Opposition — Hatami v. New Jersey

oe ae eer er oe

Suurents Court, U.S, 7

: DP

No. 80-562 | . FEL

_ ev

|

In THE

akG 4 1980

Supreme Court of the United Stites =

Octosrer Term, 1980

CYRUS HATAMI,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

BRIEF IN OPPOSITION

Joun J. DEGNAN,

Attorney General of New Jersey,

Attorney for Respondent, State of

New Jersey,

State House Annex,

Trenton, New Jersey 08625.

(609) 452-9500

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Appellate —

Of Counsel.

ALLAN J. NopeEs,

Deputy Attorney General,

Of Counsel and

On the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

Question Presented

Do the past decisions of this Court indicate that Arkansas

v. Sanders, 422 U.S. 753 (1979) and United States v. Chad-

wick, 483 U.S. 1 (1977) should be applied retroactively.

TABLE OF CONTENTS

PAGE

Question PrEesENTED i

Opinions BeLow 1

J URISDICTION . 2

ConstTITUTIONAL Provisions, Statues anp Rutes Iv-

VOLVED 2

United States Constitution, Article VI, Clause 2 2

United States Constitution, Amendment IV ...-... 2

United States Supreme Court Rule 17 ...2.......... 3

Constitution of the State of New Jersey, Article

1, Paragraph 7 4

N.J.S.A. 24:21-19. Prohibited acts 7 +

N.J.S.A. 24:21-20. Prohibited acts 5

STATEMENT OF THE CASE 5

SUMMARY OF ARGUMENT ................- 8

ARGUMENT:

Point I—The petition does not present a sub-

stantial question because this Court’s prior

decisions indicate that Arkansas v. Sanders,

442 U.S. 753 (1979) and United States v. Chad-

wick, 433 U.S. 1 (1977) should be applied

| ae me

CoNCLUSION : 14

li TABLE OF CONTENTS

PAGE

Cases Cited

Almeida-Sanchez v. United States, 413 U.S. 266

(1973) 10

Arkansas v. Sanders, 422 U.S. 753 (1979) .......... i, 7, 8, 12, 13

Bowen vy. United States, 422 U.S. 916 (1975) ..22.02.. 10

Brown v. Louisiana, —— U.S. ——, 100 S.Ct. 2214

(1980) sae Oa

California v. Minjores, 24 Cal.3d 410, 591 P.2d 514,

153 Cal.Rptr. 224 (Sup. Ct. 1979), cert. den, ——

U.S. ——, 62 L.Bd.2d 117 (1979) 220... sccsceosscceoees 13

Carroll v. United States, 267 U.S. 182 (1925) —.....2. 12

Chambers v. Maroney, 399 U.S. 42 (1972)... 12

Desist v. United States, 394 U.S. 244 (1969) 9, 10

Epp v. New Jersey, —— U.S. —— (Docket No. 79-

A | | eae ee 9

Franks v. Delaware, 488 U.S. 154 (1978) -20022... eee 11

Gosa v. Mayden, 413 U.S. 665 (1975) ooo eeeeee 9

Great Northern Ry. Co. v. Sunburst Oil & Refining

RA, FU SURE ec cscetecrceeescesentnenensecesemssatnocnnensi 9

Johnson v. New Jersey, 384 U.S, 719 (1960)... 11

KXaufman v. New Jersey, U.S. —— (Docket No.

80-216, cert. deined October 14, 1980)... )

IKXemner v. Texas, —— S.W.2d , 29 Cr.L.Rptr.

3196 (Texas Ct. of Crim. App. 1979) ...................... 13

Linkletter v. Walker, 381 U.S. 618 (1965) 0...

Mapp v. Ohio, 367 U.S. 643 (1961) 2... eesecees i)

