Petition — Toubus v. Superior Court of California, County of Marin

Office-Supreme Court, U.S.

ih 2p

»80-1912 MAY 11 1981

ALEXANDER L. STEVAS,

LE RK

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

PHILIP CHARLES TOUBUS,

Petitioner,

vs.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,

COUNTY OF MARIN and STATE OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

MARSHALL W. KRAUSE,

RICHARD M. GRANT,

KRAUSE, TIMAN, BASKIN, SHELL & GRANT

Wood Island, Suite 207

60 E. Sir Francis Drake Blvd.

Larkspur, CA 94939

Telephone: (415) 461-4100

Attorneys for Petitioner.

QUESTIONS PRESENTED

l. Where officers enter the home

and make an arrest without warrant,

without notice, without emergency and

without consent, does the consensual

presence of an undercover agent at the

time of the arrest satisfy the require-

ments of the Fourth and Fourteenth

Amendments?

2. Assuming arguendo that the

petitioner's arrest was illegal, must

evidence obtained under a search warrant

issued in substantial part because of

that tainted arrest be suppressed, or

are the requirements of the Fourth

Amendment satisfied by excising the

tainted information and testing’ the

balance for sufficiency?

SUBJECT INDEX

Questions presented .....

Opinion below . . .« «2 8 e 6

Jurisdiction ... +++.

Statement of the case... .

The undercover "buy" ...

The arrest .... «6 « «

The search . see eeee

The proceeding in the trial

Page

ae i

te ar 2

phere 2

nee ee 2

ae ee 3

Rewrce 5

‘6 8

court 9

Proceedings in the appellate court 10

Reasons for granting a writ .

I

The Warrant Clause does not allow

a warrantless home arrest by

police officers just because

the homeowner had previously

consented to the entry of an

undercover officer who does

not participace in the arrest. .

II

The Fourth Amendment does not

allow a home entry by police

without announcement and not

ice

just because the homeowner had

previously consented to the

entry of an undercover agent

tte

12

12

26

Page

II!

The evidence sought to be

suppressed cannot be admitted

on the independent ground that

evidence not based on the

arrest was sufficient to

support a search warrant because

such a ruling encourages police

lawlessness and violates Fourth

and Fourteenth Amendments .... 28

IV

ST ee ae eek a i

-iii-

TABLE OF AUTHORITIES CITED

Cases Page

Commonwealth v. Hall (1975)

ass. ’ Wels ae 329.--«.0 32

Grzesrowski v. State, 343 N.E.2d 305

(Ind. 1976) . . . . . . . . . . . 25

Hansen v. State of Florida,

(Fla.App. 1979) 372 So.2d 1003 24, 25

Hoffa v. United States, 385 U.S. 293 18

In Semayne's Case, 77 Eng.Rep. 194

. 7 + ” . . . . . . . . . 27

James v. United States

(D.C. Cir. 1969) 418 F.2d 1150

So, 8 OKO + 0”). 6378 ae a 30, 32, 33, 34

Ker v. California, 374 U.S. 23. « « 27

Krauss v. Superior Court (1971)

5 C.3d 418 . > . . . . . . . . 37, 38

Mapp v. Ohio, 367 U.S. 643 ..... 12

Payton v. New York (1980) 445 U.S. 573

. . la, L3, 15, 16, 18, 19, 21, 27, 40

People v. Cook (1978) 22 C.3d 67

7 & . 7 . . . a . . . . 36, 37, 38, 39

People v. McCoy (1974) 40 C.A.3d 854 25

Raymond v. Superior Court (1971)

LP CobsaG Ban ¢- 0 « 's 0 Sep, O80. 2d9 36

State v. Dugger (Wash.App. 1974)

528 P.2d ° . a . . . . . . 22, 23

-iv-

TABLE OF AUTHORITIES CITED

Cases Page

State v. Roman (Fla.App. 1975)

oO. 2 . 7 . . ° . . . cm . 25

Steagald v. United States,

U.S. (April 21, 1981)

Giip opinion . . . « « © « Ide 16, 19

United States v. Bradley,

455 F.a2a Lie. (1st Cir. 1972) .. 25

United States v. Giordano (1974)

SL0 Uells DOS 6. @ 0 aU Sap Bee 330 35

United States v. Glassel,

486 F.2d 143 (9th Cir. 1973)... 25

United States v. Langley,

466 F.2a0 27 (oth Cir. +572) o wi Sle 3a

United States v. Marchland,

SG4 0.20 96S (B.C. Cake L977) « + - 393

United States v. Nelson,

e 4 (6th Cir. 1972) . - - 33

United States v. Velasquez, 626 F.2d

314 (3rd Cir. TeGG) «. « aes. 49, 265. 2

United States v. Watson, 423 U.S. 411 12

Wolf v. Colorado, 338 U.S. 25 ..e«.- 1212

Wong Sun v. United States (1963)

3 1 Uebe 471 o . 7 . . . a . 7 . . 30

-V=

TABLE OF AUTHORITIES CITED

Other Authorities Page

18 U.S.C. § 3109 + . * . . . . . . . 27

28 GG sGCe § 1257 . . + . e . . ° . ° 2

28 U. S.C. § 2101 o . . . . . . . e . 2

United States Constitution:

Pourth Amenament .. « « «eee

13, 15, 18, 26, 27, 28, 30, 34, 36, 39

Fourteenth Amendment ..... 12, 28

LaFave, Search and Seizure, A

Treatise on the Fourth Amendment,

5 Beuey VOLe 39: De GOL 6 0:0 0 2 © 36

-Vvi-

No.

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

PHILIP CHARLES TOUBUS,

Petitioner,

vs.

THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA, COUNTY OF MARIN

and STATE OF CALIFORNIA,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal,

State of California,

First Appellate District

Petitioner, PHILIP CHARLES TOUBUS,

respectfully prays that a writ of

certiorari issue to review the judgment

of the Court of Appeal of the State of

California in and for the First

Appellate District (1 Civil No. 49876)

entered in this matter on January 7,

1981.

OPINION BELOW

The opinion of the Court of Appeal

of the State of California, First

Appellate District and the order of the

Supreme Court of California on March ll,

1981, denying a petition for hearing,

are reproduced in the appendix.

JURISDICTION

This Court's jurisdiction is

invoked under 28 U.S.C. §§ 1257 and

2101, this being a petition arising out

of a right claimed under the

Constitution of the United States. The

petition is filed within 60 days of

March 1l, 1981.

