 598].

In Geders v. United States, 425 U.S. 80, 47 L.Ed.2d

592, 96 S. Ct. 1330 (1976), the Court overturned a con-

viction based on a trial in which the defendant had been

prevented from consulting with his counsel during an

overnight recess between defendant's direct and cross ex-

amination. Noting the potential conflict between the prob-

lem of improper coaching of the defendant and defendant’s

right to consult with his attorney during a recess in the

trial, the Court held that the conflict must, under the Sixth

Amendment, be resolved in favor of right to the assistance

and guidance of counsel.

15

Limitations placed on the effectiveness of defense

counsel by the trial court also led to reversal in Holloway

v, Arkansas, 435 U.S. 475, 55 L.Ed.2d 426, 98 S. Ct. 1173

(1978), in which three co-defendants were represented

by the same attorney at trial, despite counsel’s repeated

attempts to obtain an order for appointment of separate

counsel. Because the defense counsel had been told in-

formation in confidence by each of the defendants, he

was unable to effectively examine or cross-examine them

during the trial. The Court noted:

Joint representation of conflicting interests is suspect

because of what it tends to prevent the attorney from

doing. .. . The mere physical presence of an attorney

does not fulfill the Sixth Amendment guarantee when

the advocate’s conflicting obligations have effectively

sealed his lips on crucial matters [435 U.S. at 489-490,

55 L.Ed.2d at 438].

The reasoning set forth in this Court’s decisions is

clear—the “mere physical presence of an attorney,” 435

U.S. at 490, 55 L.Ed.2d at 438, cannot satisfy Sixth Amend-

ment requirements of effective assistance of counsel, under

circumstances in which the attorney is prevented from

presenting a defendant's case in a manner calculated to

lead to fair proceedings. Certainly, basic to this right

to effective assistance must be counsel's right (indeed, his

duty) to raise all appropriate defenses. Instructions by a

court to counsel, that counsel be barred from raising a valid

Fourth Amendment argument, would certainly be a denial

of a defendant's constitutional rights. Indeed, it would be

unthinkable for a court to prevent a constitutional defense

from being raised, unless the defendant had already waived

16

his opportunity to do so.* In the instant case, however,

that is essentially what has happened—despite the fact

that petitioner raised the Prouse issue from the very in-

ception of these proceedings, despite the fact that peti-

tioner called for application of Prouse on his appeal, and

despite the fact that Prouse was decided before the Ap-

pellate Division heard petitioner's appeal, no New Jersey

court has ever properly applied Fourth Amendment search

and seizure law to petitioner.

It is possible that there were arguably valid State

interests in some of the cases discussed above. In Brooks

v. Tennessee, supra, for instance, it was possible to argue

that the defendant should testify before any other defense

witness so that the defendant could not shade his testimony

to match that of the other witnesses. See 406 U.S. at

611, 32 L.Ed.2d at 363. In Geders v. United States, it was

possible*to argue that prohibiting consultation between

counsel and the defendant was necessary to avoid fab-

ricated testimony. These rationale were of course rejected

by the Court. No such interest is even remotely suggested

here, where petitioner was simply arbitrarily told that he

could not have the benefits of a properly-raised constitu-

tional issue. Thus far, in all its briefs filed in this matter,

the State has presented no compelling need to overcome

petitioner's denial of his Sixth Amendment and due proc-

ess rights. Nor could it, for there is no basis for not ap-

plying to petitioner that law which is applied to others.

Petitioner has not received the process which is due him.

This Court has stated that general rule that deprivation

of assistance of counsel in violation of defendants’ Sixth

3. Even so, the burden would be on the State to prove that

such a waiver was knowing, intelligent, and voluntary. Johnson

v. Zerbst, 304 U.S. 485, 82 L.Ed. 1461, 58 S. Ct. 1019 (1938).

17

Amendment rights “can never be treated as harmless error.”

Holloway v. Arkansas, supra, 435 U.S. at 489, 55 L.Ed.2d

at 437 (emphasis supplied). In keeping with this general

rule, the Court made no inquiry as to prejudice suffered

by the defendants in Geders, Herring, and Holloway. In

light of the foregoing, and because of the importance of

this case to the development of Sixth Amendment and due

process rights, the Court should grant this petition.