Nastu v. State, 589 S.W.2d 434, 26 Cr.L.Rptr. 2117

(Tex. Ct. Crim. App. October 3, 1979) ...........~....... 13

TABLE OF CONTENTS iii

PAGE

Sarto v. New Jersey, —— U.S, —— (Docket No. 80-

5284, cert. denied October 20, 1980) 9

State v. Howery, 80 N.J. 568, 404 A.2d 632 (1979) ........ 11, 12

Stovall v. Denno, 388 U.S. 293 (1967) ............-.sccecceeceese 11,13

State in the Interest of A.C., 115 N.J. Super. 77,

278 A.2d 225 (App. Div. 1971) 12

State v. Kahlon, 172 N.J. Super. 331, 411 A.2d 1178

(App. Div. 1980) ............... 13

State v. Nash, 64 N.J. 464, 317 A.2d 689 (1974) ........ 11

State v. Patino, 80 N.J. 1, 401 A.2d 1095 (1980) .......... 12

State v. Smith, 113 N.J. Super. 120, 273 A.2d 68

AI, PE, TNT cccseuiiclonsssecetieinitppepdliaainedinacmeiacenisnaintedeh 12

Stone v. Powell, 428 U.S. 465 (1976) 0. eeceeceeee sy)

Stovall v. Denno, 388 U.S. 293 (1967) ...................ccesceee- 11,13

United States v. Berry, 571 F.2d 2 (7 Cir. 1978) (on

rehearing) cert. den, sub. nom. Richardson vy.

United States, 439 U.S. 840 (1978) 13

United States v. Calandrella, 605 F.2d 236 (6 Cir.

i) 13

United States v. Chadwick, 483 U.S. 1 (1977) ........ i, 8, 12, 13

United States v. Choate, 576 F.2d 165 (9 Cir. 1978),

cert. den. 439 U.S. 954 (1978) ....0-..cccccessececccsesscoceveors 13

United States v. Dien, 615 F.2d 10 (2 Cir. 1980) ...... 13

United States v. Gooch, 603 F.2d 122 (9 Cir. 1979) 138

United States v. MacKay, 606 F.2d 264 (9 Cir. 1979) 138

United States v. Miller, 608 F.2d 1089 (5 Cir. 1979) 13

United States v. Peltier, 422 U.S. 531 (1975) -........... 9, 10, 12

iv

TABLE OF CONTENTS

PAGE

United States v. Reda, 563 F.2d 510 (2d Cir. 1977) 13

United States v. Steward, 595 F.2d 500 (9 Cir. 1979) 18

Fourth Amendment

N.J.S.A.

N.J.S.A.

N.J.S.A.

N.J.S.A.

N.J.S.A.

Williams v. United States, 401 U.S. 646 (1970) .......... 10

United States Constitution Cited

Article VI, Clause 2 ........cccccccccesses 2

stalanshigelapalaalgeanaiasiea teas adie e aaa 2,10, 12

New Jersey Constitution Cited

Article 1, Paragraph 7 +

Statutes Cited

ys | a ncnes sie icishaeeaiiaiiaiaaiiadaal +

DE ED) sccecerinsistiicteoionatale 7

24:21-19b(2) .....--.2020-- 7

DR GIAED Siktnsisatiriinsais 5

24 :21-20a(2) 7

25 U.S.C. Sec. 1257(3) ...... 2

Rule Cited

United States Supreme Court Rule 17 00... 3

No. 80-562

IN THE

Supreme Court of the United States

Ocroser Term, 1980

=

—_

CYRUS HATAMI,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

La

—_

BRIEF IN OPPOSITION

Opinions Below

The opinion of the Appellate Division of the Superior

Court of the State of New Jersey dated June 27, 1979, is

appended to petitioner’s Petition for Certiorari at pages

la-Ga. The opinion of the Appellate Division of the Su-

perior Court of the State of New Jersey dated November

21, 1979, is appended to the petition at pages 7a to 9a. The

order of the Supreme Court of the State of New Jersey

dated February 15, 1980, denying petitioner’s petition for

certification is appended to the petition at page 10a. The

order of the Supreme Court of the State of New Jersey

dated April 30, 1980, denying petitioner’s motion for a re-

hearing of the order denying his petition for certification

is appended to the petition at page 11a.

Jurisdiction

The State of New Jersey agrees that 25 U.S.C, see, 1257

(3) is the basis for this Court’s jurisdiction.

Constitutional Provisions, Statutes and Rules Involved

United States Constitution, Article VI, Clause 2.

This Constitution, and the Laws of the United States

which shall be made in pursuance thereof; and all

Treaties made, or which shall be made, under au-

thority of the United States, shall be the Supreme

Law of the Land; and the Judges in every State

shall be bound thereby, anything in the Constitution

or Laws of any State to the contrary notwithstanding.