STATEMENT OF THE CASE

The facts we state are undisputed

in the . record unless otherwise

indicated.

The Undercover "Buy"

An informant, only identified as

"Liz," told agents of the California

Department of Justice in October of 1979

that petitioner was dealing in cocaine.

P.H.T. 63.2 On January 27, 1980 Special

Agent Lauren Platt asked to arrange a

buy of cocaine from petitioner and she

allegedly did so by telephone on that

date. P.H.T. 64. On the next day,

January 28, 1980, in the presence of

Bureau of Narcotic Enforsement Special

Agent Brown, Liz telephoned petitioner

and made arrangements to go to his home

at 645 Larkspur Plaza, Larkspur, Cali-

fornia to buy the cocaine at about 5:00

p.em. P.H.T. 25-28. The cocaine was to

1 the following designations have been

used in this brief: P.H.T. (Reporter's

Transcript of Preliminary Hearing); Pet.

Writ (Petition for Writ of Mandate in

the California Court of Appeal, First

Appellate District.)

Re

be purchased by Liz's cousin.

At 5:00 p.m. on January 28th Liz

and State Agent Christie McCampbell

knocked on petitioner's door and were

admitted. The agent was introduced as

Liz's cousin's girlfriend. Petitioner

produced a bag of white powder and Agent

McCampbell informed him that she would

telephone her boyfriend from another

location. She and Liz left the premises

and drove a few blocks away where they

met with a force of other agents, all in

civilian clothes, and informed them what

happened. P.H.T. 12.

About 20 minutes later Agent

McCampbell, Agent Brown (who was playing

Agent McCampbell's boyfriend and Liz's

cousin) and Liz returned to petitioner's

residence and were again admitted by pe-

titioner. Agent Brown examined the al-

leged cocaine and then told the inform-

ant to leave the apartment in order to

-4-

get a scale to weigh it. P.H.T. 13.

This was a pre-arranged signal for the

agents waiting outside of the apartment

to enter and arrest petitioner. P.H.T.

14.

The Arrest

A few minutes later the remaining

agents entered without knocking and ar-

rested petitioner and the undercover of-

ficer. P.H.T. 14-16. At no time did

the undercover agents identify them-

selves in the presence of the petitioner

because they wished to continue their

undercover identities. P.H.T. 14; 32-

33.

None of the arresting officers had

a warrant for the petitioner's arrest in

his home or elsewhere. P.H.T. 19. The

informant and Agent McCampbell had left

the front door to petitioner's apartment

ajar "an inch maybe." P.H.T. 16. Agent

Sa

McCampbell testified at the preliminary

hearing that there was no knock and that

the officers simply identified them-

selves as police officers "simultaneous-

ly with coming through the door .. ."

P.H.T. 16-17. The actual arrest was

made by Agent Lauren Platt. P.H.T. 57-

58.

One of the most important things to

be noted in the present factual situa-

tion is how simple it would have been

for the state agents to have obtained a

warrant for petitioner's arrest in his

home,

On the day before the arrest in

this case, state narcotics agents had

listened to the informant Liz make a

telephone arrangement with petitioner to

purchase cocaine at his home. The very

action contemplated should have alerted

the agents that an arrest warrant would

in all likelihood be required. The co-

=Gx

caine purchase was confirmed by Liz the

next day and then both Liz and an under-

cover agent saw what appeared to be co-

caine in petitioner's apartment on their

first visit. This occurred on a Monday

afternoon, They left petitioner's

apartment and consulted other agents

close by and informed them of what they

had seen, About 20 minutes later Liz

and two undercover agents again entered

petitioner's apartment and about 10 min-

utes after that the arrest was made. At

no time did petitioner exhibit any ner-

vousness or intention to leave his

apartment or terminate the transaction,

It is obvious that at several

stages in this procedure there was

sufficient probable cause to obtain an

arrest warrant. In neither the trial

court nor the Court of Appeal has the

prosecutor argued exigent circumstances

or emergency or even attempted) to argue

that obtaining a warrant might have

interfered with the arrest or threatened

the officers' safety.

The Search

The arresting officer, Agent Platt,

then swore out a search warrant affida-

vit reciting the fact of the warrantless

arrest of petitioner and his observation

at the time of the arrest of a plastic

bag containing approximately 14 ounces

of “white powdery substance which ap-

peared to be cocaine." The affidavit

also recited that during a_ cursory

search of the other rooms of the apart-

ment for other possible suspects he ob-

served certain paraphernalia associated

with illicit drug sales. A search war-

rant was issued and a search ensued in

which some additional evidence sought to

be used against petitioner was obtained.

The Proceeding in the Trial Court

Petitioner is the defendant in case

No. 7436 pending in the Superior Court

of the State of California, County of

Marin. Petitioner is charged with vio-

lation of three felonies involving al-

leged possession of illegal drugs in

violation of the Health and Safety Code

of the State of California.

On May 1, 1980, petitioner filed a

motion to suppress all of the tangible

evidence seized pursuant to the illegal

arrest and subsequent search, on the

ground that said evidence was obtained

in violation of petitioner's constitu-

tional rights. (Pet. Writ, Exhibit "C")

On May 29, 1980, petitioner's motion

came on for hearing. By stipulation,

the transcript of the evidence at the

preliminary hearing was introduced in

evidence and no further testimony was

taken, (Pet. Writ, p. 4) On June 6,

-9-

1980, petitioner's motion to suppress

the evidence was denied. (Pet. Writ,

Exhibit E).

The proceedings in the trial court

have been stayed by order of the Court

of Appeal pending a final decision of

this Court.

Proceedings in the Appellate Court

On June 18, 1980, petitioner filed

a Petition for Writ of Mandate in the

California Court of Appeal, First Appel-

late District.

On January 7, 1981 the Court of Ap-

peal, reaching the merits of the Fourth

Amendment contentions, denied the peti-

tion, affirming the trial court's refus-

al to suppress the evidence.

