# Opposition — Hatami v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1035

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0577%3A2. Public record. Not legal advice.