# Petition — Stevens v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 952

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0157%3A1. Public record. Not legal advice.