The Court of Appeal ruled that the

requirement that a warrant be obtained

for an arrest within the home absent ex-

igent circumstances or informed consent

=10«

is “inapplicable" when an undercover po-

lice agent is already in the home at the

invitation of the homeowner. For the

same reason, the Court of Appeal found

that the knock-notice requirement was

inapplicable. In the alternative, the

Court of Appeal ruled that the search

was valid under the warrant obtained af-

ter the arrest because the affidavit,

when stripped of the evidence obtained

as the result of the arrest, would still

be sufficient for the issurance of a

search warrant. The Court of Appeal al-

so ruled that the search warrant was not

overbroad in its authorization, contrary

to petitioner's assertion. Justice

Poche concurred only in the latter two

holdings.

On March 1l, 1981, the California

Court voted to deny a petition for hear-

ing.

ah le

REASONS FOR GRANTING WRIT

I

THE WARRANT CLAUSE DOES NOT ALLOW A

WARRANTLESS HOME ARREST BY POLICE

OFFICERS JUST BECAUSE THE HOMEOWNER

HAD PREVIOUSLY CONSENTED TO THE

ENTRY OF AN UNDERCOVER OFFICER WHO

DOES NOT PARTICIPATE IN THE ARREST

In Payton v. New York (1980) 445

U.S. 573, this Court answered the ques-

tion left open by United States v.

Watson, 423 U.S. 411: "Whether and un-

der what circumstances an officer may

enter a suspect's home to make a war-

rantless arrest."

Wiis «© se Ose). that.. the

Fourth Amendment to the

United States Constitution,

made applicable to the

States by the Fourteenth

Amendment, Ma v. Ohio, 367

U.S. 643; Wott v. Colorado,

338 U.S. 25, prohibits the

police from making a war-

rantless and nonconsensual

entry into a suspect's home

in order to make a routine

felony arrest. (445 U.S. at

576.)

In Payton, this Court analyzed in

detail and with enlightening clarity the

xy

history and purposes of the protection

afforded by the Warrant Clause of the

Fourth Amendment. Noting "the zealous

and frequent repetition", at the time of

this country's birth, “of the adage that

a man's house is his castle" (445 U.S.

at 596) and noting that nowhere is an

individual's privacy “more clearly de-

fined than when bounded by the unambigu-

ous physical dimensions of an individu-

al's home", this Court declared:

In terms that apply equally

to seizures of property and

to seizures of persons, the

Fourth Amendment has drawn a

firm line at the entrance to

the house. Absent exigent

circumstances, that thresh-

Old may not reasonably be

crossed without a warrant,

(445 U.S. at 590, emphasis

added. )

Moreover, this Court held that the

warrant requirement as a precondition to

a felony arrest in the home, was a “con-

stitutional command that we consider to

be unequivocal." (445 U.S. at 602) See

a

also, Steagald v. United States,

U.S. ss (April 21, 1981) slip opinion,

pp. 7-8 and cases cited.

However, applying this standard to

cases involving undercover agents con-

sensually in the home, various state and

federal courts are presently interpret-

ing this unequivocal constitutional com-

mand quite equivocally.

This issue is one which continually

confronts the courts at all levels of

the state and federal judiciary. The

facts leading to the challenged entry,

arrest and search "are typical of the

plethora of narcotics prosecutions which

fill the pages of modern legal history."

(United States v. Velasquez, 626 F.2d

314, 315 (3rd Cir. 1980).)

The court below found an easy

detour around this Court's clear holding

that absent exigent circumstances a

warrantless arrest in the home violates

wldn

the Warrant Clause. California avoids

the Warrant Clause simply by rendering

the “unequivocal command" of the Fourth

Amendment inapplicable to cases where

"an agent is invited by a suspect to en-

ter." Nor does it matter that, as in

our case, the undercover agent did not

participate in the arrest. Rather than

attempting to justify the warrantless

arrest in our case in terms of exigent

circumstances (conceded not to be pres-

ent), California allows consent to an

undercover agent's entrance to mean a

general waiver of the Fourth Amendment

rights guaranteed by Payton. A remark-

able--and dangerous--constitutional leap.

The decision of the court below

contains no reasoning to support its re-

sult; nor does it contain any policy

discussions as to why the Warrant Clause

could not serve its beneficial purposes

ite

even in a situation where there is an

undercover officer in the home. The im-

portance of security in the home as de-

tailed in Payton would seem to call for

protective efforts rather than the crea-

tion of new and dubious exceptions to

validate careless and totally unneces-

sary police action, 2

This exception, carved out without

precedent or reason, not only does vio-

lence to constitutional principles but

has the potential for creating abuses

and strategies to circumvent the re-

quirements of Payton.

The endless variations of police

practices involving undercover agents

2 Petitioner does not dispute the

existence of probable cause to make an

arrest. Nor could it be disputed by re-

spondents that this probable cause ex-

isted for at least several hours before

the warrantless arrest. Cf. Steagald v.

United States, U.S. (April 21,

1981) slip opinion p. 17.

~l6=

will produce a myriad of questions for

this Court. When does the warrant re-

quirement cease to exist when arresting

a person in his home? If an undercover

officer, gaining entry into a home under

the pretext of consumating an illegal

transaction, personally arrests the sus-

pect, is a warrant needed? If the agent

leaves shortly before the police make

the warrantless home arrest, has the

constitutional protection been waived?

What if the undercover agent is a paid

informer rather than a full time police

officer?

The constitutional questions pre-

sented by the common practice of utiliz-

ing undercover agents to ferret out

crime have been answered differently

when confronted by the various state and

federal courts. In our case the court

below has decided that in California

once an undercover agent is invited into

elJea

a home neither warrant nor exigent cir-

cumstances are required when a subse-

quent entry and arrest are carried out

by other officers. The inference is

clear: Consent given to the entry of an

undercover officer is a blanket waiver

of one's Fourth Amendment rights as to

all other officers.? No arrest warrant

is needed, no exigent circumstances need

be shown, and no notice of entry need be

given.

The lower court, in declaring

Payton inapplicable, erroneously relies

upon the statement of this Court in

Hoffa v. United States, 385 U.S. 293,

302, that the Fourth Amendment does not

protect "a wrongdoer's misplaced belief

that a person to whom he voluntarily

3 If the homeowner invites the under-

cover agent to "look around" is this al-

so a waiver of his right to be protected

against a warrantless search by any and

all other officers?

-18-

confides his wrongdoing will not reveal

it." Petitioner does not challenge this

rule but points ovt that it does not

create another exception to the consti-

tutional requirement of a warrant for a

home arrest. It has no application in

this case. It could have some applica-

tion where the undercover officer him-

self makes the arrest, 4 but not where

other officers, who easily could have

obtained an arrest warrant from a mag-

istrate, enter and make the arrest.