B. The failure of the New Jersey courts to fully and

fairly consider petitioner’s Fourth Amendment

claims is contrary to the policies established by

this Court in Stone v. Powell and raises substan-

tial questions in connection with the administra-

tion of federal habeas corpus relief

In Stone v. Powell, supra, this Court held that where

a state has provided an opportunity for full and fair litiga-

tion of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground

that evidence obtained in an unconstitutional search or

seizure was introduced at his trial. Mr. Justice Powell,

writing for a majority of this Court, noted the following

serious intrusions on values important to our systems of

government that can be caused by resort to habeas corpus:

They include “(i) the most effective utilization of

limited judicial resources, (ii) the necessity of finality

in criminal trials, (iii) the minimization of friction

between our federal and state systems of justice, and

(iv) the maintenance of the constitutional balance

upon which the doctrine of federalism is founded.”

Schneckloth v. Bustamonte, 412 U.S. at 259, 36

L.Ed.2d 854, 93 S. Ct. 2041 (Powell, J., concurring).

18

[428 U.S. at 491 n.31, 49 L.Ed.2d at 1086 n.31 (other

citations omitted ).]

Central to the decision in Stone was an unwillingness on

the part of this Court to assume that there exists a “general

lack of appropriate sensitivity to constitutional rights in

the trial and appellate courts of the several States.” 428

U.S. at 493 n.35, 49 L.Ed.2d at 1087 n.35.

The holding in Stone, with its great significance for

the administration of federal courts in connection with the

habeas docket, requires that a state prisoner receive “an

opportunity for full and fair litigation of a Fourth Amend-

ment claim.” If a prisoner has not received such a full

and fair opportunity, then Stone does not preclude a sub-

sequent federal habeas action. Thus, in order for Stone

to have the salutary effect intended, it is crucial that the

state courts assume their responsibility and provide real

forums for consideration of Fourth Amendment claims.

In the instant case, petitioner raised the Prouse issue

at his pretrial suppression hearing, the first opportunity

at which he could do so. The trial judge rejected the argu-

ment, stating merely that he didn't think it was the law

in New Jersey that routine license and registration checks

were unconstitutional. After the denial of petitioner's mo-

tion to suppress and his subsequent guilty plea, petitioner

in his appeal to the state appellate courts argued that his

rights had been violated by the random automobile stop

in violation of this Court’s decision in Delaware v. Prouse,

which had been announced following the suppression hear-

ing but before petitioner's appeal was heard. Because

Prouse, directly on point, had been decided, it was un-

necessary for petitioner to set forth the development of

i9

the law as discussed at pages 10-11 above. However, the

Appellate Division rejected Petitioner's contention, relying

only on stale New Jersey precedent (see Appendix C).

The Supreme Court of New Jersey, which denied petitioner

leave to appeal from the affirmance of his conviction by

the Appellate Division, never considered petitioner's Fourth

Amendment claims. It is apparent that petitioner was not

accorded the benefit of decisions of this Court or of the

developing law regarding random automobile stops. It

is precisely for that reason that the Appellate Division was

required to base its rejection of petitioner's Fourth Amend-

ment claim on an irrelevant “retroactivity” analysis.

Had this Court not announced its decision in Stone,

there could be no doubt that petitioner would have been

able to present his Prouse claim to a federal district court

in a habeas proceeding. A federal court would not have

confined its analysis to antiquated New Jersey decisions,

but would have taken into account the growth in the law

since Terry v. Ohio. Thus, petitioner would almost cer-

tainly have been granted habeas relief by a federal district

court. On the other hand, the New Jersey courts were

unwilling to consider this development. This Court has

never defined what must be included in a “fair and full

opportunity to litigate” Fourth Amendment claims; how-

ever, where the law is not completely settled, a fair oppor-

tunity must include consideration by the state courts of

all applicable precedent of this Court, for a state criminal

defendant will not receive a second chance.’ Unfortunately

for petitioner, no state court ever considered the ap-

4. In New Jersey defendants are precluded from relitigating

issues, even of constitutional dimensions, in state-court post-con-

viction relief proceedings if they have been raised on direct appeal.