United States Constitution, Amendment IV

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized,

3

United States Supreme Court Rule 17:

Considerations Governing Review of Certiorari

1. A review on writ of certiorari is not a matter

of right, but of judicial discretion, and will be grant-

ed only when there are special and important rea-

sons therefor. The following, while neither con-

trolling nor fully measuring the Court’s discretion,

indicate the character of reasons that will be con-

sidered.

(a) When a federal court of appeals has rendered

a decision in conflict with the decision of another

federal court of appeals on the same matter; or has

decided a federal question in a way in conflict with

a state court of last resort; or has so far departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by

a lower court, as to call for an exercise of this Court’s

power of supervision,

(b) When a state court of last resort has decided a

federal question in a way in conflict with the deci-

sion of another state court of last resort or of a fed-

eral court of appeals.

(c) When a state court or a federal court of appeals

has decided an important question of federal law

which has not been, but should be, settled by this

Court, or has decided a federal question in a way

in conflict with applicable decisions of this Court.

2. The same general! considerations outlined above

will control in respect of petitions for writs of cer-

tiorari to review judgments of the Court of Claims,

of the Court of Customs and Patent Appeals, and

of any other court whose judgments are reviewable

by law on writ of certiorari.

4

Constitution of the State of New Jersey, Article 1,

Paragraph 7.

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, except upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

N.J.S.A, 24:21-19. Prohibited acts.

A. Manufacturing, distributing, dispensing—Penalties

a. Except as authorized by this act, it shall be un-

lawful for any person knowingly or intentionally:

(1) To manufacture, distribute, or dispense, or to

possess or have under his control with intent to

manufacture, distribute, or dispense a controlled

dangerous substance; or

b. Any person who violates subsection a. with re-

spect to:

7 . .

(2) A substance, in a quantity of one ounce or more

including any adulterants or dilutants, classified in

Schedules I or IL which is a narcotie drug, provided

that there are included at least 3.5 grams of the pure

free base Schedule I or If narcotie drug, is guilty

of a high misdemeanor and shall be punished by

imprisonment for up to life, a fine of not more than

25,000.00, or both; or

N.J.S.A. 24:21-20. Prohibited acts.

B. Possession, use or being under influence—Penalties.

a. It is unlawful for any person, knowingly or in-

tentionally, to obtain, or to possess, actually or

constructively, a controlled dangerous substance un-

less such substance was obtained directly, or pur-

suant to a valid prescription or order from a prac-

titioner, while acting in the course of his profes-

sional practice, or except as otherwise authorized by

this act. Any person who violates this section with

respect to:

* * *

(2) A substance, in a quantity of 1 ounce or more

including any adulterants or dilutants, classified in

Schedule I or IT which is a nareotie drug, provided

that there are included at least 3.5 grams of the

pure free base Schedule I or IT narcotic drug, is

guilty of a high misdemeanor and shall be punished

by imprisonment for not more than 7 years, a fine

of not more than $15,000.00, or both;

Statement of the Case

On March 11, 1977, the New Jersey State Police re-

ceived an indictment warrant for petitioner and two other

persons. The indictments were for conspiracy to import

morphine. (Petitoner’s appendix at 2a). In an attempt to

locate these individuals State Police officers began a twenty-

four hour surveillance of apartment No. 7 at 31 Cedar

Avenue in Long Branch. At approximately 1:30 p.m. on

March 12, 1977, a 1977 Ford was observed pulling into the

parking lot adjacent to the apartment building and two

6

males, one of whom was later identified as petitioner, en-

tered the apartment. Petitioner carried a red airline bag

into the residence. It was determined that defendant had

rented the vehicle from a Freehold rental agency. (Peti-

tioner’s appendix at 2a).

Approximately one-iaif hour later a second car arrived

and two individuals, jater identified as Keith Gordon and

April Knipple, entered the apartment. At approximately

2:35 p.m. Gordon and Knipple left the apartment and

Gordon placed some object under the dashboard of the car.

The police followed the car, stopped it and asked the

occupants to exit. One of the officers then reached under

the dash and found a white jar with a powdery substance.

Gordon and Knipple were then arrested. (Petitioner’s

appendix at 3a to 4a).