Other courts, in the light of

Payton, see the issue more clearly. In

4 Any arrest made by an undercover

agent himself almost certainly would in-

volve exigent circumstances as the situ-

ation might radically change from the

time he left and obtained an arrest war-

rant. In our case, the waiting agents

had adequate opportunity (and probable

cause) to obtain an arrest warrant be-

tween the entries of the undercover

agents, if not before the first entry.

Cf. Steagald v. United States,

U.S. (April 21, I581) slip opinion,

Pp. 17.

United States v. Velasquez, supra, an

undercover agent who had previously pur-

chased illegal drugs from appellant

Velasquez, arranged for a_ subsequent

purchase of drugs in Velasquez's home,

Additional federal agents accompanied

him to the residence, | No arrest or

search warrants were obtained. On a

prearranged signal from the undercover

source the other officers were to enter

the home to accomplish the arrest. The

facts, therefore, like the case at

bench, are similar to the many "“buy-

bust" narcotics prosecutions throughout

the country today. (The only difference

between Velasquez and the instant case

is that in the former, the undercover

agent had not actually seen the illegal

substance since it was in a brown paper

bag, although the actual “sale" had been

negotiated. The outside officers broke

in before he had seen the contents of

the bag. However, the undercover offi-

cer had just purchased illegal drugs

from Velasquez the day before and cer-

tainly had probable cause to make an

arrest.)

The court in Velasquez, rather than

declaring Payton inapplicable as_ the

lower court did here, instead cites the

Payton requirement that a warrantless

arrest in the home requires exigent cir-

cumstances, and correctly focuses on the

fundamental constitutional question:

Are there exigent circumstances excusing

the requirement of a warrant when an ar-

rest is made in the home?

The question whether or not the

consensual entry of an undercover agent

creates an additional exception to the

warrant requirement can be phrased in

another way: Does the “invited" entry

of an undercover agent into one's home

Ce

unknowningly waive the occupant's expec-

tations of privacy not only as to that

undercover officer, but also to a class

of persons whose very existence is un-

known?

This issue has been faced by the

courts in cases involving state and fe-

deral "“knock-notice" requirements. In

State v. Dugger (Wash.App. 1974), 528

P.2d 274, an undercover officer was con-

sensually in a home where illegal gam-

bling was taking place, when by prear-

ranged plan other officers entered the

home without knocking or _ announcing

their identity or purpose. The officers

had not obtained either a search warrant

or arrest warrant. The undercover offi-

cer took no part in the arrest.

The state asserted that the pres-

ence of the undercover officer inside

the premises prior to the entry of the

other officers excused compliance with

=220

the knock-notice statute. The Washing-

ton court, in disagreeing with’ the

state's contention, addressed the ques-

tion of whether an invitation to an un-

dercover officer to enter a home, when

that officer has legal authority to ar-

rest, extends those same rights to other

officers who subsequently enter and ar-

rest the suspect. The court rejected

any “waiver of privacy" theory and held

that the mere presence of an undercover

officer whose status is unknown to the

occupants does not waive legal require-

ments for entry and arrest by other of-

ficers. (528 P.2d at 277.) Rather, the

court, in reasoning equally applicable

to warrantless arrest cases, considered

whether exigent circumstances were pres-

ent to excuse compliance with the knock-

notice requirements, concluded’ there

were none, and ordered suppressed evi-

dence seized as a result of the illegal

@23<

entry.

The Florida courts have reached the

same constitutional conclusion in simi-

lar circumstances. In Hansen v. State

of Florida, (Fla.App. 1979), 372 So.2d

1003, again the court was confronted

with the archetypal “buy-bust" situa-

tion. Two undercover officers gained

entry into a dwelling by posing as po-

tential purchasers of marijuana, and

other officers, on prearranged signal,

entered the residence through an un-

locked door, arrested the occupants and

seized the marijuana. The court held

this contravened the state knock-notice

statute and in the absence of exigent

circumstances the arrest and seizure of

evidence were unlawful. As did the

Washington court, the Florida court ex-

pressly rejected any “implied invita-

tion" theory:

~24<

The officers who entered

without “knocking and an-

nouncing" made the arrests

and seized the contraband.

These officers had no im-

plied invitation to enter

the premises ° ° ° °

Rather, they were entering

the premises to effectuate

an arrest for a felony and

could only do so after an-

nouncing their authority and

purpose. (372 So.2d 1005.)

See also, State v. Roman, (Fla.App.

1975), 309 So.2d 212.

Petitioner notes that a line of

cases coming to a different conclusion

exists, indicating that the lawful pres-

ence of an undercover officer precludes

any argument that later entries violate

the privacy of occupants, and negates

any knock-notice requirements, without

any consideration of exigent circumstan-

ces. (See United States v. Glassel, 488

F.2d 143 (9th Cir. 1973); United States

v. Bradley, 455 F.24 1181 (lst Cir.

1972); Grzesrowski v. State, 343 N.E.2d

305 (Ind. 1976); People v. McCoy (1974)

-25-

40 C.A.3d 854.)

It is apparent that further guide-

lines from this Court are needed on this

common and fundamental issue. Petition-

er requests that the Court grant the pe-

tition in order to resolve this continu-

ing source of disputes in lower courts

concerning the Warrant Clause.

II

THE FOURTH AMENDMENT DOES NOT ALLOW

A HOME ENTRY BY POLICE WITHOUT

ANNOUNCEMENT AND NOTICE JUST BECAUSE

THE HOMEOWNER HAD PREVIOUSLY CONSENTED

TO THE ENTRY OF AN UNDERCOVER AGENT

In the case at bench, the facts

clearly disclose not only the absence of

an arrest warrant, but a failure on the

part of the officers entering petition-

er's home to knock and announce their

purpose. Such an action was in contra-

vention of the California "knock-notice”

statute, a statute similar to those en-

acted in most states and to that of the

=26~

United States Code. (18 U.S.C. § 3109.)

The knock and announce rule codi-

fied in these statutes was known at com-

mon law. (In Semayne's Case, 77 Eng.Rep.

194, 195-196 (K.B. 1603). At least four

members of this Court concluded in Ker

v. California, 374 U.S. 23, that the

Fourth Amendment is violated by an unan-

nounced police intrusion into a private

home, with or without an arrest warrant,

absent certain exigent circumstances.