State v. Trantino, 60 N.J. 176, 180, 287 A.2d 177, 179 (Sup. Ct.

1972).

20

plicable precedent—not even the decisions of this Court

predating the stop of petitioner's vehicle.

Petitioner has never received his full and fair oppor-

tunity to litigate his Prouse claim, because no New Jersey

court has been willing to listen to his argument, despite

its unquestioned correctness. Because of the failure by

the New Jersey courts to consider petitioner's claim, peti-

tioner will be forced to raise the Prouse issue in state and

then federal habeas proceedings, thereby causing his un-

necessary incarceration, a waste of judicial resources, and

the other costs specified by Mr. Justice Powell. Nor is

petitioner unique in not having had his constitutional ar-

guments fully and fairly considered in the state courts.

See Mincey v. Arizona, 437 U.S. 385, 404, 57 L.Ed.2d

290, 307, 98 S. Ct. 2408 (1978) (Marshall, J., concurring)

(suggesting reconsideration of Stone because of state court

divergence from federal rulings). See also United States

ex rel. Petillo v. New Jersey, 562 F.2d 903, 906 (3d Cir.

1977) (providing examples). Indeed, in Hines v. Auger,

550 F.2d 1094, 1097 (8th Cir. 1977), the court stated

that “[t]he emphasis of Stone is on the opportunity for

full and fair litigation, not upon the fullness or fairness

of the litigation.” (emphasis in original). Nothing could

be further from the philosophy behind Stone v. Powell.

Therefore, this Court should reverse this matter and re-

mand to the Appellate Division of the New Jersey Superior

Court, in order that petitioner be provided with a full

and fair opportunity for consideration of his Prouse claim,

and in order that all state courts be admonished that they

must properly fulfill their role in the protection of constitu-

tional rights and values.

21

Point II

The retroactivity of Prouse raises substantial ques-

tions, which have not been addressed by this Court,

concerning the development of Stone v. Powell and

United States v. Peltier.

A. Since state criminal defendants have been pre-

cluded by Stone v. Powell from raising Fourth

Amendment claims in federal habeas relief pro-

ceedings, this Court should reconsider the retro-

activity analysis developed in United States v.

Peltier

As developed in Point I above, this Court ruled in

1976 in Stone v. Powell that state criminal defendants may

not litigate Fourth Amendment claims on federal habeas

review, where they have had a full and fair opportunity to

litigate those claims in the state court. Thus, unless a

state court is required to give retroactive application to

decisions of this Court to cases on direct appeal at the time

of their rendering, state criminal defendants may never

receive the protection of their constitutional rights to which

they are entitled, even if these rights are unquestioned.

A year before Stone was decided, this Court decided

United States v. Peltier, 422 U.S. 531, 45 L.Ed.2d 374, 95

S. Ct. 2213 (1975), which held that Almeida-Sanchez was

not to be retroactively applied. Peltier, involving a

federal prisoner, was announced before Stone had elimi-

nated federal habeas review of state criminal Fourth

Amendment claims. This Court has not considered a

Fourth Amendment retroactivity case since Stone. Thus,

this Court has not taken the opportunity to reconsider the

22

analysis used in Peltier in light of the further development

in Stone, or to instruct the lower courts as to the proper

interrelation of retroactivity and habeas corpus law.

In Peltier, this Court noted that in the context of the

exclusionary rule, new constitutional principles have been

accorded only prospective application. 422 U.S. at 535,

45 L.Ed.2d at 380. Now that state prisoners will be pre-

cluded from seeking to vindicate their rights in federal

courts, however, it is especially important that this doctrine

not be abused by describing each new decision of this

Court as a “new constitutional principle.” Otherwise, this

Court will have encouraged police and other courts “to

disregard the plain purport of our decisions and to adopt

a let’s-wait-until-it's-decided approach.” Desist v. United

States, 394 U.S. 244, 277, 22 L.Ed.2d 248, 272, 89 S. Ct.