At about 3:15 p.m. petitioner left the residence at 31

Cedar Avenue with a different type of gym bag than that

with which he had entered the residence. He placed this

bag in the trunk of the car. Petitioner then entered the

ear with another individual from the apartment and drove

away. Officers following petitioner’s ear observed that it

was operated in an erratic manner. Petitioner was over

compensating on curves, and crossing over lines. Due to

the erratic manner in which petitioner was operating his

vehicle and the intervening discovery of suspected narcotics

in the other vehicle, the State Police determined that they

would intercept petitioner’s vehicle before it reached its

next destination. Petitioner’s vehicle was then stopped at

the Eatontown Circle. (Petitioner’s appendix at 3a).

One of the police officer’s produced State Police identi-

fication and ordered the petitioner to turn off the engine.

After this and several other requests were ignored the

officer reached into the car and turned off the engine him-

self. (Petitioner’s appendix at 3a).

Petitioner exited the ear and both police officers noticed

that petitioner had difficulty walking and speaking. In ad-

dition, one of the officer’s smelled the odor of marijuana

on his clothing and his person. One of the officers then

requested petitioner’s driver’s license, verified his identity,

and placed him under arrest. (Petitioner’s appendix at

3a).

One of the officer’s began a search of the passenger

compartment of the automobile while another searched the

trunk. (Petitioner’s appendix at 3a). The items which

were found in the automobile formed the basis for peti-

tioner’s motion to suppress.

Petitioner was indicted for possession of heroin with

intent to distribute contrary to N.J.S.A. 24:21-19a(1) and

24:21-19b(2) (Count I) and possession of heroin contrary

to N.J.S.A. 24:21-20a((2) (Count IT). On June 22, 1977,

the Honorable Donald J. Cunningham, J.C.C., denied peti-

tioner’s motion to suppress evidence. Petitioner was tried

before the Honorable John P. Arnone, J.S.C., on October

12 and 13, 1977. On October 13, 1977, he was found guilty

of both counts of the indictment. On December 16, 1977,

petitioner was sentenced to a term of 25 to 30 years in

State Prison on Count I and a concurrent 5 to 10 years on

Count II. (Petitioner’s appendix at 2a).

Petitioner filed Notice of Appeal on December 16, 1977.

On June 27, 1979, the Appellate Division affirmed defend-

ant’s conviction. (Petitioner’s appendix at la to 6a).

On July 5, 1979, defendant filed a Petition for rehearing.

This petition was granted limited to the issues raised

in Arkansas v. Sanders, on July 23, 1979. Following the

rehearing the Appellate Division again affirmed petitioner’s

conviction. (Petitioner’s appendix at 7a to 9a).

The Supreme Court of the State of New Jersey denied

petitioner’s petition for certification on February 15, 1980.

(Petitioner’s appendix at 10a). Petitioner’s motion for a

rehearing of the denial of his petition for certification was

denied on April 30, 1980. (P titioner’s appendix at lla).

Summary of Argument

There is, in general, no constitutional right to retroactive

application of constitutional doctrines. In fact, this Court

has clearly indicated extreme reluctance to grant retro-

active application to exclusionary rule doctrines. Since

United States vy. Chadwick, 442 U.S. 753 (1979) and

Arkansas vy. Sanders, 483 U.S. 1 (1977) represent major

changes in our law and the prior law was relied on ex-

tensively by law enforcement personnel and the courts,

these opinions should be given only prospective applica-

tion.

ARGUMENT

POINT I

The petition does not present a substantial question

because this Court’s prior decisions indicate that Arkan-

sas v. Sanders, 442 U.S. 753 (1979) and United States

v. Chadwick, 433 U.S. 1 (1977) should be applied

prospectively.

Petitioner contends that the courts of the State of New

Jersey have violated his constitutional right to be free of

unreasonable searches and seizures by refusing to apply

the decisions in Arkansas \ Sanders, supra, and United

States v. Chadwick, supra, retroactively. This argument

misinterprets both the purpose of the exclusionary rule

and the law of retroactivity.

It should first be noted that on three separate occasions

this Court has denied petitions for certiorari submitted

by New Jersey petitioners who raised the precise issue

raised herein. Epp v. New Jersey, U.S{ —— (Docket

No. 79-1861, cert. den. Oct. 6, 1980); Sarto v. New Jersey,

U.S. —— (Docket No. 80-5284, cert. denied October

20, 1980); Kaufman v. New Jersey, U.S. —— (Docket

No. 80-216, cert. denied October 14, 1980).

It should be remembered that criminal defendants do

not have a constitutional right to liave evidence suppressed.

See, Stone v. Powell, 428 U.S. 465, 486-487 (1976) ; United

States v. Peltier, 422 U.S. 531, 535-5387 (1975); Desist v.