Justice White, in his dissent in

Payton v. New York, supra, joined by the

Chief Justice and Justice Rehnquist,

confirms the view that the knock and an-

nounce rule is a constitutional standard

and a restriction on arrests in the home

absent exigent circumstances. (445 U.S.

at e)

The answer to the question whether

an undercover officer already in the

home vitiates this constitutional knock

=27e

and announce requirement as applied to

the subsequent entry and arrest by other

officers, rests upon the same principles

and arguments regarding the need for

warrants for an arrest in the _ home.

Does the presence of such an officer

Place the situation entirely outside the

Fourth Amendment, or must a court consi-

der whether exigent circumstances were

present? As the same argument is appli-

cable, petitioner incorporates part I of

his Petition, supra, at this point.

III

THE EVIDENCE SOUGHT TO BE SUPPRESSED

CANNOT BE ADMITTED ON THE INDEPENDENT

GROUND THAT EVIDENCE NOT BASED ON THE

ARREST WAS SUFFICIENT TO SUPPORT A

SEARCH WARRANT BECAUSE SUCH A RULING

ENCOURAGES POLICE LAWLESSNESS AND

VIOLATES FOURTH AND FOURTEENTH

AMENDMENTS

In part III of its opinion the

Court of Appeal (Appendix), assuming

arguendo that petitioner's arrest in his

=28@

apartment was illegal, ruled that the

evidence seized in petitioner's apart-

ment in the subsequent execution of a

search warrant would be admissible at

petitioner's trial because the affidavit

contained observations of undercover

agents gathered independently of the il-

legal arrest which would be sufficient

to support the magistrate's finding of

probable cause to believe that contra-

band was present. There is no question

that the affidavit also contained sub-

stantial incriminating facts viewed by

the arresting officer in the course of

the illegal arrest in that he observed

in the apartment a plastic bag contain-

ing approximately 14 ounces of a white

powdery substance which appeared to be

cocaine and saw devices generally found

in locations where illicit drug sales

are being made. There is also no ques-

tion that the magistrate relied upon

729=

these illegally-obtained facts in autho-

rizing the warrant. Without the latter

facts, no one knows whether the magis-

trate would have issued the warrant.

There is presently no _ accepted

standard for determining the Fourth

Amendment validity of a search warrant

based upon a tainted affidavit. The

case of James v. United States (D.C.

Cir. 1969) 418 F.2d 1150, 1151-1152 set

up a proposed test based upon the

court's interpretation of the "indepen-

dent source" test articulated in Wong

Sun v. United States (1963). 371 U.S.

471. Under James, supra, if the un-

tainted information contained in an af-

fidavit is sufficient to establish prob-

able cause considered by itself, the

search is validated and the exclusionary

rule need not apply to the evidence

seized. This Court has approached the

issue in two footnotes in United States

-30-

v. Giordano (1974) 416 U.S. 505, a case

involving an improperly authorized tele-

phone tap and two subsequent installa-

tions of "pen registers" to monitor the

numbers called from that telephone. The

Court affirmed the lower court's sup-

pression of all of the evidence thus ob-

tained even though the pen register

orders were obtained by applications

containing information not derived from

the illegal wire taps. In footnote 2

the Court states:

We therefore agree with the

Court of Appeals, for the

reasons discussed in part

IV, infra, that evidence

gathered under the wire tap

and pen register extension

orders is tainted by the use

of unlawfully intercepted

communications under the

October 16 order to secure

judicial approval for the

extensions and must be sup-

pressed.

In footnote 19 the Court states that the

illegally monitored conversations should

be considered a “critical element" in

«$a

extending the pen register authority and

therefore evidence obtained by the lat-

ter authority must also be suppressed,

Several other courts have read Giordano

as establishing a constitutional re-

quirement that a search warrant affida-

vit containing significant tainted in-

formation requires that the entire war-

rant be declared illegal. See Common-

wealth v. Hall (1975) 336 Mass. 790, 323

N.E.2d 319; United States v. Langley,

466 F.2d 27 (6th Cir. 1972).

The court in Commonwealth v. Hall,

(supra at p. 323) clarified the defini-

tion of "critical element":

{[A]n impressive or important

element in relation to the

totality of material put be-

fore the court, even though

the rest would independently

merit approval."

Thus, the James test, which pro-

motes the excision of tainted material,

has given way to a test which scruti-

= 32m

nizes the extent of the illegal informa-

tion. If more than a minor portion of

the affidavit is tainted the court

should not have to engage in specula-

tion, the warrant should be ruled inva-

lid, and the evidence gathered thereun-

der suppressed. See Langley, supra;

United States v. Nelson, 459 F.2d 884,

889-890 (6th Cir. 1972).

However, the courts fail to agree

on the effect of Giordano's critical

element analysis, with some courts in-

terpreting that case as merely applying

a "but for" test to affidavits. United

States v. Marchland, 564 F.2d 983, 994

(D.C. Cir. 1977).

The analysis of Nelson, supra, and

Langley, supra, is the better one be-

cause if the courts merely excise taint-

ed material the police are tempted to

make illegal searches to bolster other-

wise borderline affidavits. Under the

Pan

James approach they are no worse off

having ignored the Fourth Amendment pro-

tection against illegal searches and

seizures afforded individuals.

The “critical element" approach is

supported by other state precedent. In

Raymond v. Superior Court (1971) 19

C.A.3d 321 the California Court of Ap-

peal held that information acquired by

an illegal search could not be excised

from the search warrant affidavit and

the remainder of the affidavit tested

for adequate support for the search war-

rant. Justice Friedman noted that the

reviewing court could not ignore aver-

ments of the affidavit which formed

“substantial ingredients of the probable

cause found by the magistrate." (19

C.A.3d at 327.) Since the illegal

search "formed a substantial immovable

part of the affidavit upon which the

search warrant was issued" the search

a3aio

warrant was “come at" by exploitation of

the illegality and its products had to

be suppressed. (19 C.A.3d at 327.)

The holding of the Raymond case and

of those cases following the "critical

element" analysis of Giordano, supra, is

the only approach that adequately in-

sures against police illegality. With-

out the direct observations of the ar-

resting officer there is simply no tell-

ing what the magistrate would have done

with regard to the application for the

search warrant. In the present case il-

legal observations were substantial. As

Raymond states at p. 327:

A reviewing court’ should

avoid exercises of discre-

tion and factual determina-

tions to which the original

tribunal has never addressed

itself.