1030 (1969) (Fortas, J., dissenting). Likewise, if there

is no clear delineation of the meaning of “new constitu-

tional principle” by this Court, state criminal suspects will

be faced by the further problem that:

If evidence is to be admitted in criminal trials in the

absence of clear precedent declaring the search in

question unconstitutional, the first duty of a court

will be to deny the accused’s motion to suppress if

he cannot cite a case invalidating a search or seizure

on identical facts. [Peltier, supra, 422 U.S. at 544, 45

L.Ed.2d at 391 (Brennan, J., dissenting).|

As discussed above at page 20, lower courts are

struggling with what is meant by a “full and fair op-

portunity to litigate’ Fourth Amendment issues. How-

ever, it is apparent that Stone substantially shifted the

complex balance of factors, including the deterrent purpose

23

served by the exclusionary rule and the imperative of

judicial integrity, see Peltier, 422 U.S. at 536, 45 L.Ed.2d

at 380, to be taken into account in determining whether a

Fourth Amendment decision should be accorded retro-

active affect, now that lower federal courts no longer

oversee the protection of Fourth Amendment rights.

Therefore, this Court should grant petitioner’s writ for

certiorari in order to instruct the courts on the appropriate

analysis of retroactivity problems in light of Stone.

B. Despite the observation in Peltier that this Court

has not accorded retroactive application to deci-

sions involving the exclusionary rule, lower courts

have continued after Peltier to give retroactive

application to such decisions, including Prouse,

which do not represent sharp breaks from past law

In United States v. Peltier, supra, Mr. Justice Rehn-

quist noted for the Court that “in every case in which the

Court has addressed the retroactivity problem in the con-

text of the exclusionary rule, whereby concededly relevant

evidence is excluded in order to enforce a constitutional

guarantee that does not relate to the integrity of the fact-

finding process, the Court has concluded that any such

new constitutional principle would be accorded only

prospective application.” 422 U.S. at 535, 45 L.Ed.2d at

380 (footnote and citations omitted). Thus, although the

retroactivity of a decision is not automatically determined

by the particular provision of the Constitution on which

the new decision is based, Brown v. Louisiana, 48 U.S.

L.W. 4719, 4720 (1980) (Opinion of Brennan, J.); Johnson

v. New Jersey, 384 U.S. 719, 728, 16 L.Ed.2d 882, 889, 86

S. Ct. 1772 (1966), Peltier has been read to create a pre-

24

sumption against retroactive application of this Court's

Fourth Amendment decisions. See, e.g., Peltier, 422 U.S.

at 550, 45 L.Ed.2d at 388-389 (Brennan, J., dissenting ).

Because Prouse is merely an application of settled

Fourth Amendment law, the question of retroactivity

should not even arise. This Court has stated on numerous

occasions that retroactivity is an issue only when a de-

cision constitutes a “sharp break” with the line of earlier

authority. See, e.g., Chevron Oil Co. v. Huson, 404 U.S.

97, 106, 30 L.Ed.2d 296, 306, 92 S. Ct. 349, 355 (1971):

Desist v. United States, supra. This line of cases has con-

tinued its vitality since Peltier, which did not discuss the

“sharp break” analysis, and federal courts have continued

to apply variations of the sharp break analysis when retro-

activity questions have arisen in Fourth Amendment cases.

See, e.g., United States v. Tucker, 610 F.2d 1007, 1010-

1013 (2d Cir. 1979) (applying Dunaway v. New York,

442 U.S. 200, 99 S. Ct. 2248, 60 L.Ed.2d 824 (1979),

retroactively ); United States v. Dien, 609 F.2d 1038, 1046

(2d Cir. 1979), adhered to 615 F.2d 10 (2d Cir. 1979)

(applying Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct.

2586, 61 L.Ed.2d 235 (1979), retroactively ); United States

v. Schleis, 582 F.2d 1166, 1174 (8th Cir. 1978) (en banc)

(applying United States v. Chadwick, 433 U.S. 1, 53

L.Ed.2d 538, 97 S. Ct. 2476 (1977), retroactively ); United

States v. Martinez, 526 F.2d 954, 955-956 (5th Cir. 1976)

(applying United States v. Ortiz, and United States v.

Brignoni-Ponce retroactively). On the other hand, a

number of courts have interpreted Peltier to preclude

retroactive application of Fourth Amendment decisions.