United States, 394 U.S. 244, 250 (1969). Rather, they have

the right to be free from unreasonable searches and seiz-

ures. Although of constitutional origin [Mapp v. Ohio,

367 U.S. 648, 649-654 (1961)] the exclusionary rule is mere-

ly a “procedural weapon” for the enforcement of constitu-

tional rights. Desist v. United States, supra at 250; Link-

leiier v. Walker, 381 U.S. 618, 6838 (1965). Therefore, this

Court in Linkletter specifically declined to give retroactive

effect to its earlier decision in Mapp v. Ohio, supra.

There is no per se constitutional violation inherent in

refusing to grant retroactive effect to new exclusionary

rule doctrines. Indeed, in Linkletter this Court unequivo-

vally stated that “the Constitution neither prohibits nor

requires retrospective effect. As Justice Cardozo said, ‘We

think the Federal Constitution has no voice on the sub-

ject.’ 381 U.S. at 629 (citing Great Northern Ry. Co. v.

Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932).

Moreover, this Court has been extremely reluctant to give

retroactive effect to constitutional rules which do not im-

pact on the truth finding process. Gosa v. Mayden, 413

U.S. 665 (1975). In United States vy. Peltier, supra, this

Court found that the exclusion of evidence obtained in vio-

10

lation of Fourth Amendment guarantees came within this

classification. 442 U.S. at 534-537. See also Bowen v.

United States, 422 U.S. 916 (1975).

The State emphasizes that Sanders and Chadwick, supra,

have no application to the case currently under review.

However, should this Court view the instant matter as

an appropriate vehicle to decide the retroactivity of San-

ders, supra, we offer the following observations. The ap-

plication of new extensions of the exclusionary rule has

been expressly rejected by this Court. See, e.g., Williams

v. United States, 401 U.S. 646 (1970) and Desist v, United

States, supra. Any conceivable doubt as to the Court’s

position on this issue was totally removed in United States

v. Peltier, supra, wherein the condemnation of roving

border patrol searches expressed in Almeida-Sanchez v.

United States, 413 U.S. 266 (1973), was accorded no effect

to the Peltier case. The Court prefaced its determination

thusly :

Since 1965 this Court has repeatedly struggled

with the question of whether rulings in criminal cases

should be given retroactive effect. In those cases

where the major purpose of new constitutional doe-

trine is to overcome an aspect of the criminal trial

that substantially impairs its truth-finding function

and so raises serious questions about the accuracy

of guilty verdicts in past trials ... the doctrine has

quite often been applied retroactively. It is indis-

putable, however, that in every case in which the

Court has addressed the retroactivity problem in

the context of the exclusionary rule, whereby con-

cededly relevant evidence is excluded in order to en-

force a constitutional guarantee that does not relate

to the integrity of the factfinding process, the Court

has concluded that any such new constitutional prin-

, 11

ciples would be accorded only prospective applica-

tion. United States v. Peltier, supra at 535; (em-

phasis supplied; citations and footnote omitted.)

The State believes that utilization of the proper stand-

ards and, more importantly, appreciation of the funda-

mental purpose of the exclusionary rule clearly militate

in favor of prospective only application of the Sanders

decision. In Stovall v. Denno, 388 U.S. 293 (1967), this

Court declared that the tests to be used in determining

whether to grant retrospective application to constitutional

rules are:

(a) the purpose to be served by the new standards,

(b) the extent of the reliance by law enforcement

authorities on the old standards, and (ce) the effect

on the administration of justice of a retroactive ap-

plication of the new standaru.

Id. at 297.* See Johnson v. New Jersey, 384 U.S. 719, 728

(1960).

When these criteria are applied to Chadwick and San-

ders, it becomes evident that only prospective applica-

* Petitioner implies that in State v. Howery, 80 N.J. 563, 404

A.2d 632 (1979) (New Jersey Supreme Court refused to give

retroactive effect to this Court’s decision in Franks v. Delaware,

438°U.S. 154 (1978)) the court’s decision was reached solely by

applying guidelines established in State v. Nash, 64 N.J. 464, 317

A.2d 689 (1974). It is to be noted that the Nash guidelines are

precisely those set forth by this Court in Stovall. Indeed, the

Supreme Court of New Jersey specifically cited this Court as

the authority for the rules set forth in Nash. Jd. at 471-472, 317

A.3d 692-693. Therefore, the New Jersey Supreme Court clearly

used the proper standard in Howery. The same standard was ap-

plied by the Appellate Division of the New Jersey Superior Court

in this case.