Obviously the search warrant in this

case, as in Raymond, was tainted with

the illegality of the arrest and “come

at" by exploitation of the illegality,

requiring the suppression of evidence

obtained under its authority.

Professor LaFave's analysis of the

problem is in accord with the Raymond

case. He writes:

If the illegally-obtained in-

formation is merely stricken

and the balance of the affi-

davit assessed as if the

tainted information had

never been included, then

police are tempted to make

illegal searches to bolster

what would otherwise be bor-

derline affidavits. If the

illegality is never uncov-

ered, then they have a war-

rant solidly based on proba-

ble cause where otherwise

their warrant application

might have been rejected,

If, on the other hand, the

illegality does come to

light on the subsequent mo-

tion to suppress, the police

are no worse off than if

they had not made the ille-

gal search. LaFave, Search

and Seizure, A Treatise on

the Fourth Amendment, § 11.4,

Vol. 3, p. 651.

The holding in People v. Cook (1978) 22

C.3d 67 is strikingly parallel. The

-36-

California Supreme Court had approved in

a previous case, Krauss v. Superior

Court (1971) 5 C.3d 418, a police "con-

firmatory" illegal search to verify in-

formation from a citizen-informant so

long as the information contained in the

“confirmatory search" was not placed in

the search warrant affidavit and not

considered by the magistrate who issued

the search warrant. This holding was

re-examined and found to be unwise in

Cook since the Krauss holding had taught

police that they had nothing to lose by

making illegal searches to verify infor-

mation reaching them by legal means. The

Court stated:

After Krauss, a police offi-

cer need not rely solely on

lawfully obtained probable

cause; he can instead

achieve “certain cause" by

conducting an unlawful con-

firmatory search, thus sav-

ing himself the time and

trouble of obtaining and ex-

ecuting a warrant if he does

not find the evidence. He

a3 Pa

can safely engage in this

conduct because Krauss teach-

es him that if the evidence

does turn up in the course

of the illegal search, he

will still be allowed to

seize it later in a second

"search" under color of a

warrant. The latter pros-

pect thus gives him strong

incentive to proceed with

the warrantless entry. Yet

every time he fails to find

the suspected evidence, he

also has invaded the privacy

of a citizen innocent of any

wrongdoing. The second

“search” is therefore con-

stitutionally unreasonable

because it significantly

contributes to increasing

the risk of such invasions

of privacy. [22 C.3d at 98-

99.]

The lower court's opinion in this case

would have been exactly the result con-

demned in Cook. Police officers believ-

ing that their probable cause to obtain

a warrant was weak could bolster their

affidavits by illegal activities and

would have nothing to lose thereby since

the only penalty would be the excision

of material illegally obtained and the

-38-

testing of the warrant on the remaining

allegations. Just as in Cook, the risk

to invasions of privacy of innocent per-

sons is substantially increased by such

practices. Thus, there must be some

standard that takes into consideration

the significance of the illegal materi-

al. If a substantial portion of the af-

fidavit recites facts inextricably

linked to police conduct violative of

the Fourth Amendment, the court's scru-

tiny should be directed toward analyzing

the taint of that material, not simply

the substantiality of the remaining in-

formation after excision,

Whatever this Court's decision may

be as to the constitutional standard for

the analysis of tainted affidavits, a

clear pronouncement of such a standard

and further guidance from this Court is

required.

-39-

IV

CONCLUSION

It seems clear that the presence of

an undercover agent in the home should

not create an exception to the Payton

requirement under all circumstances.

The issue is one which has been much

disputed and will continue to be _ so

until this Court resolves its constitu-

tional parameters. The effect of the

tainted search warrant affidavit is also

an unsettled constitutional issue which

can be resolved in this case.

For these reasons, a Writ of

Certiorari should be granted.

DATED: May 10, 1981

Respectfully submitted,

KRAUSE, SHELL & GRANT

By

° USE

RICHARD M. GRANT

Attorneys for Petitioner

(APPENDIX FOLLOWS)

-40-

APPENDIX

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION FOUR

1 Civil No. 49876

(Sup.Ct.No. 7436)

PHILIP CHARLES TOUBUS,

Petitioner,

VS.

SUPERIOR COURT, MARIN COUNTY,

Respondent,

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

i ss ess es Es

Philip Charles Toubus has petitioned

for a writ to compel respondent superior

court to suppress evidence (Pen. Code

§ 1538.5, subd. (m)) and consequently to

set aside (Pen. Code § 999a) an informa-

tion charging him with possession for

sale of cocaine (Health & Saf. Code,

§ 11351), trafficking in cocaine (Health

A-1

§ Saf. Code, § 11352), trafficking in

amphetamines (Health & Saf. Code § 11377,

subd. (a)).

The motion to suppress was submitted

on the preliminary hearing transcript,

which showed that an informant named Liz

and an undercover agent of the Department

of Justice, Christie McCampbell, went to

petitioner's apartment in Larkspur to buy

cocaine. The agent was introduced as the

girlfriend of informant's cousin. Previous

telephone conversations had established

that the informant's cousin was going to

purchase the cocaine. Petitioner produced

a bag of white powder; after viewing a

demonstration that the powder was cocaine,

McCampbell and Liz left the residence to

get agent Ken Brown, the pretended pur-

chaser. They met with three agents and

reported on the situation. McCampbell,

Liz and Brown returned to the apartment

where Brown was introduced as Liz' cousin.

A-2

Brown then tested the cocaine and told

Liz to go out and get a scale to weigh

the powder. Her departure was actually

a prearranged signal to Agent Platt, the

officer in charge of the investigation,

to enter and arrest petitioner.

Platt and two other officers who en-

tered to make the arrest were in civilian

clothes. The door had been left ajar

and the officers came in without knocking.

As they came through the door, they iden-

tified themselves as police officers.

They arrested petitioner and also hand-

cuffed Brown in order to hide his identity

as a police officer. The arresting offi-

cers then made a cursory search of the

residence to determine if there were any

other people there.

Platt then obtained a warrant to search

the premises for cocaine, narcotic para-

phernalia, articles tending to establish

identity and "any papers or writings,

A-3

records that evidence dealings in con-

trolled substances including, but not

limited to address books, ledgers, lists,

notebooks, etc."