See, e.g., United States v. Calandrella, 605 F.2d 236 (6th

Cir. 1979), cert. den. sub nom Kaye v. United States, —

U.S. —, 62 L.Ed.2d 420, 100 S. Ct. 522 (1980) (Chadwick

25

not applied retroactively); United States v. Jones, 597 F.2d

485 (5th Cir. 1979), cert. den. — U87—=>62 L.Ed.2d 728,

— S. Ct. — (1980), (Michigan v. Tyler, 436 U.S. 499, 56

L.Ed.2d 486, 98 S. Ct. 1942 (1978) and Mincey v. Arizona,

437 U.S. 385, 57 L.Ed.2d 290, 98 S. Ct. 2408 (1978) not

applied retroactively).

Prouse itself has been denied retroactive application

in New Jersey, State v. Carpentieri, 82 N.]. 546, 414 A.2d

966 (N.J. Sup. Ct. 1980) (4-3 decision), while in other

states Prouse has received retroactive application; see Casal

v. State, 375 So. 2d 1077 (Fla. Dist. Ct. App. 1979); State

v. Tucker, 588 S.W.2d 296 (Tenn. Sup. Ct. 1979). Finally,

in Kretchmar v. Nebraska, 440 U.S. 978, 60 L.Ed.2d 237,

99 S. Ct. 1783, on remand 203 Neb. 663, 280 N.W.2d 46

(Sup. Ct. 1979), this Court invited retroactive application

of Prouse by vacating a judgment of conviction by the

Supreme Court of Nebraska and remanding for further

consideration in light of Prouse.

As discussed above, the Court in Peltier noted that

this Court has never given retroactive application to a de-

cision based on the Fourth Amendment exclusionary rule.

Although that observation may be historically correct, it

is not true of the lower courts and conflicts with the “sharp

break” analysis, which is apparently still the law as de-

veloped by this Court. Therefore, this Court should grant

petitioner's writ, so that the confusion in the lower courts

generated by Peltier in connection with retroactivity of

Fourth Amendment decisions can be eliminated.

26

CONCLUSION

For the reasons set forth in this petition, a writ of

certiorari should issue to review the judgment of the Ap-

pellate Division, Superior Court of New Jersey.

Dated: July 28, 1980

Respectfully submitted,

/s/ Matthew P. Boylan

MATTHEW P. BOYLAN

Counsel of Record for Petitivtier

Roger A. Lowenstein

Philip Rosenbach

LOWENSTEIN, SANDLER,

BROCHIN, KOHL, FISHER

& BOYLAN

A Professional Corporation

Attorneys for Petitioner,

Ronald M. Stevens

APPENDIX A

SUPREME COURT OF NEW JERSEY

SEPTEMBER TERM 1979

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

RONALD M. STEVENS,

Defendant-Petitioner.

ORDER

(Filed May 30, 1980)

To the Appellate Division, Superior Court:

A petition for certification of the judgment in A-2704-78

having been submitted to this Court, and the Court having

considered the same;

It is ORDERED that the petition for certification is

denied with costs.

WITNESS, the Honorable Robert N. Wilentz, Chief

Justice, at Trenton, this 28th day of May, 1980.

A TRUE COPY,

/s/ Stephen W. Townsend

Clerk

la

2a

APPENDIX B

THE STATE OF NEW JERSEY

vs.

RONALD M. STEVENS,

Defendant.

JUDGMENT OF CONVICTION AND

ORDER FOR COMMITMENT

The defendant on June 15, 1978 having entered a plea

of not guilty to Indictment No. I-531-77 for the crime(s)

of Possession and Distribution of Controlled Dangerous

Substance and the defendant having on November 3, 1978

_ RETRACTED PLEA OF NOT GUILTY AND EN-

TERED PLEA OF GUILTY TO: I-531-77 (First Count )

It is, therefore, on February 23, 1979, Ordered and Ad-

judged that the defendant be and is sentenced on the First

Count of 1-531-77 to the Burlington County Jail for 364

days. Credit given for three days. Defendant fined

$500.00.

Dismiss: Second County of I-531-77. Sentence is stayed

pending Appeal.