12

tion should be given these opinions. The purposes of

the exclusionary rule can in no way be advanced by giv-

ing retroactive application to new decisions in the law

of search and seizure. If the police gain evidence in

a manner which they have reason to believe is accept-

able and that evidence is suppressed due to a later change

or clarification of the law in that area the only benefit

will be to the criminal who is set free even though there

is no doubt as to his guilt. Our society cannot gain

since there could not possibly be any deterent effect in

such application of the exclusionary rule. The exclusion-

ary rule and the rules set forth in Chadwick and Sanders

cannot be advanced by retroactive application. See, Brown

v. Louisiana, USS. , 100 S.Ct. 2214, 2219 (1980) ;

United States vy. Peltier, supra at 538-539; State v. Patino,

80 N.J. 1, 5 n.2, 401 A.2d 1094, 1095 (1980); State v.

Howery, swpra, at 569, 401 A.2d at 635.

With regard to the second factor it is clear that police

officers relied substantially on cases such as Carroll v.

United States, 267 U.S. 1382 (1925) and Chambers v. Ma-

roney, 399 U.S. 42 (1972), in searching the contents of

automobiles when probable cause was present. Prior to

the decision in Chadwick there was no reason to believe

that suitcases were outside the automobile exception. See,

State in the Interest of A.C., 115 N.J. Super. 77, 278 A.2d

225 (App. Div. 1971); State v. Smith, 113 N.J. Super, 120,

273 A.2d 68 (App. Div. 1971). Indeed, this Court in

Sanders reeognized that both courts and law enforce-

ment officers have often found difficulty in applying pre-

vious Fourth Amendment decisions to individual cases.

99 S.Ct. at 2589. To hold police officers to a standard

which the Supreme Court of the United States has found

the courts unable to meet would be unreasonable. More-

over, there can be little doubt that retroactive application

13

of Chadwick and Sanders would place a significant burden

on the administration of justice.

Application of the factors set forth in Stovall v. Denno,

supra, lead to the inescapable conclusion that Sanders

and Chadwick have no bearing on the case at bar. See,

United States v. Calandrella, 605 F.2d 236 (6 Cir. 1979);

United States v. Steward, 595 F.2d 500, 503 (9 Cir. 1979) ;

United States vy. Berry, 571 F.2d 2 (7 Cir. 1978) (on

rehearing) cert. den. sub. nom. Richardson v, United

States, 489 U.S. 840 (1978); United States v. Choate, 576

F.2d 165, 182 n.20 (9 Cir. 1978), cert. den. 439 U.S. 954

(1978) ; United States yv. Reda, 563 F.2d 510 (2 Cir, 1977),

(holding Chadwick to be prospective only); California v.

Minjores, 24 Cal.38d 410, 591 P.2d 514, 153 Cal.Rptr. 224

(Sup. Ct. 1979), cert. den. —— US. , 62 L.Ed.2d 117

(1979). State v. Kahlon, 172 N.J. Super. 331, 341, 411

A.2d 1178, 1183 (App. Div. 1980); Kemner v. Texas, ——

S.W.2d , 25 Cr.L.Rptr. 3196 (Texas Ct. of Crim.

App. 1979); Nastu v. State, 589 S.W.2d 434, 26 Cr.L.Rptr.

2117 (Tex. Ct. Crim. App. October 3, 1979). But see,

United States vy. Dien, 615 F.2d 10 (2 Cir. 1980); United

States v. Miller, 608 F.2d 1089 (5 Cir. 1979), (holding that

Sanders is retroactive to Chadwick only); United States

v. Mackay, 606 F.2d 264 (9 Cir. 1979); and United States

v. Gooch, 603 F.2d 122 (10 Cir. 1979).

Based on the foregoing it is clear that the New Jer-

sey courts properly decided that Chadwick and Sanders

should not be given retrospective application.

14

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that the petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

Joun J. DeaGnan,

Attorney for Respondent, State of

New Jersey,

State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

By: Joun DeCticco,

Assistant Attorney General.

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Of Counsel.

ALLAN J. Nopes,

Deputy Attorney General,

Division of Criminal Justice,

On the Brief.