While Platt was obtaining the search

warrant, Brown remained to secure the pre-

mises; he later assisted Platt in execu-

ting the wararnt and seizing the contraband

which is the subject of the pending charges.

This included the cocaine which Brown had

tested in the living room as well as pills

and more cocaine found in a yellow bag

in the front bedroom.

Petitioner's argument includes six

propositions: (1) since he was arrested

in his own residence without the benefit

of a judicially approved arrest warrant,

his arrest is "presumptively unreasonable

and illegal under both the state and feder-

al Constitutions," citing Payton v. New

York (1980) 445 U.S. 573, and People v.

Ramey (1976) 16 Cal.3d 263; (2), there

A-k

are no "“exigent'"' circumstances to remove

the case from the proscriptions of Payton

and Ramey; (3), the arrest was in any

event unlawful since the officers who

actually made the arrest did not comply

with the knock-notice requirement of Penal

Code section 844; (4), therefore, the

"fruits'' of that arrest are tainted and

must be suppressed, citing Wong Sun v.

United States (1963) 371 U.S. 471; People

v. Cook (1978) 22 Cal.3d 67; People v.

Solario (1977) 19 Cal.3d 760; and People

v. Negrete (1978) 82 Cal.App.3d 328; (5),

the fruits of the illegal arrest include

the observations of the illegally arrest-

ing agent; and (6), the search warrant,

"based upon the arrest and seizure" of

the petitioner, is invalid and everything

seized thereunder must be suppressed.

Was The Warrantless Arrest Of

Defendant Unconstitutional?

Petitioner contends, relying on Payton

v. New York, supra, 445 U.S. 573, and

People v. Ramey, supra, 16 Cal.3d 263,

that his arrest without a warrant in his

own home was presumptively unreasonable

and illegal. In Payton and Ramey, a crime

had been committed. The police developed

probable cause to arrest a suspect and

entered the suspect's residence to arrest

him without first obtaining a warrant.

The United States Supreme Court in Payton

and the California Supreme Court in Ramey,

held it is the entry into a home that is

the evil condemned by the Fourth Amendment.

In Payton, Justice Stevens quotes from

Judge Leventhal who, in Dorman v. United

States (1970) 435 F.2d 385, after first

noting that arrests in public places are

valid, states: "'A greater burden is placed

on officials who enter a home or dwelling

A-6

without consent. Freedom from intrusion

into the home or dwelling is the arche-

type of the privacy protection secured

by the Fourth Amendment.''"' (Payton Vv.

New York, supra, at p. 587, emphasis ad-

ded.) The Supreme Court then quoted ap-

provingly from United States v. Reed (1978)

572 F.2d 412: "'To be arrested in the

home involves not only the invasion at-

tendant to all arrests but also an inva-

sion of the sanctity of the home. This

is simply too substantial an invasion to

allow without a warrant, at least in the

absence of exigent circumstances. .. ."

(Payton v. New York, supra, 445 U.S. at

pp. 588-589, emphasis added.)

Likewise, The California Supreme Court

in Ramey said: ‘we believe that the

Fourth Amendment prohibits a warrantless

entry into a dwelling to arrest in the

absence of sufficient justification for

the failure to obtain a warrant." (People

A-7

v. Ramey, supra, 16 Cal.3d 263 at pp. 274-

275, emphasis added.) But this does not

imply that warrantless arrests in general

must be justified by exigent circumstances

excusing the lack of a warrant, and the

Supreme Court expressly limited its holding

to warrantless entries of dwellings for

the purpose of making arrests within those

dwellings. (People v. Ramey, supra, 16

Cal.3d 263 at p. 275, fn. 5.)

Payton and Ramey are inapplicable where

an agent is invited by a suspect to enter.

(People v. Evans (1980) 108 Cal.App.3d

193, 196.) Petitioner argues that the

entry here was not consensual since it

was obtained by subterfuge. The argument

is factually unfounded. Petitioner admit-

ted McCampbell and Brown to sell them co-

caine. McCampbell and Brown entered to

purchase cocaine from him. There was no

ruse. The Fourth Amendment does not pro-

tect "a wrongdoer's misplaced belief that

A-8

a person to whom he voluntarily confides

his wrongdoing will not reveal it." (Hoffa

v. United States (1966) 385 U.S. 293, 302.)

Does Failure To Comply With Penal Code

Section 844 Invalidate The Arrest?

Petitioner contends that the arrest

was invalidated by failure to comply with

Penal Code section 844. Section 844 pro-

vides in pertinent part: "To make an

arrest... a peaceofficer, may break

open the door or window of the house in

which the person to be arrested is, ...

after having demanded admittance and ex-

plained the purpose for which admittance

is desired.'' The purposes of the statute

are: (1) The protection of the privacy

of the individual in his home; (2) the

protection of innocent persons who may

also be present on the premises where

an arrest is made; (3) the prevention

of situations which are conducive to vio-

lent confrontations between the occupant

A-9

and individuals who enter his home without

proper notice; and (4) the protection of

police who might be injured by a startled

and fearful householder."' (People v.

Solario, supra, 19 Cal.3d 760, at p. 763.)

None of those purposes would be served

by requiring compliance with the statute

when a crime is in progress.

Here, there was no occasion to protect

the privacy of petitioner in his home since

a peace officer who already possessed prob-

able cause to arrest was already in that

home; there were no innocent persons on

the premises who needed protecting; it

was unlikely the entry without notice would

provoke a violent confrontation; and with

two officers already present on the premis-~-

es it is highly unlikely that the police

would be in any danger from actions taken

by a fearful defendant. The officers who

came in to make the arrest acted to assist

their fellow officers who were lawfully

A-10

inside the apartment and who had probable

cause to make an arrest for a felony then

being committed in their presence; inet

the officers chose to seek the help of

their colleagues in accomplishing the

arrest in their presence is not improper.

(Cf. People v. Cornejo (1979) 92 Cal.App.3d

637; People v. McCoy (1974) 40 Cal.App.3d

854.)

Was The Search Warrant '"'Based Upon"

Petitioner's Illegal Arrest?