IT IS FURTHER ORDERED THAT THE SHERIFF

DELIVER THE DEFENDANT TO THE AFORE-

NAMED INSTITUTION TO SERVE HIS SENTENCE.

STATEMENT OF REASON REQUIRED BY R. 3:21-

4(e) APPEARS ON THE REVERSE SIDE.

3a

ATTORNEY FOR DEFENDANT

Upon entry of Guilty Plea or

Conviction

Roger Lowenstein, Esq.

At time of Sentencing

Roger Lowenstein, Esq.

E. M. Rupert, Court Clerk

Edward A. Kelly, Jr.,

County Clerk

DATED: May 21, 1979.

Admin. Office of the Courts

Defendant to receive R. 3:21-8

credit for time spent in custody

From to

Days credit 3.

/s/ Paul R. Kramer

Judge

PAUL R. KRAMER

].S.C.

4a

STATEMENT OF REASONS, R. 3:21-4(e)

1. Mule Case.

DATED: May 21, 1979.

/s/ Paul R. Kramer

PAUL R. KRAMER

J.S.C.

5a

APPENDIX C

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-2704-78

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

RONALD M. STEVENS,

Defendant-Appellant.

OPINION OF THE SUPERIOR COURT

OF NEW JERSEY, APPELLATE DIVISION

(Filed March 12, 1980)

Argued: February 11, 1970—Decided: March 12, 1980

Before Judges Allcorn, Morgan and Francis.

On appeal from Superior Court, Law Division,

Burlington County.

Roger A. Lowenstein argued the cause for appellant

(Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan,

attorneys; Philip Rosenbach, on the brief).

John J. Degnan, Attorney General, attorney for respon-

dent (Bruce Myron Merrill, Deputy Attorney General,

of counsel and on the brief).

The opinion of the court was delivered by

FRANCIS, J.A.D.

6a

Defendant, Ronald Stevens, appeals from a conviction

of possession of CDS (marijuana) with intent to distribute

(N.J.S.A. 24:21-19(a)(1)) on his plea of guilty entered

after denial of his motion to suppress as evidence, the

marijuana found in the trunk of the car defendant was

driving.

In the early evening of December 21, 1977 defendant

was driving a rented car with Florida plates on the New

Jersey Turnpike near Mount Laurel. He was on route

from Florida to his home in Massachusetts. The car trunk

contained approximately 269 pounds of marijuana.

Defendant Stevens testified that he was driving in a

proper manner and within the speed limit when he was

stopped by a state trooper. The trooper stated that he

stopped the car after observing that it was weaving, and

he wanted to check the condition of the driver as to fatigue

or whether he was under the influence of alcohol or drugs.

The trooper, after stopping the vehicle, asked Stevens for

his driver's license and the vehicle registration, and after

receiving these directed Stevens to exit his car.

When defendant opened his door to exit, the trooper

stated that he immediately detected a marijuana odor.

After placing Stevens in the patrol car the trooper pro-

ceeded to search defendant's vehicle for weapons since at

that point the trooper had decided to have defendant

follow him to the police barracks so that a search warrant

could be obtained. Upon their arrival at the state police

barracks in Moorestown, defendant was searched for the

key to the car trunk. When the key was not found, de-

fendant was told to empty his pockets and was handcuffed

to a bench. Within the next two hours trooper Stolinski

applied for and received a search warrant from a judge

7a

in Burlington County. In his affidavit in support of his

request for a search warrant, the trooper stated that he

stopped defendant's car because it was weaving; that when

he asked the defendant to exit the car the trooper detected

a strong marijuana odor, and while the car was being in-

spected at the barracks another trooper also detected the

odor. Armed with the search warrant, the automobile

trunk was opened, the marijuana found, and the defendant

arrested.

I

Defendant first complains that he was not weaving on

the highway and that the judge who heard the suppression

motion so found. He argues that such a finding relegates

the act of the trooper stopping him to that of a “random

traffic stop” of the type invalidated in Delaware v. Prouse,

440 U.S. 648, 99 S. Ct. 1391, 59 L.Ed.2d 660 (1979). In

Prouse, which was decided subsequent to the stopping of

the defendant's vehicle, the United States Supreme Court

declared that:

. . except in those situations in which there is at least

articulable and reasonable suspicion that a motorist is

unlicensed or that an automobile is not registered, or

that either the vehicle or an occupant is otherwise sub-

ject to seizure for violation of [the] law, [the] stopping

[of] an automobile and detaining the driver in order to

check his driver's license and the registration of the auto-

mobile are unreasonable under the Fourth Amendment.

[400 U.S. at —, 99 S. Ct. at 1401, 59 L.Ed.2d at 673)

Defendant contends that Prouse should be retroactively

applied to the stopping of his vehicle, and that any evi-

dence flowing from the subsequent odor of the marijuana

detected by the trooper and the resulting search should

8a

be suppressed as being the fruit of an illegal stop. He

also argues that even if Prouse is not applied retroactively

as a general rule, he should still be able to receive the

benefits of its holding because he challenged the constitu-

tionality of random stops at the motion to suppress.

The transcript of the hearing on the motion to suppress

shows that the judge did express skepticism as to the weav-

ing of defendant's vehicle. However, he in effect con-

sidered the “weaving” question irrelevant, and upheld the

stopping of the vehicle and the right of a police officer to

stop a car for a license and registration check on the basis

of the statutory authority of N.J.S.A. 39:3-29. Since we

determine that Prouse shall only be applied prospectively,

it is not necessary to consider the question of the weaving

in relation to the legality of the vehicle stop.

Prior to Prouse the type of random vehicle stop com-

plained of here was permitted in Ne w Jersey. State v. Gray,

59 N.J. 563 (1971); State v. Kabayama, 98 N.J. Super. 85

(App. Div. 1967) aff'd. 52 N.J. 507 (1968); State v. Mar-

chitto, 132 N.J. Super. 511 (App. Div. 1975), certif. den.

68 N.J. 163 (1975). Once having stopped the car, a

police officer could request the driver to exit the vehicle.

State v. Boone, 114 N.J. Super. 521, 524 (App. Div. 1971)

certif. den., sub nom State v. Terry, 58 N.J. 59 (1971);

Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330

(1977). Prouse unquestionably invalidated such stops,

and in so doing grafted a new variant onto the exclusionary

sanctions of the Fourth Amendment, thus implicating the

question of retroactivity as to its application.

In State v. Howery, 80 N.J. 563 (1979) our Supreme

Court considered the retroactivity of Franks v. Delaware,

438 U.S. 154, 98 S. Ct. 2674, 57 L.Ed.2d 667 (1978)

which permitted a defendant to inquire into the veracity

9a

of a search warrant affidavit, contrary to the prior practice

prohibiting such a challenge. State v. Petillo, 61 N.J. 165

(1972), cert. den. 410 U.S. 945, 93 S. Ct. 139, 35 L.Ed.2d

611 (1973). In holding that Franks should be applied

prospectively the court applied a three pronged test identi-

fied in State v. Nash, 64 N.J. 464, 469-470 (1974). That

test considered: (1) the purpose of the rule, and whether

it would be furthered by retroactive application; (2) the

degree of reliance placed on the old rule by those who

administer it; and (3) the effect of retroactive applications

would have on the administration of justice.

Unlike Nash, where the Court held that a new rule

which prohibits a defendant who appeals a municipal

court conviction from receiving a greater sentence in the

county court should have a limited retroactive effect per-

mitting the new rule to govern the rights of the parties to

the overruling case and the rights of parties who have not

yet exhausted final direct appeal when the overruling case

was decided, the court in Howery applied Franks prospec-

tively. It determined that Franks (like Prouse) added a

new variant to the judicially fashioned exclusionary

remedy in Fourth Amendment cases; and it recognized

that the primary purpose of the exclusionary rule was the

deterrance of unlawful police conduct. The Court con-

cluded that the deterred purpose of the Franks rule was

not served by retroactive application. State v. Howery, 80

N.J. at 569 citing U.S. v. Peltier, 422 U.S. 531, 538-539, 95

S. Ct. 2313, 2317-2318, 45 L.Ed.2d 382 (1975).

If the deterrent purpose of the rule was not served by

retroactive application in a case such as Howery which

involved an alleged willful and knowing misstatement of

facts in a search warrant affidavit, a fortiori, such a purpose

would not be served when the conduct complained of as

in the instant case was legally permissible at the time it

10a

occurred, i.e. conduct engaged in “in good faith reliance

on ‘then-prevailing constitutional norms.’ ” Id. at 570; U.S.

v. Peltier, 422 U.S. at 536, 95 S. Ct. at 2317.