Petitioner contends that asserted

unlawfulness of the arrest vitiates, as

support for the search warrant, information

obtained at the time of the arrest. The

officer who actually made the arrest relat-

ed in his affidavit that he saw "a plastic

bag containing approximately 14 ounces

of white powdery substance, which appeared

to be cocaine, on a table in the living

room.'' He saw an "Ohaus scale" in the

front bedroom, and stated that he "has

A-11

seen Ohaus scales used as a weighing device

on many occasions in which illicit drug

sales were being made."' Also set out in

the affidavit are the personal observations

of agents McCampbel and Brown, whose pres-

ence in the residence at the time of their

Observations was concededly lawful.

Although we hold otherwise, assuming

arguendo that the affiant's observations

were the fruits of an unlawful arrest and

must be excluded, is the warrant thus ren-

dered invalid? The question is whether,

considering only the personal observations

of McCampbel! and Brown, was there a sub-

stantial basis for concluding that contra-

band was to be found on petitioner's prem-

ises. (People v. Hill (1974) 12 Cal.3d

731, 759, citing Theodor v. Superior Court

(1972) 8 Cal.3d 77, 100-101, fn. 14.)

The affidavit showed, without reference

to any observations of the arresting offi-

cer, that (1) agent McCampbell went to

A~-12

the home of petitioner; (2) she was admit-

ted by him; (3) she was shown approximate-

ly one pound of white powdery substance

which petitioner told her was cocaine;

(4) she left and immediately returned

with fellow-agent Brown, who was to pur-

chase the cocaine; (5) both were admitted

by the defendant; (6) Brown tested the

powder to verify that it was cocaine;

(7) the test was positive; and (8) Brown

was qualified to make the test. This

competent evidence was sufficient to sup-

port the magistrate's finding of probable

cause to believe that contraband was pre-

sent. The affiant's informants (fellow

agents) spoke from personal knowledge

concerning their actions and observations

(see Aguilar v. Texas (1964) 378 U.S. 108),

and affiant gained all of his information

through “official channels" (see People v.

Ruster (1976) 16 Cal.3d 690). We conclude

that the warrant was valid whether or not

A-13

the arrest was lawful.

Vv

Should The Seized Pills Be Suppressed

As Beyond The Warrant's Scope?

Contraband pills (methaqualone, amphe-

tamine, methylenedioxy amphetamine), not

mentioned in the warrant, were seized at

the place authorized to be searched. There

is no evidence suggesting that the police

were not acting in good faith in executing

the warrant. Itt was proper for them to

seize the additional contraband which they

found. (Skelton v. Superior Court (1969)

1 Cal.3d 144, 157.)

V

Is The Search Warrant Unconstitutionally

Broad and Vague?

Petitioner attacks the part of the

warrant that authorizes seizure of "any

papers or writings, records that evidence

dealings in controlled substances including,

but not limited to address books, ledgers,

lists, notebooks, etc.'' He claims the

A-14

quoted language "is so broad and vague

that it has absolutely no limits.'' This

argument ignores the qualifying clause -

"that evidence dealings in controlled

substances"; each record, book, etc. seized

must evidence dealings in controlled sub-

Stances. As so limited, the authorization

“is not "overly broad."

Petitioner further complains that

many items not described in the warrant

were seized under color of its authority.

But the law makes provision (Pen. Code,

§ 1540) for recovery of such items by

the person entitled to possession. Sup-

pression of contraband or other evidence

which was covered by the warrant is not

an available remedy.

Petitioner argues that the quoted

language ''substantially interferes with

the defendant's right of privacy under

the state and federal Constitutions."

The same may be said of every warrant

A-15

authorizing law enforcement officers to

search a citizen's home; hence, the con-

stitutional requirement of a judicially

authorized warrant supported by probable

cause. The argument is without merit.

The alternative writ is discharged;

the petition is denied.

CERTIFIED FOR PUBLICATION

Anderson, J.*

|! Concur:

Christian, J.

* Assigned by the Chairperson of the Judicial

Council.

A-16

! concur in the judgment and in parts

1V and V of the lead opinion.

Before the entry by the three officers

led by Officer Platt which gives rise

to appellant's contentions, other under-

cover police officers were already lawfully

in the residence and were eyewitnesses

to the "buy."' With respect to them no

Ramey or knock-notice problems arise.

The observations of these officers formed

an independent basis for the search warrant

and for the seizure of each item sought

to be suppressed. Accordingly, | see

no need to address the issues, particular-

ly those of constitutional dimension,

discussed in parts |, I! and It! of the

lead opinion. Any illegality involved

in the arrest by the other officers or

by the entry of the residence by them

is irrelevant for purposes of evaluating

the denial of this 1538.5 motion.

Poche, J.

A-17

Trial Court: Superior Court

Marin County

Trial Judge: Hon. Warren E. McGuire

Attorneys for

Petitioner: KRAUSE, TIMAN, BASKIN,

SHELL & GRANT

Wood Island, Suite 207

60 E. Sir Francis

Drake Blvd.

Larkspur, CA 94939

Attorneys for Real

Party in Interest: George Deukmejian,

Attorney General,

State of California

Robert H. Philibosian,

Assistant Attorney

General Criminal

Division

Edward P. O'Brien

Assistant Attorney

General

Robert R. Granucci,

Deputy Attorney General

Ronald E. Niver, Deputy

Attorney General

6000 State Building

San Francisco, CA 94102

A-18

Order Denying Hearing

After Judgment by the Court of Appeal

Ist District, Division 4, 1 Civ. No. 49876

In the Supreme Court of the State of California

IN BANK

Toubus

Ve

Superior Court, Marin

[Filed March 11, 1981]

Appellant's petition for hearing DENIED.

/s/ BIRD

Chief Justice

A-19

CERTIFICATE OF SERVICE BY MAIL

BY ATTORNEY (C.C.P. 1013A (2))

1, MARSHALL W. KRAUSE, hereby certify that |

am an active member of the Bar of the Supreme

Court of the United States, and not a party to

the within action. That my business address is

Wood Island, Suite 207, 60 E. Sir Francis Drake

Bivd., Larkspur, CA 94939. That | served three

true copies of the attached Petition for Writ of

Certiorari on each of the following:

County Clerk

Hall of Justice

Marin County Civic Center

San Rafael, CA 94903

George Deukmejian, Attorney General

of the State of California

Department of Justice

6000 State Building

San Francisco, CA 94102

which envelopes were then sealed and postage fully

prepaid thereon, and thereafter were on May 11,

1981 deposited in the United States mail at San

Rafael, California.

All parties required to be served have been

served.

Dated: May 11, 1981 -