Secondly, in Howery it was clear that the police officer

in that case relied on the rule which preceded Franks.

The same reliance, as indicated by the cases cited supra,

was present here. Finally, the third factor in the Howery

decision was the impact of retroactivity on the administra-

tion of justice. Unlike in Howery where it was found to

be likely that many defendants would seek to challenge

the veracity of affidavits supporting search warrants if any

retroactive application of Franks were allowed it is not alto-

gether apparent that as many defendants would seek to

challenge the constitutionality of the stopping of their autos

if limited retroactivity of Prouse to cases pending on direct

appeal were allowed. Nevertheless, random automobile

stops were apparently a common police activity prior to

the Prouse decision. See e.g., State v. Marchitto, 132 N.].

Super. 511 (App. Div. 1975), certif. den. 68 N.J. 163

(1975); Blanchard v. Town of Kearny, 145 N.J. Super. 246

(Law Div. 1976), affd 153 N.J. Super. 158 (App. Div.

1977). Challenges to the constitutionality of these stops

would require inquiries into events in cases where the

police may not have been careful to record the circum-

stances surrounding the stop because they acted under

the belief that no justification for the stop was necessary.

Moreover, even if this third consideration is not as com-

pelling a rationale for declining to grant retroactivity as

it was in Howery, when weighed against the two previous

factors, a refusal to allow Delaware v. Prouse, supra, to be

applied retroactively is indicated.

Howery was on direct appeal when Franks was decided.

The Court in Howery was fully aware of the direct appeal

status in that case and declined to afford relief. Indeed

lla

the dissenting opinion in Howery argued that retroactivity

should have been accorded and it begins with the ob-

servation by the dissenting Justice that the “defendant

had not as yet exhausted all avenues of direct judicial

review to which he was entitled by rule of court.” Howery

is therefore controlling. We cannot apply Prouse retro-

actively to this matter even though the case is still

on direct appeal; nor is it significant that the defendant

raised the constitutionality of the random vehicle stops

below, thus purporting to preserve his position on appeal.

We note that our determination that Prouse should not be

applied retroactively is in accord with the recent decision

of this court in State v. Mann, 171 N.J. Super. 178 (App.

Div. 1979). Contra State v. Carpentieri, 168 N.J. Super.

589 (App. Div. 1979), certif. granted 81 NJ. 406 (1979).

II

Defendant next argues that the trooper’s search of the

interior of the vehicle at the scene was illegal, lacking

probable cause. Having properly stopped the vehicle and

having requested the defendant to exit, Pennsylvania v.

Mimms, supra, the trooper testified that he then detected

the odor of marijuana coming from the interior of the car.

The judge assessed this testimony and found it to be cred-

ible and sufficient to establish probable cause. We agree.

State v. Johnson, 42 N.J. 146 (1964).

Ill

The defendant also raises the constitutionality of the

search of the car trunk asserting that there was no prob-

able cause to search the trunk and that the warrant did

not satisfy the particularity requirement of the State and

Federal Constitution. He further complains that the de-

struction of the seized marijuana violated his right to due

12a

process. He also complains that his conviction of “pos-

session with intent to distribute” N.J.S.A. 24:21-19(a) (1)

was improper. We have considered these contentions and

find them to be without merit. R. 2:11-3(e)(2). Finally,

the defendant asserts that the motion judge improperly

limited his right of cross-examination of the arresting of-

ficer as to his observation that the automobile was “weav-

ing. As discussed above in the first point raised by the

defendant, the issue of “weaving” is relevant only if there

had been a determination by this court that the proscrip-

tion on random stops determined in Prouse should be

given retroactive effect. Having declined so to do, the

question of “weaving” is no longer relevant.

AFFIRMED.

A TRUE COPY.

/s/ Elizabeth McLaughlin,

Clerk